ROOFER'S PENSION FUND, v. PAPA et al
OPINION. Signed by Judge Madeline Cox Arleo on 4/27/2017. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROOFERS’ PENSION FUND, on behalf of
itself and all others similarly situated,
Civil Action No. 16-2805
JOSEPH C. PAPA and PERRIGO CO. PLC,
THIS MATTER comes before the Court by way of Movant Dan Kleinerman’s objection
to the Opinion and Order of the Hon. Leda D. Wettre, U.S.M.J., dated February 10, 2017, which
appointed the Perrigo Institutional Investor Group (the “Perrigo Group”) as lead plaintiff and
approved their selection of lead counsel. Dkt. No. 69. In her Opinion, Judge Wettre found that
the Perrigo Group was the presumptively adequate lead plaintiff and that Kleinerman failed to
show that the Perrigo Group will be subject to unique defenses. Kleinerman claims that Judge
Wettre applied the wrong legal standard and incorrectly applied that standard to the evidence in
support of the defenses. Because the Court agrees with Judge Wettre’s decision, it is ADOPTED
In this putative class action, Plaintiff Roofers’ Pension Fund alleges that Defendants
Perrigo Company PLC (“Perrigo”), a pharmaceutical manufacturer, and Joseph Papa, Perrigo’s
former board chairman and CEO, violated sections 10(b), 14(e), and 20(a) of the Securities
Exchange Act of 1934 (the “Exchange Act”). 15 U.S.C. §§ 78j(b), 78n(e), 78t(a).
The complaint alleges that, in April 2015, Perrigo and Papa sought to defeat a tender offer
by nonparty Mylan N.V. (“Mylan”) by representing to shareholders that the Mylan offer
undervalued Perrigo, that Perrigo would achieve organic revenue growth of 5 to 10 percent on its
own, and that Perrigo’s recent acquisition of another company would produce additional beneficial
financial results. In November 2015, a majority of Perrigo’s shareholders rejected Mylan’s offer.
In early 2016, however, Perrigo issued two quarterly reports with negative results. The reports
lowered projected earnings, indicated a need to restructure the recently-acquired business and take
substantial impairment charges, and announced a quarterly net loss. During that time, Papa left
Perrigo to become CEO of one of its competitors. The complaint claims that Perrigo and Papa
were aware that their reasons for rejecting Mylan’s offer were false and misleading, and presents
a putative class of purchasers and investors of Perrigo common stock between April 2015 and May
2016 (the “Class Period”).
In July 2016, four class members filed competing motions for appointment as lead plaintiff
and to select class counsel: the Perrigo Group, Dan Kleinerman, Michael Wilson, and Harel
Insurance Company Ltd. Dkt. Nos. 5, 6, 7, 9. The Perrigo Group is comprised of several
institutional investors: Meitav DS Provident Funds and Pension Ltd (“Meitav”), Migdal Insurance
Company Ltd., Migdal Makefet Pension and Provident Fund Ltd. (the Migdal entities are known
collectively as “Migdal”), Clal Insurance Company Ltd., Clal Pension and Provident Ltd., and
Atudot Pension Fund for Employees and Independent Workers Ltd. (Atudot and the Clal entities
are known collectively as “Canaf-Clal”). Perrigo Group Br. at 1, Dkt. No. 6-1. In February 2017,
Judge Wettre issued an Oral Opinion and Order appointing the Perrigo Group as lead plaintiff.
Oral Opinion (“Op.”), Dkt. No. 65; Order dated Feb. 10, 2017, Dkt. No. 64.
Because this case concerns a putative class action arising under the Exchange Act, the
Private Securities Litigation Reform Act of 1995’s (“PSLRA”) rules governing the appointment
of a lead plaintiff apply. See 15 U.S.C. § 78u-4(a)(1). The PSLRA establishes a two-step process
for appointing a lead plaintiff: The court must first identify the presumptively adequate lead
plaintiff, then give other members of the class a chance to rebut the presumption. See 15 U.S.C.
§ 78u-4(a)(3)(B)(iii)(I) & (II).
