IN RE BP ERISA LITIGATION
MEMORANDUM AND ORDER denying 232 MOTION for Leave to File Amended Complaint (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
IN RE: BP P.L.C. SECURITIES
March 08, 2017
David J. Bradley, Clerk
MDL No. 4:10-MD-2185
This document relates to:
Civil Action No. 4:10-cv-4214
IN RE: BP ERISA LITIGATION
Honorable Keith P. Ellison
MEMORANDUM AND ORDER
Before the Court is ERISA Plaintiffs’ Motion for Leave to File an Amended Complaint.
(Dkt. 232 (the “Motion”).) Defendants oppose the Motion, arguing that Plaintiffs’ proposed
amended complaint fails to state a claim, and that leave to amend should therefore be denied as
futile. (Dkt. 235.) The Court agrees. Plaintiffs’ Motion must be denied.
This is far from the first time that Defendants have challenged Plaintiffs’ pleadings in the
course of this nearly seven-year-old litigation. In March of 2012, the Court granted Defendants’
motion to dismiss Plaintiffs’ First Consolidated ERISA Complaint, holding that Plaintiffs had
failed to adequately rebut the so-called “Moench presumption of prudence.”2 Later that year,
Plaintiffs filed a motion for leave to amend, but the Court denied the motion because the
The Court has previously provided a detailed factual background of Plaintiffs’ ERISA
action and will refrain from repeating itself here. (See, e.g., Dkt. 116 at 1-14.)
The Moench presumption provided that company stock is a presumptively prudent
investment for certain employee benefit plans. Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243,
254 (5th Cir. 2008) (adopting the presumption of prudence articulated in Moench v. Robertson,
62 F.3d 553, 571 (3d Cir. 1995)). To overcome the presumption, a plaintiff had to allege
“persuasive and analytically rigorous facts demonstrating that reasonable fiduciaries would have
considered themselves bound to divest.” Id. at 256.
proposed amendments would have been futile in light of the Moench presumption. Plaintiffs
timely appealed to the Fifth Circuit.
It turned out, however, that these motion-to-dismiss proceedings were largely for naught.
While this case was pending appeal, the Supreme Court scuttled the Moench presumption and
created a new framework for evaluating claims against certain ERISA fiduciaries. See Fifth
Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2466-67 (2014). Accordingly, the Fifth Circuit
vacated this Court’s order denying leave to amend and remanded the matter for reconsideration
in light of Dudenhoeffer. (Dkt. 147.) On remand, this Court granted Plaintiffs’ motion for leave
to amend their complaint, but did so with some concern—Dudenhoeffer proved challenging to
apply. (See Dkt. 170 at 23-30.) Given the uncertainty surrounding the governing legal standard,
at Defendants’ request, the Court certified the issue for interlocutory appeal to the Fifth Circuit.
(Dkt. 178.) In certifying the matter, the Court noted that “if Defendants are correct in their
interpretation of Dudenhoeffer”—and the Fifth Circuit has since confirmed that they were—
“then none of Plaintiffs’ prudence claims would survive a motion to dismiss.” (Id. at 4.)
In the meantime, this Court declined to stay proceedings pending the interlocutory
appeal, and Plaintiffs filed an amended complaint. The amended complaint asserted two general
theories of liability (the “Prudence Claims” and “Monitoring Claims,” respectively): (i) that the
“Insider Defendants”3 and “Corporate Defendants” breached their duties of prudence and loyalty
by permitting BP’s 401(k) Plan (the “Plan”) participants to invest in the BP Stock Fund at an
artificially inflated price; and (ii) that numerous defendants breached their duties to adequately
monitor the fiduciaries whom they appointed. (Dkt. 173 at 89, 93.) Defendants moved for
The term “Insider Defendants” refers to the Defendants who are alleged to have had insider
information regarding the artificially inflated value of BP’s stock. These Defendants included
BPNAI, Anthony Hayward, Lamar McKay, Neil Shaw, and James Dupree. (TAC ¶ 338.)
partial dismissal, which the Court granted.
