NexPoint Advisors, L.P. v. TICC Capital Corp. et al

Filing 59

RULING (see attached) GRANTING in part and DENYING in part 2 Plaintiff's Motion for a Preliminary Injunction. Signed by Judge Charles S. Haight, Jr. on October 23, 2015. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

NEXPOINT ADVISORS, L.P.,
Civil Action No.
3:15-cv-1465 (CSH)

Plaintiff,
v.
TICC CAPITAL CORP., JONATHAN H.
COHEN, CHARLES M. ROYCE, STEVEN
P. NOVAK, G. PETER O'BRIEN, TONIA L.
PANKOPF, AND SAUL B. ROSENTHAL,

OCTOBER 23, 2015

Defendants.

RULING ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
HAIGHT, Senior District Judge:
In this action under the federal securities laws, with state statutory and common law claims
appended, the plaintiff is a corporate investment advisor presently engaged in an unsolicited and
hostile effort to take over the corporate defendant's investment advisory business. Plaintiff's
pleadings and submissions do not use the verb "take over" or the noun "takeover," but that is the
sought-after consequence of what Plaintiff now asks the Court to do.
What plaintiff now asks the Court to do is preliminarily enjoin the manner in which
defendant will prepare for and conduct a special meeting of its stockholders, previously scheduled
for October 27, 2015.1 Plaintiff filed its motion for a preliminary injunction on October 8, 2015.
See Doc. 2. Defendants resist it. Able counsel submitted exhaustive briefs under pressure. The
1

On October 21, 2015, the Court ordered that the special meeting be postponed
indefinitely. Doc. 52.
1

Court heard oral arguments throughout the day of October 16. This Ruling resolves the motion.
I
Background
The plaintiff is NexPoint Advisors, L.P. ("NexPoint"), an SEC-registered investment advisor
whose corporate headquarters are in Texas.
On August 20, 2015, NexPoint purchased 100 common shares, at a total cost of $670.50, in
the corporate defendant, TICC Capital Corp. (" TICC"). TICC is an investment company organized
under Maryland law and headquartered in Connecticut. TICC's assets are managed by TICC
Management, L.L.C. ("TICC Management"), an external investment advisor and separate corporate
entity, pursuant to an investment advisory agreement signed by the two companies ("the Advisory
Agreement") which is reviewed annually by the TICC board of directors.
NexPoint and TICC are notably substantial companies, even for these moneyed times. Each
company has under management assets totaling in the billions of dollars. The investment advisory
fees generated by such businesses total in the millions. As of August 31, 2015, according to its
public filings, the number of TICC's common shares was 59,987,986. Doc. 1-2, at 15.2
On August 4, 2015, TICC announced in a public release that TICC Management had entered
into an agreement with Benefit Street Partners L.L.C. ("BSP"), pursuant to which an affiliate of BSP
would acquire TICC Management ("the Transaction"). The closing of the Transaction was
"contingent," the TICC release stated, "upon approval by the Company's stockholders of a new
investment advisory agreement between the Company and TICC Management, LLC, the election of

2

Where feasible, page citations are to the internal page numbers of the record documents.
Otherwise, citations are to the page numbers of the docketed PDF documents.
2

four new independent directors, and other conditions that will be described in a related proxy
statement." Doc. 1-3.
NexPoint sent a letter dated August 11, 2015 to the TICC board of directors which referenced
BSP's proposed acquisition of TICC Management, and noted that the acquisition would result in the
replacement of TICC Management's management team and officers, so that "the Board is in effect
being asked to consider an entirely new adviser for the Company." Doc. 1-6, at 1. "We would
appreciate," NexPoint stated, "the opportunity to be considered for that role as well." NexPoint went
on in its August 11 letter to describe its prowess as an investment advisor and submit to the TICC
Board "the details of our alternative proposal to the Company, which we believe would provide more
significant and direct benefits to the Company and its stockholders than the BSP Proposal." Id.
Nothing came of this unsolicited overture by NexPoint to TICC.

The particular

circumstances of its rejection are discussed infra. It is sufficient for this Background Part to say that
a time came when it was apparent that TICC had rejected NexPoint's proposal. NexPoint bought
100 shares of TICC on August 20, 2015. Doc. 1-1. It is a fair inference that by that time, NexPoint,
having realized that TICC was probably not going to prefer its proposal over the BSP proposal,
became a minimal stockholder in TICC in preparation for the proxy war soon to begin. In any event,
on September 3, 2015, TICC sent its stockholders a notice of a Special Meeting of Stockholders to
be held on October 27, 2015. Doc. 1-2, at 4. The notice summarized the proposed "New Advisory
Agreement" between TICC and BSP, and added:
The Transaction would result in a change in control of the Adviser,
and as a result, an assignment and subsequent termination of the
current investment advisory agreement, dated July 1, 2011, between
the Company and the Adviser (the "Existing Advisory Agreement")
in accordance with the Investment Company Act of 1940, as amended
3

(the "1940 Act"). The stockholders of the Company are being asked
to approve a new investment advisory agreement between the
Company and the Adviser (the "New Advisory Agreement"). . . .
In addition, the Company's stockholders are being asked to vote on
the election of the six director nominees named in the accompanying
Proxy Statement.
Id. The notice then advised stockholders that the Special Meeting "is being held for the following
purposes":
1.

To approve the New Advisory Agreement between the
Company and the Adviser, to take effect upon a change of
control of the Adviser in connection with the Transaction;
[and]

2.

To vote on the election of the six director nominees named in
the attached Proxy Statement and in the proxy card to serve
on the Board of Directors for the terms specified in the Proxy
Statement; . . .