Under step one, a class member is the presumptive lead plaintiff if it makes a prima facie
showing that it (1) is the movant or original filer of the complaint, (2) who has the largest financial
interest in the case, and (3) otherwise satisfies Fed. R. Civ. P. 23(a)’s typicality and adequacy
requirements. Id. § 78u-4(a)(3)(B)(iii)(I); see also In re Cendant Corp. Litig., 264 F.3d 201, 26364 (3d Cir. 2001) (citing id. § 78u-4(a)(3)(B)(iii)(I)(cc)). The Perrigo Group had the largest
financial interest of the four movants, Op. 6:16-8:6, and met Rule 23’s requirements, id. 9:4-11:22.
The Perrigo Group accordingly became the presumptively adequate lead plaintiff.
Under step two, other class members can rebut a party’s presumptive lead status by offering
“proof” that, among other things, the lead plaintiff “is subject to unique defenses that render such
plaintiff incapable of fairly representing the class.” Id. § 78u-4(a)(3)(B)(iii)(II)(bb). Kleinerman
argued that the Perrigo Group would be subject to three unique defenses. He contended that the
Perrigo Group members bought their shares in foreign markets, did not have beneficial title to the
Perrigo shares, and did not rely on Papa and Perrigo’s public statements when rejecting the Mylan
tender offer. Op. 16:12-17:11. The first two defenses challenge standing, the third claims nonreliance.
Judge Wettre disagreed. Quoting Beck v. Maximus, she stated, “a rebutting party must
show ‘some degree of likelihood that a unique defense will play a significant role at trial.’” Op.
17:15-20 (quoting 457 F.3d 291, 300 (3d Cir. 2006)). Applying that standard, Judge Wettre
rejected the standing defenses because the Perrigo Group submitted a certification that all shares
were traded on the New York Stock Exchange and were held by group members as beneficial
owners. Id. 17:21-18:2; see also Himmel Decl. Ex. A ¶¶ 8, 12, Dkt. No. 25-2.
Judge Wettre also rejected the non-reliance argument. Kleinerman offered several public
statements as evidence that the Perrigo Group members may have relied on information other than
Defendants’ public representations. This included a news article from September 2015 in which
Moshe Rabinan, a Meitav executive, gave reasons for rejecting the Mylan tender offer that did not
expressly reference Papa or Perrigo’s fraudulent statements; another news article opining that
certain Perrigo Group members entities should reject the Mylan tender offer because the takeover
could cause their portfolios to underperform in relation to a market index 1; statements by a
prominent analyst who works for a nonparty affiliate of Migdal that the Perrigo stock was
overrated and that the Mylan offer would probably fail because a separate transaction which made
the tender offer attractive broke down; and the possibility that Migdal representatives had “unique
knowledge” about the offer because they attended an investor presentation with Mylan’s CFO
during the offer period. See Opp’n Br. at 11-20, Dkt. No. 18. Judge Wettre deemed these
arguments “highly speculative,” and noted alternatively that, “assuming these non-reliance
arguments could be raised at trial, it is not clear that . . . the time needed to address them would be
to the detriment of the other class members.” Op. 18:4, 12-16. Since Kleinerman failed to rebut
the prima facie showing, the Perrigo Group became lead plaintiff. Kleinerman timely objected.
Fed. R. Civ. P. 72(a); L.Civ.R. 72(c)(1)(A).
STANDARD OF REVIEW
Judge Wettre had jurisdiction to hear and determine the motion under 28 U.S.C. § 636.
The article states that Migdal and Clal’s investment portfolios are measured against the
performance of an important Israeli stock market index, the TA-25. The article explains that
Mylan’s takeover of Perrigo would cause the TA-25 index to rise at a higher rate than Migdal and
Clal’s portfolios, making it seem like their portfolios were underperforming the market. Sommers
Decl. Ex. 3, Dkt. No. 18-4.
Section 636(b)(1)(A) grants magistrate judges authority to consider non-dispositive pre-trial
motions. See 28 U.S.C. § 636(b)(1)(A); see also Ross v. Abercrombie & Fitch Co., No. 05-819,
2007 WL 895073, at *3 (S.D. Ohio Mar. 22, 2007) (“[A]ppointment of lead Plaintiff is not a
dispositive matter.”); Bhojwani v. Pistiolis, No. 06-13761, 2007 WL 9228588, at *2 (S.D.N.Y.