The Court’s order dismissed the
Prudence Claims against the Corporate Defendants and the Insider Defendants, with the
exceptions of Insider Defendants McKay, Shaw and Dupree, and further dismissed the
Monitoring Claims in their entirety. (Id. at 30; see also Dkt. 223 at 2 n.5.) This ruling left
Plaintiffs’ complaint on unstable ground. Only the Prudence Claims against McKay, Shaw, and
Dupree remained, and those claims were the subject of Defendants’ pending interlocutory
Following several rounds of briefing,4 the Fifth Circuit held that this Court erred in
granting Plaintiffs’ motion for leave to amend the Prudence Claims; the proposed amended
complaint failed to plead sufficient factual allegations to state a claim, and leave therefore should
have been denied as futile. The Fifth Circuit accordingly reversed the judgment of this Court
and remanded the matter for further proceedings. Whitley v. BP, P.L.C., 838 F.3d 523, 529 (5th
Cir. 2016). As a result of this ruling, Plaintiffs were left without a single viable claim.
Plaintiffs now move for leave to file another amended complaint, attaching a proposed
amended complaint that purportedly cures the deficiencies identified by the Fifth Circuit.5 (Dkt.
232, Ex. A (the proposed “TAC”).) Plaintiffs have substantially bolstered the TAC with specific
factual allegations, expressly weighed the “harm” and “good” of each proposed alternative, and
even taken the unconventional approach of appending two expert reports to the proposed
pleadings to show the bases for their factual allegations. Defendants maintain that the TAC fails
to state a claim and that leave to amend should once again be denied as futile.
The issue was the subject of numerous briefs filed by the parties, as well as the Secretary of
Labor and the Securities Exchange Commission, both of which filed briefs as amicus curiae.
Plaintiffs expressly disclaim any attempt to rehabilitate the claims that this Court dismissed
in its October 2015 order. (Mot. at 3 n.5.) The Motion focuses solely on sufficiently bolstering
the Prudence Claims against McKay, Shaw, and Dupree.
Plaintiffs move for leave to amend their complaint under Rule 15(a)(2) of the Federal
Rules of Civil Procedure. “Rule 15(a) declares that leave to amend ‘shall be freely given when
justice so requires’; this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Accordingly, district courts in the Fifth Circuit “must entertain a presumption in favor of
granting parties leave to amend.” Mayeaux v. Louisiana Health Service and Indem. Co., 376 F.3d
420, 425 (5th Cir. 2004). Leave to amend may be denied, however, in the case of “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, [or] futility of
amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
Futility is shown by amendments which “advance[e] a claim or defense that is legally
insufficient on its face, or . . . fail[ ] to include allegations to cure defects in the original
pleading.” 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. and Proc. § 1487
(3d ed.). In other words, Plaintiffs will be denied leave to amend only if “the amended complaint
would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co.,
LLC, 234 F.3d 863, 873 (5th Cir. 2000); see also Landavazo v. Toro Co., 301 Fed. Appx. 333,
337 (5th Cir. 2008) (affirming denial of leave to amend after determining that “[a] review of the
amended complaint leaves the reader speculating as to what conduct, even if taken as true,
occurred that would give rise to a right to relief”).
A complaint fails to state a claim if it does not “contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility
standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that
a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations,
but must set forth more than “labels and conclusions [or] a formulaic recitation of the elements
of a cause of action.” Twombly, 550 U.S. at 555 (citation omitted).
Ultimately, the Court must decide whether Plaintiffs’ proposed amended pleading states
at least one valid claim when viewed in the light most favorable to Plaintiffs. In making this
determination, the Court will accept the complaint’s well-pleaded facts as true, but will not
imbue legal conclusions with the same assumption of truth. Iqbal, 556 U.S. at 678 (citation
omitted). Nor will the Court “ ‘strain to find inferences favorable to the plaintiffs’ ” or “accept
‘conclusory allegations [or] unwarranted deductions.’ ” R2 Investments LDC v. Phillips, 401
F.3d 638, 642 (5th Cir. 2005) (quoting Southland Secs. Corp. v. INSpire Ins. Solutions, Inc., 365
F.3d 353, 361 (5th Cir. 2004)). The Court will confine its analysis to the contents of the TAC;
documents provided by the parties will be disregarded, unless they are referenced in the TAC
and are central to Plaintiffs’ claims. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498–99 (5th Cir. 2000).