Id., at 6.
NexPoint's complaint alleges that TICC's
September 3, 2015 proxy statement made clear that TICC's Board of
Directors was unwilling to seriously consider the NexPoint Proposal
or inform TICC stockholders about it. That being the case, NexPoint
made the decision not only to exercise its right at the Special Meeting
to vote against the New Advisory Agreement, but also to nominate its
own slate of six directors . . . to fill the four newly created
directorships and to replace defendants Cohen and Royce on the
TICC Board of Directors.
Doc. 1, ¶ 65.
NexPoint is currently engaged in a brisk proxy war with TICC, wherein NexPoint's objectives
are to persuade TICC stockholders to reject the BSP proposal at the October 27 special meeting,
elect NexPoint's slate of six TICC directors instead of TICC's nominees, and, ultimately, to accept

4

NexPoint’s proposal instead.
NexPoint filed its complaint in this action on October 8. Doc. 1. The defendants are TICC
and six individuals: Jonathan H. Cohen, Charles M. Royce, Steven P. Novak, G. Peter O'Brien,
Tonia L. Pankopf and Saul B. Rosenthal. The first five individuals are officers of TICC and
members of the corporation's board of directors. Rosenthal is TICC's president, but he is not a
director.
If TICC's proposed Transaction with BSP goes through, Cohen and Royce will leave TICC
and be replaced on the TICC board by two TICC nominees affiliated with BSP. Four new directors
have been nominated by TICC. Novak, O'Brien and Pankopf will remain on the board. TICC's postTransaction board will consist of nine directors, instead of the present board of five.
NexPoint's complaint asserts four causes of action. The first and second causes of action
allege violations of Section 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15
U.S.C. § 78n(a), and the regulations promulgated thereunder, 17 C.F.R. § 240.14a-9(a). These
causes of action assert that the statements and disclosures contained in TICC's proxy statements in
respect of the October 27 special meeting are false or misleading.
The third cause of action in NexPoint's complaint continues to focus upon TICC's proxy
statements. The cause of action alleges that TICC's failures of disclosure violated "the common law
duty of candor."
The fourth cause of action, captioned "for breach of contract," alleges that the manner in
which TICC proposes to elect its nominated directors at the special meeting violates provisions in
the TICC corporate bylaws. NexPoint grounds this claim upon those bylaws and the common law
of contract.
5

NexPoint moves under Fed. R. Civ. P. 65(a) for a preliminary injunction, whose terms and
directions are for the most part consistent with NexPoint's theory of the case as pleaded in the
complaint. Defendants contend that NexPoint's motion must be denied in its entirety. The parties
agree that the disputes are essentially legal rather than factual. Neither side requested an evidentiary
hearing and none was held. This Ruling is based on the pleadings, exhibits, briefs of counsel, and
oral arguments.
II
Subject Matter Jurisdiction
NexPoint's claims against Defendants under Section 14(a) of the Exchange Act confer upon
this Court original subject matter jurisdiction. 28 U.S.C. § 1331. The Court will exercise
supplemental jurisdiction over NexPoint's state statutory and common law claims. 28 U.S.C.
§ 1367(a).
Defendants suggest that the Court should decline to hear the case because the complaint is
au fond a collection of claims governed by Maryland corporation statutes and the common law,
dressed up as federal securities claims, presumably to obtain the perceived advantage of litigating
in a federal court. I do not agree. Whatever their underlying merits may prove to be, NexPoint's
Section 14(a) claims are sufficiently plausible to state federal questions under § 1331. It follows that
subject matter jurisdiction in this Court over NexPoint's federal questions is mandatory; and there
is no discernible reason for the Court to decline to exercise supplemental jurisdiction over the state
and common law claims, which arise out of the same nexus of facts.

6

III
NexPoint's Motion for a Preliminary Injunction
A.

Objectives of the Requested Injunction

NexPoint does not seek by its requested preliminary injunction to bar the October 27 special
meeting of TICC stockholders from taking place. On the contrary: counsel for NexPoint declare
with vehemence that their client is anxious, nay insistent, that the meeting take place on that date.
What NexPoint seeks through a preliminary injunction is to alter the manners in which the meeting
will be conducted.
The notice of meeting and proxy statements promulgated by TICC envision what is
fundamentally a two-step meeting agenda. The first step is a vote by the TICC stockholders on
whether to accept or reject the BSP Transaction. The second step is the election of six of the
members of a nine-person TICC board of directors: provided, however, that this election of directors
will take place only if the stockholders have approved the BSP Transaction. In this regard, TICC
notes that the only reason for increasing its board from five to nine directors was to bring the
proposed BSP Transaction into compliance with the Investment Company Act of 1940 (sometimes,
the “ICA”), 15 U.S.C. §§ 80a-1, et seq., and if the stockholders rejected the Transaction, there would
be no occasion to increase the size of the board. TICC explained these circumstances and reasoning
in its proxy statements.
TICC has said repeatedly in its proxy statements that NexPoint's purported nominations of
directors to be elected are invalid under governing law. TICC gives its stockholders the blunt advice
that they should simply throw NexPoint's color-coded proxy cards away. On TICC's view of the
case, the NexPoint slate of nominees should not be included or considered in an election of directors
7

following stockholder approval of the Transaction. If the stockholders reject the Transaction, no
directors will be elected at the special meeting.
NexPoint contends principally that its proposed directors were validly nominated and must
be included in the election of directors; and that an election of directors must take place at the special
meeting, even if the TICC stockholders reject the BSP Transaction.
The parties' dispute on this last point emerged with some force during the hearing. I will
quote parts of the colloquy between the Court, Mr. Portnoy (appearing for NexPoint) and Mr.
DiPrima (appearing for TICC). The references ("Tr.") are to the transcript of the hearing.
THE COURT: So the result of that vote is that the proposed
agreement between the Company and [BSP] is overwhelmingly
rejected . . . . What happens next? Does an election of directors then
take place?
MR. PORTNOY: Absolutely. An election of directors . . . has
been properly noticed. That is the next item of business. . . . To think
that an election of directors won't happen, you have to buy into the
contingent argument that is –
THE COURT: And it 'll be the election to fill vacancies of a board
of nine which had been previously created according to the first proxy
statement. Am I following your reasoning?
MR. PORTNOY: Correct. Correct. They have created these
vacancies. They have to have an election to fill these vacancies. The
board could have appointed – I think we acknowledge that – the
board didn't appoint. The board set an election . . . said we're going
to have an election to fill these vacancies. You must have that
election. That election is not contingent, and there is no disclosure
suggesting it's contingent . . . . They noticed an election. This was
their choice. They noticed an election. That election is going
forward, irrespective of the transaction being voted down.
Tr. 90-92.
Mr. DiPrima expressed a quite different view:
8

MR. DiPRIMA: . . . Mr. Portnoy contends that if the transaction
is voted down, there's still going to be an election, meaning people
who are voted on might be put on this board of directors. And he
says that we're sort of making that all up – making it up that these
seats were contingent. These seats, the vacancies for this board, were
considered created contingently for the sole purpose of complying
with the Investment Company Act.
The only reason you need to comply with the Investment Company
Act is if the transaction is voted up. If it's not voted up, there's no
reason to create these board seats. . . . [I]f the transaction is voted
down, the board won't change. The board that you had before this
transaction will still be your board, subject to your rights as
stockholders to change the board at the next annual meeting. . . .
We've said – and I think it's been clear from the beginning and it's
clear from the context and circumstances of this whole dispute – that
these vacancies were created contingently for the purpose of
complying with a federal statute.
If the reason for doing that falls away, namely if the transaction is
voted down, then the board doesn't change. The vacancies aren't
created. And nobody is going to be elected to the board.
Tr. 107-109.
Counsel for NexPoint have submitted a proposed preliminary injunction which is consistent
with NexPoint's contentions about what should happen and should not happen at the October 27
special meeting. Doc. 33-1.
B.