July 31, 2007) (considering magistrate judge’s lead plaintiff choice a nondispositive matter); In re
Comverse Tech., Inc. Derivative Litig., No. 06-1849, 2006 WL 3511375, at *3 (E.D.N.Y. Dec. 5,
On non-dispositive motions, a district court judge reviews timely objections and may
modify or set aside any part of the magistrate judge’s determination it finds to be “clearly erroneous
or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). The clearly
erroneous rule applies to the magistrate judge’s findings of facts. Haines v. Liggett Group, Inc.,
975 F.2d 81, 91 (3d Cir.1992). “[T]he phrase ‘contrary to law’ indicates plenary review as to
matters of law.” Haines, 975 F.2d at 91. “A decision is considered contrary to law if the magistrate
judge has ‘misinterpreted or misapplied applicable law.’” Merck Sharp & Dohme Corp. v. Sandoz,
Inc., No. 12-3289, 2014 WL 1494592, at *7 (D.N.J. Apr. 16, 2014) (quoting Doe v. Hartford Life
& Accident Ins. Co., 237 F.R.D. 545, 548 (D.N.J. 2006)).
Kleinerman argues that a different standard of review applies. He maintains that motions
to appoint lead plaintiffs are dispositive, and therefore reviewed de novo. The Court find it
unnecessary to resolve this dispute because, even if it accepts Kleinerman’s proposal and reviews
the record de novo, the Court would nevertheless affirm Judge Wettre’s order to appoint the
The Court now turns to the substance of the objections. Kleinerman objects to Judge
Wettre’s finding that he failed to rebut the Perrigo Group’s presumptive adequacy. He argues that
he did so for two reasons, both of which turn on unique defenses. He claims that Judge Wettre
applied the wrong legal standard for unique defenses, and incorrectly applied that standard to the
evidence he offered to show lack of standing and non-reliance.
A. Legal Standard for “Unique Defenses”
First, he claims that Judge Wettre applied the wrong legal standard for the unique defenses
Judge Wettre stated that the standard for evaluating whether a presumptive lead plaintiff
should be disqualified because of a potential unique defense is whether the rebutting party shows
‘“some degree of likelihood that a unique defense will play a significant role at trial.’” Op. 17:1520 (quoting Beck, 457 F.3d at 300). Kleinerman maintains that the standard is whether “there is
some degree of probability that the defense might ‘become a major focus’ in the case.” Br. at 4
(quoting In re Enzymotec Ltd. Sec. Litig., No. 14-5556, 2015 WL 918535, at *2 (D.N.J. Mar. 3,
2015)). Boiled down, he objects to Judge Wettre’s use of “will” instead of “might” and “at trial”
instead of “in the case.” This is a trivial difference. In Beck, the Third Circuit considered a similar
semantic quibble. The court compared the standard it applied up that point (which Judge Wettre
quoted) to the standard applied by other courts of appeals (which used language similar to
Kleinerman’s that “the defense might become a . . . major focus of the litigation”) and concluded
that, “[d]espite some variation in language, we believe all of these cases set forth standards that
are, in substance, the same.” Beck, 457 F.3d at 300 (internal quotes omitted). Then, to clarify any
ambiguity, it settled on the phrasing, “[a] proposed class representative is neither typical nor
adequate if the representative is subject to a unique defense that is likely to become a major focus
of the litigation.” As such, the wording used by Judge Wettre comports with the standard selected
by the Third Circuit in Beck.
Kleinerman responds that Beck concerned appointment of a lead plaintiff at the class
certification stage, so the Beck standard should not apply. Another triviality. Beck appears to be
the only standard for appointing lead plaintiffs, regardless of whether it is part of class certification
or a standalone motion. In fact, the two cases Kleinerman cites in support of his proposition that
a different test should apply both cite Beck in their standalone motions. See Steamfitters Local
449 Pension Fund v. Cent. European Distribution Corp., No. 11-6247, 2012 WL 3638629, at *9
(D.N.J. Aug. 22, 2012) (quoting Beck); In re Netflix, Inc., Sec. Litig., No. 12-0225, 2012 WL
1496171, at *5 (N.D. Cal. Apr. 27, 2012) (citing Beck); see also Sklar v. Amarin Corp. PLC, No.