The only issue raised in the briefing is whether the TAC satisfies the standard for
pleading an ERISA stock drop claim against Defendants McKay, Dupree, or Shaw.
Supreme Court first elucidated the relevant standard two years ago in Fifth Third Bancorp v.
Dudenhoeffer: “To state a claim for breach of the duty of prudence on the basis of inside
information, a plaintiff must plausibly allege an alternative action that the defendant could have
taken that would have been consistent with the securities laws and that a prudent fiduciary in the
same circumstances would not have viewed as more likely to harm the fund than to help it.”6
134 S. Ct. 2459, 2472 (2014).
But lower courts found the latter half of the standard challenging
to apply. See, e.g., In re BP p.l.c. Sec. Litig., 2015 WL 1781727, at *17 (S.D. Tex. Mar. 4,
2015), rev’d and remanded sub nom. Whitley v. BP, P.L.C., 838 F.3d 523 (5th Cir. 2016); see
also Harris v. Amgen, Inc., 788 F.3d 916, 925 (9th Cir. 2015), cert. granted, judgment rev'd, 136
S. Ct. 758 (2016). If rigidly construed, Dudenhoeffer would place a burden on plaintiffs that is
not often seen at the pleading stage. See In re BP p.l.c. Sec. Litig., 2015 WL 1781727, at *17
(“The weighing of harm versus good is inherently fact-specific and subject to expert analysis,”
and this is especially true in the securities context.).
The Supreme Court soon returned to the issue in Amgen, Inc. v. Harris to provide
additional guidance, 136 S. Ct. 758 (2016), and the Fifth Circuit subsequently provided guidance
of its own on Defendant’s appeal of this Court’s ruling. Whitley v. BP, P.L.C., 838 F.3d 523 (5th
Cir. 2016). In short, the courts confirmed that Dudenhoeffer imposes precisely this type of
“significant burden” at the pleading stage. Whitley, 838 F.3d at 529. Plaintiffs must allege “an
alternative course of action so clearly beneficial that a prudent fiduciary could not conclude that
[the action] would be more likely to harm the fund than to help it” and “offer facts that would
support such an allegation.” Id. (second emphasis in original). In other words, a plaintiff must
do more than show that the proposed alternative could have resulted in a net benefit to the fund;
he must “plausibly allege that no prudent fiduciary could have” reached the opposite conclusion
(i.e., that the proposed alternative would cause more harm than good). See id. (“the district court
recognized that if defendants have correctly read Dudenhoeffer to require ‘plaintiffs to plausibly
Of note, the Supreme Court formulated the standard in a slightly different way elsewhere in
its opinion: “lower courts . . . should . . . consider whether the complaint has plausibly alleged
that a prudent fiduciary . . . could not have concluded . . . .” Dudenhoeffer, 134 S. Ct. at 2473
allege that no prudent fiduciary could have concluded that the proposed alternative action would
do more harm than good’—and Amgen has since confirmed that is the standard—then the
plaintiff’s claim should be dismissed.”) (second emphasis added). The Court is not aware of any
post-Amgen case in which a plaintiff met this significant burden.7
Here, Plaintiffs propose five alternative actions in an attempt to satisfy the Dudenhoeffer
Prior to the spill (and as early as May 15, 2008), publicly disclose in an SEC Form 8K filing that BP had not fully implemented its OMS safety program;
Prior to the spill (and as early as May 15, 2008), urge BP to make such a disclosure;
After the spill, freeze the stock fund pending an investigation into the prudence of
investing in the Fund and simultaneously disclose this action to the public;
This comes as no surprise. As the Court noted in its consideration of Plaintiffs’ previous
motion for leave to amend:
[If] Defendants’ construction of Dudenhoeffer [is adopted], the standard is
virtually insurmountable for all future plaintiffs—‘plausible sheep’ included.