Standard of Review

The principles governing the issuance or denial of a preliminary injunction under Rule 65(a)
are familiar. The Second Circuit summarized them recently in Fishman v. Paolucci, No. 14-3715
__ F. App'x.__, 2015 WL 5999318 (2d Cir. Oct. 15, 2015) (summary order):
A party seeking a preliminary injunction in this Circuit must show:
(1) irreparable harm in the absence of the injunction and (2) either (a)
a likelihood of success on the merits or (b) sufficiently serious
questions going to the merits to make them a fair ground for litigation
9

and a balance of hardships tipping decidedly in the movant's favor.
A mandatory preliminary injunction that alters the status quo by
commanding some positive act by the state, as is requested here,
should issue only upon a clear showing that the moving party is
entitled to the relief requested, or where extreme or very serious
damage will result from a denial of preliminary relief.
2015 WL 5999318, at *2 (citations and internal quotation marks omitted; emphases in original).
In the case at bar, NexPoint acknowledges that the preliminary injunction it seeks is
mandatory in nature. At the October 16 hearing Mr. Portnoy said: "they [counsel for TICC]
complain we want a mandatory injunction. Absolutely. We want a mandatory injunction. The
mandatory injunction is the only way to correct the wrongdoing, which has been well established in
this case." Tr. 58-59.
IV
Analysis of NexPoint's Motion for a Preliminary Injunction
As the preceding discussion makes clear, NexPoint's motion for a preliminary injunction is
based upon two related but separate areas of alleged wrongdoing on the part of TICC. Those two
areas may for the sake of convenience be referred to as (a) the Election of Directors at the scheduled
October 27 special meeting of the TICC stockholders, and (b) Disclosures in TICC's proxy
statements. NexPoint's complaint devotes the first and second causes of action to Disclosure issues
and the third and fourth causes of action to the Election of Directors. Counsel, in their briefs and
oral submissions, dealt initially with Election of Directors and then with Disclosures. I will follow
that order in this Ruling.
A.

Election of Directors

A striking feature of this interesting and important case is that NexPoint bases its entire

10

position regarding the election of TICC directors at the special meeting upon a single sentence in a
52-page proxy statement dated September 3, 2015. Doc. 1-2. That proxy statement describes the
nature and purpose of the October 27 special meeting. The sentence upon which NexPoint fastens
appears at page 30, under the caption "Proposal II – Election of Directors." The sentence reads:
Pursuant to the Company's by-laws, at meetings of the Board of
Directors held on July 30, 2015 and September 2, 2015, the Board of
Directors increased the size of the Board of Directors to nine
members and recommended for election at the Special Meeting four
new Non-Interested Director nominees and two new Interested
Director nominees.
This is the language upon which NexPoint relies in contending, as Mr. Portnoy did in the
colloquy quoted at pages 8-9 supra, that prior to the special meeting TICC had created board
vacancies by increasing the size of the board. "They have created these vacancies," Mr. Portnoy
argued, and "[t]hey have to have an election to fill these vacancies," an election that "is going
forward, irrespective of the transaction being voted down," and in which NexPoint's slate of
nominated directors must be allowed to participate.3 Tr. 91-92. NexPoint contends that TICC’s
corporate bylaws confer upon it the right to propose a slate of nominees to fill these vacancies.4

3

Counsel argued this point with a vehemence which bordered on the poetic and recalled
these familiar lines: "The Moving Finger writes; and, having writ, / Moves on: nor all your Piety nor
Wit / Shall lure it back to cancel half a Line, / Nor all your Tears wash out a Word of it." The
Rubaiyat of Omar Khayyam, st. 71.
4

NexPoint points to Article II, Section 11(b) of TICC’s Second Amended and Restated
Bylaws, which provides that stockholders may nominate Board candidates at a special meeting
"provided that the Board of Directors has determined that directors shall be elected at such special
meeting." TICC responds that it has not determined that such an election will take place, and,
moreover, that Section 3-804(c) of the Maryland General Corporations Law provides that
"[n]otwithstanding any provision in the charter or by laws," board vacancies "may be filled only by
the majority of the affirmative vote of the remaining directors in office." For reasons to be made
clear, the Court need not resolve these contentions of Maryland law.
11

As noted, TICC's position is that its board was increased in size for the sole purpose of
complying with the Investment Company Act, a statute that would be implicated only if the
stockholders approve the BSP Transaction as a first item of business at the special meeting. Those
circumstances result in the practical conclusion that if the stockholders reject the BSP Transaction,
the Investment Company Act is no longer a factor or source of concern, life goes on as before at
TICC with its existing board of five directors, and there would be no general and open election of
directors of the sort that NexPoint envisions and demands in this action.
Both parties cannot be right on this issue. As the moving party, NexPoint bears the burden
of persuasion. After careful consideration, I conclude that NexPoint has not made a clear showing
of entitlement to the relief it requests in this motion for a mandatory preliminary injunction on the
Election of Directors dispute.
TICC's September 3 proxy statement, from which NexPoint extracts the quoted sentence on
page 30, is replete with declarations that either explicitly or by necessary implication recite that
election of TICC directors would take place only if the stockholders approve the BSP Transaction.
For example, that is the necessary implication of the sentence on the same page and following shortly
after the sentence NexPoint relies upon:
As a result of the Transaction, as discussed in more detail below, at
least 75% of the Company's Board must be comprised of Noninterested Directors. Accordingly, the Company's Board of Directors
determined to nominate four new directors that would be considered
Non-interested Directors in order to satisfy the 75% Non-interested
Director Requirement.
Doc. 1-2, at 30.5
5