13-6663, 2014 WL 3748248, at *5 n.2 (D.N.J. July 29, 2014) (same); Grodko v. Cent. European
Distribution Corp., No. 12-5530, 2012 WL 6595931, at *3 (D.N.J. Dec. 17, 2012) (same).
Kleinerman’s argument is unpersuasive.
In sum, Kleinerman must provide proof that the Perrigo Group “is subject to a unique
defense that is likely to become a major focus of the litigation.” Beck, 457 F.3d at 301. He must
show that the Perrigo Group’s “interests might not be aligned with those of the class, and the
representative might devote time and effort to the defense at the expense of issues that are common
and controlling for the class.” Beck, 457 F.3d at 297. He does not have to prove the defense, but
he must provide enough evidence to show that it is not speculative or meritless. Id. at 300, 301.
Ultimately, the question is whether he can show that the Perrigo Group will not do a “fair and
adequate job” representing the class. Cendant, 264 F.3d at 268. With those principles in mind,
the Court turns to Kleinerman’s asserted unique defenses.
B. Applicability of “Unique Defenses” Argument to the Perrigo Group
Kleinerman claims that Perrigo Group is subject to unique standing and non-reliance
defenses, and that Judge Wettre applied the law to the facts incorrectly. The Court will address
each defense in turn.
Of the several standing arguments raised before Judge Wettre, Kleinerman objects only to
her finding that he failed to demonstrate how the Perrigo Group did not own or have an interest in
the securities at issue.
In order to have Article III standing, a plaintiff must adequately establish, among other
things, “an injury in fact (i.e., a concrete and particularized invasion of a legally protected
interest).” Sprint Comm’s Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 273-74 (2008). In
securities fraud cases, a plaintiff must establish some interest in the securities fraud claim, such as
a direct interest or interest by assignment, in order to bring that claim. See id. at 285; Lowry v.
Baltimore & Ohio R. Co., 707 F.2d 721, 729 (3d Cir. 1983) (“[T]he availability of such Rule 10b5 actions should be limited to those investors who themselves have been defrauded, or who are
express assignees of defrauded parties.”).
Before Judge Wettre, the Perrigo Group submitted a declaration containing a list of its
member’s transactions in Perrigo securities during the Class Period. See, e.g., Lieberman Decl.
Ex B ¶ 5, Dkt. No. 6-4. The list contains various unnamed investment accounts and a description
of each trade, but it did not expressly identify the holders of those accounts. Kleinerman claimed
that the Perrigo Group’s decision not to identify the accountholders raised doubts about its
standing. So the Perrigo Group submitted an additional declaration from executives of Meitav,
Migdal, and Canaf-Clal stating that their companies traded the Perrigo securities through the listed
investment accounts and “are the title holder[s] of the securities set forth in its respective
Certification, and beneficially own[ ] said securities on behalf of their clients and/or customers.”
Reply Decl ¶ 8, Dkt. No. 25-2. Kleinerman did not provide any evidence to contradict the
declaration but said that the Perrigo Group’s evidence was not good enough to dispel standing
concerns. The Court disagrees.
The argument that the Perrigo Group must identify every accountholder and explain their
arrangement on the chance it could show a lack of standing is speculative, as Judge Wettre
correctly found. Despite having the burden of proof in rebutting the Perrigo Group’s adequacy,
Kleinerman has not supported his claim that the Perrigo Group members do not, in fact, have a
right to the shares. Nor does he provide any substantiated allegation or reason to believe that the
Perrigo Group executives’ sworn declaration attesting to their ownership is incorrect or false. He
has therefore not established a probability that the Perrigo Group would focus much, if any, time
during the litigation establishing standing; or that such time would be spent at the expense of issues
that are common and controlling for the rest of the class.
Kleinerman’s lack of evidence distinguishes his argument from Steamfitters, the case on
which he principally relies. 2012 WL 3638629, at *11. There, the court noted the Second Circuit’s
non-binding decision that investment advisors lack standing if they do not own the underlying
securities. Id. at *10 (citing W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549
F.3d 100, 103 (2d Cir. 2008)). The court found that the presumptive lead plaintiff could be subject
to that kind of standing challenge. The court reached that conclusion because the rebutting class
members provided evidence that several members of the presumptive lead plaintiff group did not
own the securities. The evidence consisted of certifications and party admissions attesting to the
fact that that several group members never received assignments of interest in the claim. Id. at
*11 (citing certification, oral argument transcript, and admissions in presumptive lead plaintiff’s
brief). And the remaining group members who did have interests in the claim were susceptible to
unrelated procedural challenges. Id. at *11-12. As such, the standing argument in Steamfitters is
distinguishable because it is grounded in colorable evidence, not speculation.