Defendants’ counsel conceded as much at oral argument, postulating that one of
the only situations in which a EIAP fiduciary ‘could not have’ concluded that
public disclosure of insider information would do more harm than good is when
the company is so new that the employee benefit plans have not accumulated
large amounts of pre-existing stock.”
In re BP p.l.c. Sec. Litig., 2015 WL 1781727, at *17. On appeal, the Fifth Circuit held that
Amgen “confirmed” that “Defendants [had] correctly read Dudenhoeffer.” See Whitely, 838 F.3d
Plaintiffs cite to three cases in which a court allowed an ERISA stock drop claim to proceed
past the Rule 12(b)(6) stage. Two of the cases pre-date Amgen and are of relatively little
precedential effect. See Murray v. Invacare Corp., 125 F. Supp. 3d 660, 669 (N.D. Ohio, Aug.
28, 2015) (relying heavily on the 9th Circuit’s holding in Harris v. Amgen, 770 F.3d 865, 878–79
(9th Cir. 2014), which was later reversed by the Supreme Court in Amgen Inc. v. Harris, 136 S.
Ct. 758, 760 (Jan. 25, 2016)); see also Ramirez v. J.C. Penney Corp. Inc., 2015 WL 5766498, at
*4–5 (E.D. Tex. Sept. 29, 2015) (pre-dating Amgen). The third case involved a class
certification issue and, at most, seems relevant only to the “consistent with securities laws” prong
of the Dudenhoeffer standard. See In re Suntrust Banks, Inc. ERISA Litig., 2016 WL 4377131, at
*4 (N.D. Ga. Aug. 17, 2016).
Direct that all contributions to the Fund be held in cash (i.e., increase the “cash
buffer” provided for in the Plan) and simultaneously disclose this action to the public;
Report the fraud to the DOL and/or the SEC pursuant to their respective
whistleblower statutes, after which a public disclosure would be made concerning the
safety lapses and potential impact on profits.
(TAC at ¶¶ 285-336.) Defendants seem to concede that each proposed alternative satisfies
Dudenhoeffer’s first criterion; to avoid running afoul of insider trading laws, each of the
proposals contemplates public disclosure of either the action being taken or the insider
But therein lies the rub. It is undisputed that such a public disclosure of negative
information would likely have led to at least some negative effect on the price of BP ADS. Thus,
the question is whether “plaintiffs [have] plausibly allege[d] that no prudent fiduciary could have
concluded” that this negative effect would do more harm than any alleged benefit would do
good. Whitley, 838 F.3d at 523.
Proposed Alternatives 1 and 2: Pre-Spill Disclosure
The parties’ briefing primarily focuses on the first two proposed alternatives, each of
which contemplates Defendants or other BP officials making the following disclosure in May of
2008 in an SEC Form 8-K:
It has come to the attention of the fiduciaries of the BP Stock Fund that the
Company has not implemented its OMS safety program on drilling rigs in the
Gulf of Mexico which the Company does not fully own. Implementation of OMS
reduces the risk of a catastrophic event including technical integrity failure and
loss of containment of hydrocarbons and other hazardous material at operating
sites in the Gulf. Failure to manage these risks could result in injury or loss of life,
environmental damage, and/or loss of production. If that risk occurs, our business,
financial condition, and results of operations could suffer and the trading price of
our securities could decline, in which case you could lose all or part of your
investment. Accordingly, four business days ago the fiduciaries froze new
purchases and sales of the BP Stock Fund for BP's 401(k) Plan. Now that this
information has been disclosed, the fiduciaries will begin to trade in BP ADSs
again for the benefit of the Plan.
(See TAC at ¶ 285.) To quantify the hypothetical effect of making this disclosure, Plaintiffs’
financial markets expert, Cynthia Jones, measured the effect of ostensibly similar disclosures that
BP actually made between March of 2005 and October of 2007. (Dkt. 232, Ex. B (“Jones Dec.”)
¶¶ 13-27.) Based on this analysis, Jones concludes that “[t]he hypothetical disclosure would
likely have resulted in a correction to the stock price” and estimates that “the correction . . .
would have been in the 3 to 5% range.” (Jones Dec. ¶¶ 6, 28; see also TAC at ¶ 287-88 (citing
Plaintiffs allege that a prudent fiduciary would have conducted a similar
evaluation and reached the same conclusion. (See TAC ¶ 288.)