The 75% board requirement to which this passage refers is found in the Investment
Company Act, 15 U.S.C. § 80a-15(f)(1)(A).
12

The proposition is stated explicitly in the proxy statement's printed answer to one of a series
of printed questions designed to further inform stockholders. The question was put:
What will happen if only Proposal 1 or Proposal 2 is approved but
not both proposals or if neither of these proposals is approved?
To which the proxy statement makes this answer:
If only Proposal 1 or Proposal 2 is approved by the Company's
stockholders but not both proposals, or if neither of these proposals
is approved by the Company's stockholders, then the Transaction will
not close and the Company will continue to operate pursuant to the
Existing Advisory Agreement under the supervision of the existing
Board of Directors and management team.
Id., at 9-10 (question emphasized in original). This prose may not be a model of clarity, but surely
it is clear enough to advise the reader that if the stockholders vote down the BSP Transaction
("Proposal 1"), the existing board of five directors will soldier on and there will be no election of
replacement or new directors.6
On this motion, NexPoint asks the Court to give controlling effect to the sentence its counsel
quote from page 30 of the September 3 proxy statement: that is to say, I am asked to read the
sentence to mean that there must be an election of directors at the October 27 special meeting, even
if the stockholders, as a first order of business at the meeting, had just rejected the BSP Transaction.
Were I to do that, the interpretation of that single sentence would render null, void and meaningless
6

TICC also points out that if the stockholders approve the BSP Transaction, and the election
goes forward, the Investment Company Act ("ICA") prohibits NexPoint from offering candidates
in that election. Specifically, TICC points to Section 16(b) of the ICA, which provides that Board
vacancies created solely to comply with the ICA’s provision regarding interested directors "shall be
filled only by a person (1) who has been selected and proposed for election by a majority of the
directors of such company who are not such interested persons . . ." It is in this way that the two
proposals are truly contingent on each other. Section 16(b) of the ICA is implicated in this case since
it is undisputed that TICC was invoking section 15(f) as the statutory vehicle for the BSP
Transaction.
13

a number of declarations in the notice of meeting and proxy statement that if the Transaction is voted
down, no directors will be elected. The law does not favor such an interpretation. In Perreca v.
Gluck, 295 F.3d 215 (2d Cir. 2002), Judge Cabranes reminded us that it is "a cardinal principle of
contract construction that a document should be read to give effect to all its provisions and to render
them consistent with each other." 295 F.3d at 224 (citations, alterations, and internal quotation
marks omitted). Judge Cabranes noted "the well-established principle of contract construction that
all provisions of a contract be read together as a harmonious whole, if possible," and observed that
"when one reads the Plan as a whole," doubt may be cast "on the asserted plain meaning" of a
particular provision. Id. (citations omitted).
While Perreca arose in the different context of an ERISA benefits plan, the wisdom of Judge
Cabranes's observations resonates in the case at bar. The September 3 proxy statement contained
a number of references to the election of TICC directors at the October 27 special meeting. The
parties dispute their overall meaning. In resolving that dispute, I must read the proxy statement as
"a harmonious whole, if possible" and "give effect to all its provisions." It is entirely possible to do
that. The declaration on page 30 that at prior meetings "the Board of Directors increased the size of
the Board of Directors to nine members" can be read, in the overall context of undisputed facts, to
mean that the size of the board was increased in anticipation of the stockholders approving the BSP
Transaction. There is nothing inherently suspect about that interpretation: the first board meeting
at which action increasing the board's size was taken or considered is said to have occurred on July
30, 2015, before the Transaction had been publicly announced and NexPoint had appeared on the
scene.
I conclude that NexPoint is not entitled to a preliminary injunction in respect of the election
14

of directors issues in the case. Assuming without deciding that NexPoint will suffer irreparable
injury if the October 27 special meeting is conducted in a manner of which NexPoint disapproves,
NexPoint does not make the requisite clear showing that it is entitled to the relief it requests in a
mandatory preliminary injunction. In that circumstance, the question of "a balance of hardships
tipping decidedly in the movant's favor" does not arise. But if it did, the corporate dislocation and
instability that would afflict TICC if a boarding party of hostile director nominees had to be repelled
would equal if not exceed hardships suffered by NexPoint if preliminary relief is denied. If
NexPoint, in the role of a crusading stockholder (as well as an investment advisor competitor),
wishes to press its cause against the established TICC hierarchy, it can contest elections to the
company's board of directors at the next annual meeting.
For the foregoing reasons, NexPoint's motion for a preliminary injunction will be denied, to
the extent that the injunction is intended to reach and affect the election of TICC directors at the
October 27 special meeting.
It remains to consider NexPoint's motion for a preliminary injunction to the extent that it
complains of disclosures made in TICC's pre-meeting proxy statements.
B.

Exchange Act Claims

Plaintiff asserts two causes of action under the Exchange Act, specifically 15 U.S.C. § 78n,
which governs the solicitation of proxies. Section 78n(a)(1) provides:
It shall be unlawful for any person, . . . in contravention of such rules
and regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of investors, to
solicit or to permit the use of his name to solicit any proxy or consent
or authorization in respect of any security (other than an exempted
security) registered pursuant to section 78l of this title.

15

Plaintiff then points to 17 C.F.R. § 240.14a-9(a), a regulation passed pursuant to the above statutory
provision, which regulates false or misleading statements in proxy materials. Specifically, that
regulation provides:
No solicitation subject to this regulation shall be made by means of
any proxy statement, form of proxy, notice of meeting or other
communication, written or oral, containing any statement which, at
the time and in the light of the circumstances under which it is made,
is false or misleading with respect to any material fact, or which
omits to state any material fact necessary in order to make the
statements therein not false or misleading or necessary to correct any
statement in any earlier communication with respect to the
solicitation of a proxy for the same meeting or subject matter which
has become false or misleading.
NexPoint argues that certain of TICC's disclosures in its proxy statements with respect to the
October 27 shareholder meeting were false or misleading, in violation of 17 C.F.R. § 240.14a-9(a).
It brings two Exchange Act claims in relation to the following sets of disclosures: (1) as to the BSP
Transaction (first cause of action), and (2) as to the Election of Directors (second cause of action).
The Court addresses these in turn.
1.