The Court turns next to Kleinerman’s reliance argument. Kleinerman argues that he has
raised enough of a possibility that the Perrigo Group’s did not rely on the Defendants’
misstatements, and the possibility of that issue becoming a focus of the case, that the Perrigo Group
cannot lead the class.
Both section 10(b) and 14(e) claims include a reliance requirement. See In re ValueVision
Int'l Inc. Sec. Litig., 896 F. Supp. 434, 448 (E.D. Pa. 1995) (internal citations omitted). The
traditional way a plaintiff demonstrates reliance is directly, i.e., “by showing that he was aware of
a company’s statement and engaged in a relevant transaction . . . based on that specific
misrepresentation.” Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014)
(internal citation omitted). A plaintiff can also satisfy the reliance requirement by invoking a
rebuttable presumption of reliance. Basic Inc. v. Levinson, 485 U.S. 224, 245-47 (1988). In such
a case, anyone who buys or sells the stock at the market price may be considered to have relied on
those misstatements. Id. at 245. The presumption is rebuttable, however. “Any showing that
severs the link between the alleged misrepresentation and either the price received (or paid) by the
plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption
of reliance.” Id. at 248. “In that case, a plaintiff would have to prove that he directly relied on the
defendant’s misrepresentation in buying or selling the stock.” Halliburton, 134 S. Ct. at 2408.
Kleinerman claims that the various public statements he submitted create a sufficient
question over whether the Perrigo Group relied on their own research or Papa and Perrigo’s
misstatements when voting against the Mylan tender offer. The Court again disagrees.
The Court first considers the merit of Kleinerman’s argument. See Beck, 457 F.3d at 300
(“If a court determines an asserted unique defense has no merit, the defense will not preclude class
Successful non-reliance cases of the kind asserted by Kleinerman are
“exceedingly rare,” but they are possible. GAMCO Inv’rs, Inc. v. Vivendi, S.A., 927 F. Supp. 2d
88, 104 (S.D.N.Y. 2013), aff’d, 838 F.3d 214 (2d Cir. 2016). The evidence submitted by
Kleinerman is meager, however. For example, Kleinerman strongly relies on the September 10,
2015 news article as evidence of non-reliance. The article contains a number of quotes from
Rabinan, the Meitav executive, explaining why Meitav opposed the tender offer. Included in those
reasons are Rabinan’s belief that Perrigo shareholders should not “giv[e] up on such a company
and a manager like Joseph Papa, who has generated amazing value for investors,” Sommers Decl
Ex 2 at 1, Dkt. No. 18-3; that Mylan will not be able to take advantage of synergy, id. at 2; and
that Papa had “argued that the [tender offer] price was not right,” concluding that he “think[s] that
in this case, [Papa] acted correctly;” id. at 2. These reasons are similar to the misstatements in the
Complaint. That is, Papa allegedly falsely claimed that the company had a “strong competitive
position” and “strong organic growth,” id. ¶¶ 20, 23; that the company was expecting “tremendous
revenue synergies,” id. ¶ 24; and that Mylan’s tender offer was too low, id. ¶ 20. Moreover, the
article came out in September 2015, after Papa and Perrigo made the bulk of these alleged
misstatements. See Compl. ¶¶ 20-30. It is hard to see how this article is probative evidence that
the Perrigo Group did not rely on Defendants’ statements when it echoes those same statements.