Jones’s work—or, more specifically, the allegations based thereon—forms the
centerpiece of Plaintiffs’ renewed efforts to state a claim under Dudenhoeffer. Plaintiffs theorize
that no prudent fiduciary could have concluded that “the possibility of a 3 to 5% decline from an
early disclosure” would be more harmful than “a late disclosure and/or catastrophic event,” such
as the Deepwater Horizon explosion and spill, “that would nearly eliminate [their] investments.”
(TAC ¶ 295; see also TAC ¶ 291.) Indeed, note Plaintiffs, the price of BP ADS declined by
nearly 50% when the undisclosed safety risk materialized in April of 2010—a percentage far in
excess of the 3-5% decline that allegedly would have resulted from early disclosure. (TAC ¶
294.) Framed in these terms, Plaintiffs’ allegations seem unassailable. But this framing is a
half-bubble off plumb, both undervaluing the negative effects of early disclosure and overstating
Dudenhoeffer expressly instructs courts to consider whether “publicly disclosing negative
information would do more harm than good to the fund by causing a drop in the stock price and
a concomitant drop in the value of the stock already held by the fund.” 134 S. Ct. at 2473
(emphasis added). Here, that “concomitant drop” would have been precipitous. As Plaintiffs
themselves acknowledge, the Plan held approximately $2.2 billion in BP ADS in mid-2008,
meaning that a prudent fiduciary “would have concluded the impact on the Fund’s holdings in
the event of a 5% decline would have been a decline of approximately $110 million in value.”
(TAC at ¶ 288.) In other words, in weighing the potential “harm” and “good” that would result
from Plaintiffs’ proposal of early disclosure, a prudent fiduciary would have considered the
harmful prospect of a stock drop that was imminent, substantial, and likely to occur.
Moreover, Jones’s conclusion arguably underestimates the extent of the stock drop.
Plaintiffs’ first alternative envisions Defendants making the disclosure as fiduciaries of the BP
Stock Fund. (TAC ¶ 285 (proposing a disclosure that begins, “It has come to the attention of the
fiduciaries of the BP Stock Fund . . . .”).) Such an unusual disclosure by ERISA fiduciaries
could “spook” the market, causing a more significant drop in price than if the securities
disclosure were made through BP’s customary corporate representatives. See Dudenhoeffer, 134
S. Ct. at 2473 (recognizing that the market can respond negatively if it infers that “insider
fiduciaries view the employer’s stock as a bad investment”). Defendants argue—and the Court
agrees—that a prudent fiduciary could have taken this potential outcome into account. Jones’s
estimate did not.
Plaintiffs argue, however, that while early disclosure may have proven harmful to the BP
Stock Fund’s holdings, purchases of BP ADS following the disclosure would have been made at
a lower price. Assuming a 5% decline, Plaintiffs calculate that this would have resulted in postdisclosure purchasers saving $35 million during the relevant time period.
This logic is problematic for two reasons. First, Plaintiffs fail to account for the other
edge of their sword: while purchasers would benefit from a post-disclosure decline in price,
sellers, on the other hand, would be harmed. Plaintiffs make no allegation that there was any
reason for a prudent fiduciary to believe that the Plan would be a net purchaser of BP ADS. (See
Dkt. 239 (“Reply”) at 9 (acknowledging that “the quantity of future Plan sales or purchases was
unknowable”).) To the contrary, Defendants note that the Plan proved to be a net seller during
the relevant time period. (Dkt. 235 (“Opp.”) at 15 (citing Jones Dec. at 5).) Second, the BP
Stock Fund was so heavily capitalized that it would have taken an almost inconceivable volume
of post-disclosure purchases to offset the effect of any “concomitant drop” in value of the $2.2
billion of BP ADS already held by the Fund.