Disclosures as to the BSP Transaction (First Cause of Action)

NexPoint vehemently believes that TICC's shareholders would be better situated were the
company to approve its proposed advisory agreement over that of BSP. Although even if this Court
were to grant NexPoint all the relief it seeks it would be unable to reach its ultimate goal — securing
the TICC advisory contract — at the October 27 meeting,7 NexPoint understands that a rejection of
7

NexPoint does not seek to have its proposed offer presented to shareholders for a vote
at the October 27 shareholder meeting. Rather, it only seeks a correction of TICC's disclosures in
hopes that the shareholders will vote down the BSP deal. This is sensible, given that Board approval
would be required for TICC to select the NexPoint deal and that it seems unlikely that the Board, as
currently situated, would approve NexPoint's deal. This makes it quite clear why, along with its
hopes of having the shareholders vote down the BSP deal, NexPoint so adamantly seeks to have its
16

the BSP deal is a necessary first step. Moreover, at the core of its Exchange Act claims, NexPoint
seems to believe that the shareholders will quickly arrive at the conclusion that they should reject
the BSP deal, if only TICC were to present them with an accurate portrayal of NexPoint's proposal
and the Board's flawed process in evaluating said proposal.
NexPoint identifies four allegedly misleading components of TICC's disclosures with respect
to the Transaction: (1) the benefits to be received be Cohen, Royce, and Rosenthal were the BSP
deal to be approved; (2) details as to NexPoint as an entity; (3) the process of evaluating NexPoint's
offer; and (4) TICC's representations as to who advised it in reviewing the NexPoint proposal. The
Court addresses these in turn.
A.

Benefits to be Received by Cohen, Royce, and Rosenthal

It is undisputed that, in light of their ownership interests in TICC Management, Defendants
Cohen and Royce—members of TICC’s

board—and

Defendant

Rosenthal—TICC’s

president—stand to gain a significant financial benefit if the BSP Transaction is approved.8 It is also
undisputed that, as discussed, the complex arrangement that the Board seeks to put before the
shareholders, and that has directly led to the quasi-takeover attempt by NexPoint, is a result only of
TICC's efforts to comply with a statute permitting those in Cohen, Royce, and Rosenthal's position
to obtain a financial windfall, Section 15(f)(1) of the ICA. Nor is it disputed that TICC disclosed
to shareholders the fact that Cohen, Royce, and Rosenthal stood to gain significantly if the deal were
approved. The current dispute centers only on the scope of that disclosure, i.e., did TICC disclose

Board members on the ballot.
8

NexPoint's Deputy General Counsel, Thomas Surgent, posits by sworn declaration that
at least one industry analyst puts the benefit to be received by the interested directors at $60 million,
but that NexPoint estimates it could be as high as $132 million. Doc. 1-4, ¶5.
17

enough?
At first glance, it appears that TICC was relatively candid as to the scope of Cohen, Royce,
and Rosenthal's interests. TICC's September 3 proxy materials included a bolded section entitled
"Significant Conflicts of Interest of Our Directors and Officers in the Transaction," under
which it stated:
When you consider the recommendation of the Board of Directors
that you vote to approve the New Advisory Agreement, you should be
aware that certain of our executive officers and members of our
Board of Directors have significant conflicts of interests in the
Transaction. . . . Messrs. Cohen, Rosenthal and Royce own or control
all of the issued and outstanding limited liability company
membership interests of the Adviser[.] . . . As a result, if the New
Advisory Agreement is approved by our stockholders, Messrs. Cohen,
Rosenthal and Royce will receive substantial payments in exchange
for their interests in the Adviser in connection with the sale of the
Adviser to BSP.
Doc. 1-2, at 28-29 (emphases added).9 Defendants argue that these disclosures were "more than
sufficient to put TICC's stockholders on notice of the interested directors' personal interest." Opp.
[Doc. 24], at 19. Mr. DiPrima expounded this view at oral argument:
MR. DIPRIMA: So I mean, ultimately, in analyzing a claim that
we've omitted something from the proxy, the question for the court is
. . . is what we said misleading? [Y]ou can always make an argument
that the drafters of a stockholders' disclosure statement could have or
should have included this information or that information. The
question ultimately is, is what we said leading the shareholders
astray? We told them that there was a conflict. And we told them
that these people were getting substantial benefits. And they want to
put the number in, but it doesn't change the ultimate – the substance
of what's been disclosed: there's a conflict; there's a substantial
9

That same document contains a nearly identical disclosure on page six, underneath the
bold-faced question "Do any of the Company's directors or officers have an interest in the
approval of the New Advisory Agreement that is different from that of the Company's
stockholders generally?".
18

payment. And that, I would submit, Your Honor, is all that was
required to be disclosed.
Tr. 77-78.
Mr. DiPrima thereby framed the dispute appropriately: must TICC "put the number in," i.e.,
must it disclose the monetary value to be received by Cohen, Royce, and Rosenthal?
NexPoint answers this question with an unequivocal "yes." Mr. Portnoy asked rhetorically:
"How do you possibly ask shareholders to approve a transaction, without telling those shareholders,
by the way, the guys who negotiated this transaction and are recommending it to you stand to gain
sixty million dollars? Any reasonable shareholder would want to know that. That is required
disclosure." Tr. 52.
However, more persuasive than counsel's adversarial positions on this subject—well
presented as they were—are the viewpoints, nay directives, of the Securities and Exchange
Commission. At oral argument, counsel for NexPoint took the opportunity to refer the Court to 17
C.F.R. § 240.14a-101 Schedule 14A, relevantly titled "Information required in proxy statement."10
The Court has reviewed this regulation, Item 22 of which states in pertinent part:
Item 22. Information required in investment company proxy
statement . . .
(c) Approval of investment advisory contract. If action is to be taken
with respect to an investment advisory contract, include the following
information in the proxy statement . . .
(6) Describe briefly and state the approximate amount of, where
practicable, any material interest, direct or indirect, of any
10