The two other articles Kleinerman relies on are equally unhelpful. One article, where the
author opined that the Perrigo Group members should reject the tender offer because it could hurt
their performance relative to the TA-25 index, does not demonstrate non-reliance. It does not
contain any statements from Perrigo Group members themselves and does not suggest that Papa’s
statements would not have an impact on the Perrigo Group’s rejection of the offer. See Sommers
Decl. Ex. 3. The other article, where an analyst who works for a nonparty affiliate of Migdal
predicted that the Mylan offer would probably break down and that the Perrigo stock price was
off, also does not tie back to the Perrigo Group members themselves. 2 Id. Exs. 4-7. Were these
few articles with quotes from non-parties enough to subject the Perrigo Group to a unique reliance
defense, there is little chance any decent sized institutional investor would be able to serve as lead
Based on the record before the Court, it is not convinced that Kleinerman’s non-reliance
argument has merit. At best, these articles support a speculative inference that the Perrigo Group
did not rely, either directly or indirectly, on the alleged misstatements. The Court agrees with
Judge Wettre’s finding on this point.
Kleinerman disagrees, and likens the statements here to those in In re Petrobas Securities
Litigation, 104 F. Supp. 3d 618 (S.D.N.Y. 2015), where the presumptive lead plaintiff’s public
comments were a factor in finding that it was subject to reliance defenses. But the disqualifying
statements in that cases were substantially different than the ones here. There, a member fund of
the lead plaintiff group publicly stated that the defendant company was operating poorly; then,
after the alleged fraud was revealed, the fund made “a significant investment” in the company after
the class period, stating publicly that its decision to purchase was based on “significant production
upside, which is not reflected in the current depressed valuation.” Id. at 623. The court found that
such statements “provide fodder for defendants to argue that [the fund] relied on its own valuation
Kleinerman also argued below that Mylan’s CFO presented the offer to certain Perrigo Group
members, as well as other Perrigo investors, at an investor presentation. See Reply Br. at 19-20,
Dkt. No. 18. He does not reassert the argument now. Nonetheless, the Court agrees with Judge
Wetter’s finding that it does not demonstrate non-reliance.
of Petrobas securities, and not on their market price.” Id. (citing Rocco v. Nam Tai Electronics,
Inc., 245 F.R.D. 131, 136 (S.D.N.Y. 2007) for the proposition that post-class purchases show
reliance on one’s own assessment of stock value, not on the market).
Here, however, there is only one article attributable to the Perrigo Group members and the
statements therein support reliance, instead of cut away at it. Nor are there any allegations that the
Perrigo Group made similar post-Class Period transactions in Perriogo securities, a focus of the
Petrobas court’s decision. Moreover, the statements in Petrobas must be read in context. By that
point, the court had already explained that the presumptive lead plaintiff was a “lawyer-driven
artificial grouping,” had a convoluted structure, had little dealings with one of its attorneys, had
no relationship with another firm it sought to appoint as co-counsel, included several entities that
traded only a small number of shares late in the Class Period, and placed its trades after the fraud
was partially disclosed, which raised “serious questions” about reliance. Id. at 623. In the Courts
view, it was the collection of these issues, coupled with the post-Class Period trades, that undid
the Petrobas presumptive lead plaintiff, not the mere existence of public statements explaining a
Kleinerman also claims that even if the non-reliance argument has little merit it will still
be a distraction and waste resources. Reliance issues will be raised in discovery and later in the
litigation, he claims. That may be true. But it does not necessarily mean the Perrigo Group cannot
be lead plaintiff. Kleinerman must show more than the possibility an issue will arise. He must
show that reliance will be addressed at the expense of the class such that the Perrigo Group cannot
do a fair and adequate job as lead plaintiff. The Court is not convinced Kleinerman has made such
a showing. This is so, in part, because the Perrigo Group has demonstrated that it is an organized
group of sophisticated entities with independent general counsel who have lead plaintiff
experience in prior securities fraud cases. See Op. 16:1-8. And their chosen counsel are similarly
sophisticated and experienced in these matters. See id. 19:11-21. Should they be required to
address reliance issues in discovery or later in the litigation, there is no evidence the tasks will be
too burdensome to handle without impacting the rest of the class. 3
For the reasons set forth herein, Judge Wettre’s Order dated February 10, 2017 is
ADOPTED in full.
/s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
United States District Judge
The Court does not suggest that time spent in discovery and defending arguments can never factor
into a successful unique defenses rebuttal. But, in this case, the Court’s conclusion that the issue
will not waste resources or burden the party must be read in conjunction with the dubious merit of
the reliance defense offered here.
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