Plaintiffs contend that these harms of early disclosure are nonetheless outweighed by an
important benefit: had the truth of BP’s limited safety response been properly disclosed, BP
would have fully implemented OMS on its rigs in the Gulf of Mexico, and the Deepwater
Horizon spill (and attendant price decline) would have been avoided. (Mot. at 8.) The value of
BP ADS declined by 50% in April of 2010, and the value of the Plan’s holdings decreased by
$1.5 billion. (TAC at ¶ 294.) Accordingly, allege Plaintiffs, no prudent fiduciary could have
concluded that early disclosure—which would have resulted only in a 3-5% decline in value—
would do more harm than good. (See TAC ¶ 291, 295.)
But Plaintiffs’ argument relies on an unsupported premise: that a prudent fiduciary would
have known that making an early disclosure would avert a massive oil spill and decline in stock
price. The oil spill was inevitable only in hindsight, and ERISA subjects fiduciaries to no such
standard—the “fiduciary duty of care requires prudence, not prescience.” Rinehart v. Lehman
Bros. Holdings Inc., 817 F.3d 56, 64 (2d Cir. 2016), cert. denied, No. 16-562, 2017 WL 670226
(U.S. Feb. 21, 2017). Instead, a prudent fiduciary would have weighed the likely harm of a 3-5%
decline in value against the chance that a Deepwater Horizon-type disaster would arise absent
BP implementing OMS; the chance that early disclosure would lead BP to install OMS on
remaining rigs in the Gulf; and the chance that OMS would then successfully avert or mitigate
such a disaster. (See TAC ¶¶ 296-97; Reply at 2.) Nowhere do Plaintiffs plead facts from which
this Court can conclude that these odds were at all significant. To the contrary, as of May 2008,
an environmental disaster of this magnitude was unprecedented.
At bottom, Plaintiffs theorize that a prudent fiduciary could not have concluded that a
likely $66-110 million loss in value would harm the BP Stock Fund more than the possibility of
BP installing OMS would help it. The Court disagrees and therefore finds Plaintiffs’ first two
proposed alternatives insufficient to state a claim.
Proposed Alternatives 3, 4, and 5
The allegation that Defendants should have frozen the BP Stock Fund fares no better.
First, Plaintiffs misstate the relevant legal standard, alleging only that a prudent fiduciary “could
easily conclude that freezing the Fund would not have done more harm than good.” (TAC ¶
327.) And, more important, the TAC’s deficiencies are not limited to matters of form. Even
assuming, as Plaintiffs allege, that a prudent fiduciary would have known that KEMET
Corporation and The Home Depot, Inc. froze their funds in 2009 with no ill effects, there is
nothing to suggest that a prudent fiduciary would have found those situations at all comparable
to the crisis facing BP after the Deepwater Horizon explosion. To the contrary, in the midst of
such great uncertainty in the market following the explosion, a prudent fiduciary easily could
have concluded that freezing the fund would send a negative signal to the market and cause more
harm than good.
Plaintiffs’ fourth and fifth proposed alternatives—increasing the size of the BP Stock
Fund’s cash buffer and notifying the DOL and the SEC of BP’s process safety issues (see TAC
¶¶ 328-336)—add nothing to their more harm than good argument. Plaintiffs’ support of the
fourth alternative is expressly “based on a similar analysis as set forth in Alternative One,” which
the Court has already found inadequate. (TAC ¶ 331.) And as Defendants correctly argue in
opposition to Plaintiffs’ fifth alternative, reporting the fraud to the SEC would simply shift the
question rather than answer it. Plaintiffs seem to concede that this alternative would still require
public disclosure, (see TAC ¶ 336), but fail to adequately allege how a public disclosure in these
circumstances would lead to better results than those produced by the first alternative.
After considering the parties’ filings, all responses and replies thereto, and the applicable
law, the Court holds that Plaintiffs’ Motion for Leave to File Amended Complaint should be, and
hereby is, DENIED. All claims having been dismissed, the Court will enter final judgment in all
ERISA defendants’ favor in a separate document. The parties should submit an agreed form of
final judgment within seven days.
IT IS SO ORDERED.
Signed this 8th day of March 2017.
Hon. Keith P. Ellison
United States District Judge
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