Counsel intimated at oral argument that its failure to proffer this authority to the Court
in its papers was an inadvertent result of "the rush to prepare our TRO papers." Tr. 52. While this
fails to explains why counsel also failed to cite this authority in its reply brief in support of its
preliminary injunction, counsel cited the regulation at the hearing and I am bound to consider it.
19

director of the Fund11 in any material transaction since the
beginning of the most recently completed fiscal year, or in any
material proposed transactions, to which the investment adviser of
the Fund, any Parent or Subsidiary of the investment adviser (other
than another Fund), or any Subsidiary of the Parent of such entities
was or is to be a party.
(bolded and underlined emphases added).
The Court is persuaded that because the SEC requires disclosure of the approximate
monetary benefit to be received by an interested director in a proxy statement advocating for the
approval of an investment advisory contract, the omission of those amounts by TICC is materially
false or misleading and is thereby in violation of 15 U.S.C. § 78n(a)(1). In fact, support for this
position comes from the lone citation provided by Defendants as to this point, where they argue that
"'Disclosure of an item of information is not required . . . simply because it may be relevant or of
interest to a reasonable investor. For an omission to be actionable, the securities laws must impose
a duty to disclose the omitted information.'" Opp. [Doc. 24], at 20 (quoting Resnik v. Swartz, 303
F.3d 147, 151 (2d Cir. 2002) (emphasis added). NexPoint has identified such a duty, and therefore
the omission of the amount to be received by the interested directors (Cohen and Royce) is almost
certain to be actionable.
Further, the omission of the specific interest to be received by each of Cohen, Royce, and
Rosenthal is likely material even without reference to Item 22. Defendants imply that they did not
"lead[] the shareholders astray" by providing the fact that there was a substantial conflict without
approximating the monetary scope of that conflict. Tr. 78. This is specious. Clearly, TICC felt
11

"Fund" is defined as "Registrant," which is defined as "an investment company
registered under the Investment Company Act of 1940 (15 U.S.C. 80a) or a business development
company as defined by section 2(a)(48) of the Investment Company Act of 1940 (15 U.S.C. 80a2(a)(48))." Item 22(a)(1)(v), (x).
20

obliged to disclose something to the shareholders regarding the interested parties' conflict. In
deciding what to disclose, it elected to omit an estimate as to the monetary value of that conflict,
information that was readily available.12 Under the securities laws, the question then becomes
whether that omission was "misleading with respect to any material fact."
TICC's counsel argued that it was not a material fact because "put[ting] the number in . . .
doesn't change the . . . . substance of what's been disclosed." Tr. 78. However, if that be the case,
TICC would have faced no harm from disclosing it, and thereby TICC cannot explain why, once it
decided to disclose the conflict, it stopped short of disclosing the monetary value of the conflict. The
likely reason it chose to omit the figures seems rather apparent. It can fairly be inferred that TICC
envisioned that its interested directors' and officers' disclosed conflicts would be viewed
categorically different by the shareholders if it were forced to quantify, with some precision, the
magnitude of that conflict. This eminently aligns with common sense. Vague descriptors such as
a "significant conflict" and "substantial payments" do not present the true nature of Cohen, Royce,
and Rosenthal’s multi-million dollar interests in the approval of a deal being presented to
shareholders as in their best interest. As counsel for NexPoint argued, "Any reasonable shareholder
would want to know that." Tr. 52. The Court agrees.
NexPoint has shown a likelihood of success on the merits as to its claim that TICC omitted
a material fact by failing to identify with any specificity the approximate amount of interest that
Cohen, Royce, and Rosenthal are to receive if the Transaction is approved.

12

See supra n.8.
21

B.

Disclosures Regarding NexPoint

NexPoint claims that it was a material omission to exclude in TICC's proxy materials "any
description of NexPoint's strategy, reputation, institutional relationships, track record, investment
skills, and the quality of its management teams." Doc. 1, ¶84 (internal quotation omitted). It argues
this to be a misrepresentation in large part because TICC included such information about BSP. Id.
NexPoint cites to no authority requiring a company issuing a proxy statement advocating for
a deal's approval to publish a detailed description of a third-party whose deal it considered and
rejected.13 Such a requirement would make little sense, especially where, as here, that company has
disclosed the key terms of the deal offered by that third-party. See Doc. 1-2, at 24. The description
of NexPoint, unlike the terms of its proposed deal, is information that an interested shareholder can
quite easily ascertain on its own. The federal securities laws simply do not require its disclosure by
TICC. NexPoint has failed to demonstrate a likelihood of success on the merits as to this category
of disclosures.
C.

Disclosures Regarding Engagement with NexPoint

NexPoint argues that TICC has misled its shareholders through its proxy materials'
misleading description of the Board's evaluation of NexPoint's bid for the advisory contract. See
Doc. 1, ¶85. Specifically, NexPoint takes issue that the proxy statement "failed to disclose that the
Special Committee refused to negotiate with NexPoint despite NexPoint's repeated offers to
negotiate." Br. [Doc. 2-1], at 21. In response, TICC argues that it "truthfully disclosed the extent
13

As Defendants argue, the "'securities laws do not effectively require [an issuer] to
accuse [it]sel[f] of breach of fiduciary duty.'" Opp. [Doc. 24], at 22 (quoting Koppel v. 4987 Corp.,
167 F.3d 125, 134 (2d. Cir. 1999)) (alternations in original). Or, as stated somewhat more colorfully
in a distinct but related context at oral argument, Defendants are under no obligation to "flagellate
[them]selves." Tr. 81.
22

of its interactions with NexPoint following the submission of its offer.” Opp. [Doc. 24], at 22.
TICC made numerous statements in its proxy materials regarding its interaction with
NexPoint. At the outset, without identifying NexPoint by name, it disclosed the following in its
initial September 3 proxy materials:
Subsequent to publicly disclosing the terms of the New Advisory
Agreement, the Board of Directors formed a special committee
consisting solely of the Company's three Non-interested Directors
(the "Special Committee") to evaluate an unsolicited, written proposal
from a third party . . . The Special Committee extensively evaluated
the unsolicited proposal, including the totality of its quantitative and
qualitative aspects, as compared to the quantitative and qualitative
aspects of the New Advisory Agreement, and discussed it internally
as well as with independent legal counsel. After these extensive
deliberations . . . the Special Committee continued to support the
Transaction and the New Advisory Agreement.
Doc. 1-2, at 24. Thereafter, in its September 29 proxy materials, TICC disclosed that "Contrary to
NexPoint's assertions, the TICC Special Committee of the Board did carefully evaluate the NexPoint
proposal," that "[t]heir sole focus was on independently evaluating" the proposal, which they
"carefully reviewed." Doc. 1-16, at 6-7. On October 2, TICC again stated that its Board "carefully
evaluated" the NexPoint proposal, rejected as "FALSE" the statement that "TICC didn't engage with
. . . NexPoint," stated that the "Special Committee . . . reviewed NexPoint's proposal in detail and
rejected it," and determined "[t]he bottom line: TICC's Independent Special Committee reviewed
NexPoint's proposal and decided it was NOT as good as the BSP agreement." Doc. 1-17, at 4, 6
(emphases in original). Finally, in an October 5 presentation to shareholders, filed with the SEC,
under the heading "The Review Undertaken to Protect Your Interests," TICC disclosed the
following:
•

The Special Committee thoroughly considered the NexPoint and TPG BDC
23

proposals, engaging with both entities and soliciting more information and is assisted
by independent legal counsel at Wachtell, Lipton, Rosen & Katz and financial
advisors at Morgan Stanley & Co. LLC.
•

After thoroughly considering the NexPoint and TPG BDC proposals, the Special
Committee unanimously concluded that the BSP investment advisory agreement
is in the best interests of all stockholders.

Doc. 1-18, at 18 (bold in original).
NexPoint argues that certain of the above disclosures paint a misleading picture as to the
TICC Board's evaluation of its proposal.14 Its counsel succinctly stated the relief it seeks at oral
argument: "The proxy statement has to be corrected to describe accurately what happened in
connection with the negotiation of the transaction, including the directors' refusal to negotiate with
NexPoint." Tr. 53.
At the preliminary injunction hearing, the Court questioned defense counsel specifically as
to TICC's statements that it "engaged with" NexPoint during its evaluation of NexPoint's proposal.
When asked if TICC's process for evaluating that proposal could truly be characterized as such "in
the sense of that verb that the reader of English would understand," Mr. DiPrima responded, at pages
80-81 of the transcript, as follows:
MR. DIPRIMA: I think so, Your Honor. And what it is meant to say
and it does say is that there was a back-and-forth between TICC and
NexPoint in which we sought additional information from them . . .
and they provided it. And we went back to them for more
information and they provided it. That's engagement under any . . .
meaning of the word.
The Court is unpersuaded that TICC's usage of the term "engage with" in its proxy materials

14

NexPoint does not argue against disclosures as to TICC’s internal review of
NexPoint's proposal (i.e., that TICC "carefully evaluated" it), but rather argues against TICC's
statements and omissions with respect to its interactions and negotiations with NexPoint.
24

aligns with the formulation elucidated by Mr. DiPrima at the hearing. The best rebuttal is the
language of the proxy material itself, in which TICC posits that its process involved "engaging with
both entities and soliciting more information" from them. Doc. 1-18, at 18 (emphasis added). The
Court emphasizes the conjunction "and," because it implies that "engaging with" NexPoint involved
something above and beyond "soliciting more information" from it. Moreover, the Merriam-Webster
dictionary defines "engage" in relevant part as "to interlock with," which implies a conjoining or
coming together. Such a definition aligns with a common sense use of the term "engage with" in the
context of business negotiations. While Mr. DiPrima posited that TICC's interaction with NexPoint
constituted "engagement," the preposition "with" carries significance here, as to "engage with" an
entity necessarily envisions at least some substantive collaboration that simple "engagement" may
not. At the least, therefore, usage of the term "engage with" would leave the reasonable shareholder
with the impression that TICC engaged in some semblance of a negotiation with NexPoint.
However, TICC freely admits that it did not negotiate with NexPoint. Rather, it defends
itself on this disclosure charge by claiming that "we never said we did negotiate," and "we didn't tell
anybody whether . . . there was a back-and-forth on terms."15 Tr. 81. As discussed just above,
however, TICC essentially told investors just that when it stated that it "engaged with" NexPoint.
Nor can TICC seriously dispute the materiality of this misrepresentation. Any
materiality argument proffered by TICC would be undermined by the fact that it felt compelled to
make the representation to shareholders at all. In fact, as TICC disclosed in the same proxy
materials, it proffered this elective disclosure precisely "to provide the Company's large retail

15

Moreover, irrespective of Mr. DiPrima's acknowledgment, the record makes clear that
TICC engaged in no negotiations—substantive or otherwise—with NexPoint.
25

investor base with the information needed to help them understand the benefits of the [BSP]
investment advisory agreement, the process undertaken by TICC to protect the interests of all
shareholders, and the deficiencies of the alternative proposals." Doc. 1-18, at 11 (emphasis added).
Moreover, it is apparent that a reasonable shareholder would place importance on the level of
interaction the Board had with a third-party competing against a proposal being presented to them,
specifically where the proposal favored by the Board is one that would provide tens of millions of
dollars to certain of that board's members.
Therefore, by overstating its engagement with NexPoint, TICC likely misrepresented a
material fact in violation of the securities laws. NexPoint has thereby shown a likelihood of success
on the merits as to TICC's disclosures regarding its engagement with NexPoint.
D.

Disclosure Regarding Wachtell and Morgan Stanley

As discussed above, TICC made the following disclosure on October 5, 2015:
The Special Committee thoroughly considered the NexPoint and TPG
BDC proposals, engaging with both entities and soliciting more
information and is assisted by independent legal counsel at Wachtell,
Lipton, Rosen & Katz and financial advisors at Morgan Stanley &
Co. LLC.
Doc. 1-18, at 18. Apart from the "engaging with" language, NexPoint also argues that this disclosure
creates the materially false impression that when the Board was evaluating the NexPoint deal it was
assisted by prestigious counsel Wachtell, Lipton, Rosen & Katz ("Wachtell") and as-prestigious
financial advisor Morgan Stanley & Co. LLC ("Morgan Stanley"). In fact, as TICC acknowledges,
TICC did not seek the advice of those venerable institutions until after it had considered—and
rejected—the NexPoint deal.
TICC's response is simple: "Th[e] statement is entirely accurate." Opp. [Doc. 24], at 21. It
26

argues that the "statement, on its face, is a present tense assertion that those firms were representing
the special committee as of the date of the disclosure," which was October 5, 2015. Id. In essence,
TICC argues that because it used the word "is," rather than "was," its statement is an accurate
representation that thereby is not violative of the securities laws.
TICC is correct that, as a matter of linguistics, its statement is accurate. However, it is
mistaken in believing its mere accuracy is a complete shield to the securities laws, which are
concerned not just with inaccurate disclosures, but also misleading ones. See Wilson v. Merrill
Lynch & Co., Inc., 671 F.3d 120, 130 (2d Cir. 2011) (quoting SEC v. Gabelli, 653 F.3d 49, 57 (2d
Cir. 2011) ("'The law is well settled . . . that so-called 'half-truths' — literally true statements that
create a materially misleading impressions — will support claims for securities fraud.'").
There can be no serious question that Mr. Portnoy was correct when he stated to the Court
that TICC has "written this in a way to be affirmatively misleading to suggest to the shareholders that
they have these well-known firms, well known in the M&A space, advising them[when i]n fact, at
the crucial time here, those firms were not on the scene." Tr. 54. On that particular point, the quoted
statement can reasonably be regarded as an effort to mislead stockholders. There would be no other
reason to identify TICC's advisers, as of October 5, 2015, in a slide presentation discussing TICC's
already completed "review undertaken to protect [shareholder] interests," and in the same sentence
that describes that the Board "thoroughly considered the NexPoint" proposal. Under these
circumstances, TICC's claims of "literal truth" ring hollow.
Similarly unpersuasive are TICC's arguments as to the materiality of this statement. Mr.
DiPrima, a Wachtell attorney, argued that "we should be sort of flattered" by NexPoint's argument
that the misrepresentation that TICC was represented by Wachtell, rather than unnamed independent
27

counsel, constitutes a material misrepresentation actionable under the securities laws. Tr. 78. Mr.
DiPrima's humility aside, one cannot deny that Wachtell and Morgan Stanley are prominent
institutions that carry a significant weight and provide a legitimacy that a reasonable investor might
rely on as support for the Board's decision-making. Moreover, as discussed, supra, TICC's
materiality argument is undermined again by the fact that it felt compelled to make the representation
to shareholders at all. See Doc. 1-18, at 11 (disclosing that the purpose of the elective disclosure is
to provide shareholders "with the information needed to help [the shareholders] understand . . . the
process undertaken by TICC to protect the interests of all shareholders"). NexPoint has met its
burden of showing that this statement was likely a material misrepresentation.
2.

Disclosures as to the Election of Directors (Second Cause of Action)

NexPoint argues that two of TICC's disclosures as to the election of directors were material
misrepresentations in violation of the securities laws. First, it argues that TICC's failure to list
NexPoint's proposed Board members in the proxy materials was a materially misleading omission.
However, as discussed, supra, it would have been futile to include NexPoint's proposed board
members in the proxy materials because there will be no election at which those proposed board
members can be put up for a vote. Second, NexPoint argues that TICC made material false
disclosures by describing the two proposals to be voted on at the shareholder meeting as
"contingent," and that, in such contingent arrangements, Maryland law precludes shareholder board
nominations. The discussion, supra, likewise forecloses this argument as the Court has already
determined that the effect of section 16(b) of the ICA is to make the two proposals "contingent" on

28

each other.16
NexPoint has failed to show a likelihood of success on the merits as to Count II.
V
Conclusion
The Court makes the following Order pursuant to Rule 65(d) of the Federal Rules of Civil
Procedure:
1. For the foregoing reasons, Plaintiff's Motion for a Preliminary Injunction [Doc. 2] is
GRANTED IN PART and DENIED IN PART.
2. The motion is GRANTED IN PART and DENIED IN PART with respect to the claims
alleged in the First Cause of Action of the Complaint.
3. The motion is DENIED with respect to the claims alleged in the Second, Third, and
Fourth Causes of Action of the Complaint.
4. Defendant TICC Capital Corp., its officers, agents, servants, employees, and attorneys,
and other persons in active concert or participation with any or all of them, are ENJOINED from
holding the special meeting of stockholders on the previously noticed date of October 27, 2015.
They are FURTHER ENJOINED to file with the Securities Exchange Commission, on or before a
date to be fixed by the Court in a subsequent Order, a corrective disclosure in the form of a proxy
statement, addressed to all stockholders of record of said corporation.
5. The corrective proxy statement referred to in Paragraph 4 of this Order must recite that
16

Given this holding, it is unnecessary for this Court to address the state law question of
whether Maryland in fact precludes stockholder board nominations upon contingent votes. Given
that, as discussed, supra, TICC did not, in fact, put up NexPoint's proposed Board members for a
vote, any misrepresentation as to whether Maryland law prohibits NexPoint's candidates would be
immaterial.
29

it is being issued pursuant to an order of this Court, following a hearing in this action.
6. The contents of the corrective proxy statement referred to in Paragraph 4 of this Order
must conform to and remedy the deficiencies identified in this Ruling. Without limiting the
generality of that instruction, the corrective disclosures must at a minimum (a) approximate with as
much precision as possible the estimated monetary benefit to be received by Defendants Cohen,
Royce, and Rosenthal on the closing of the Transaction; (b) accurately describe TICC's interaction
with NexPoint with respect to the Board's evaluation of NexPoint's proposal, specifically reciting
that it did not "engage with" or negotiate with NexPoint, and referring stockholders to any previous
such statements which it is being ordered to correct; and (c) accurately describe the entities involved
in advising the Board in its evaluation of the NexPoint proposal, specifically reciting that it was not
advised by Wachtell or Morgan Stanley during that evaluation process, and referring stockholders
to any previous such statements which it is being ordered to correct. As to each correction, the
corrective disclosure must identify the disclosure Defendants are being ordered to correct, and briefly
advise stockholders of the reason Defendants are being ordered to correct it.
7. Defendants are directed to file a proposed corrective proxy statement with the Court, and
serve a copy upon counsel for Plaintiff, on or before November 6, 2015.
8. On or before November 13, 2015, Plaintiff is directed to file and serve a statement
expressing agreement with the proposed proxy statement referred to in Paragraph 7 of this Order,
or in the alternative, stating specific objections and submitting a revised text of the proxy statement.
9. The Court will resolve any disputes that may emerge from these submissions, and enter
a further Order which will specify (a) the date on which Defendant TICC Capital Corp. must file the
finalized corrective proxy statement with the Securities and Exchange Commission and mail it to
30

stockholders; and (b) the earliest date by which it will be permissible for Defendant to convene a
special meeting of stockholders to consider the proposals which are the subject matter of this action.
All the foregoing is SO ORDERED.
Dated:

New Haven, Connecticut
October 23, 2015
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

31