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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MARTIN MEISSNER, Plaintiff, v. BF LABS INC., Defendant. ) ) ) ) ) ) ) ) )

Case No. 13-2617-RDR-KGS

BF LABS INC.S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS Defendant BF Labs Inc. (BF Labs), pursuant to Fed. R. Civ. P. 12(b)(6) and Local Rules 7.1(a) and 7.6, respectfully submits this memorandum of law in support of its contemporaneously filed motion to dismiss: I. NATURE OF THE CASE Plaintiff Martin Meissner, through his company TradeMost Enterprises Ltd. (Trademost), wire-transferred $62,598 to BF Labs for two 1,500 GH/s Bitcoin Miners (Bitcoin Miners) in late Spring 2013. Complaint, 24, 27. When Plaintiff placed his preproduction order and secured his place in the delivery queue for these Bitcoin Miners, he understood and agreed that [p]roducts are shipped according to placement in the order queue, and delivery may take 2 months or more after order . . . . Compl. 32. Because Plaintiff had not received his Bitcoin Miners from BF Labs by October, he advised BF Labs that he would refuse any shipment. Compl. 44. Based on this delay, Plaintiff filed his Complaint against BF Labs on December 2, 2013, despite the fact he understood that it took time to build these Bitcoin Miners, seeking consequential damages in excess of $5,000,000 on his purchase for $62,598. See WHEREFORE clauses to each Count of the Complaint. Plaintiff brought five causes of action: (1) breach of contract; (2) fraud; (3) negligent misrepresentation; (4) Kansas consumer

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protection act (deceptive acts); and (5) Kansas consumer protection act (unconscionable acts). See Compl. 63-97. BF Labs manufactures a line of high speed encryption processors for use in Bitcoin mining, research, telecommunication, and security applications. See Compl. 7. Once full production of this line of Devices begas, notice was sent to customers like Plaintiff advising that orders would be shipped as produced according to the order queue and that if anyone was unwilling to endure the wait, they had a final opportunity to cancel their order. See Compl. 39, 57. In this case, Plaintiff decided to wait on the production of his pre-order knowing that a multi-month wait was expected for the production and delivery of his order and that in Spring 2013, BF Labs had current back orders from June 2012 that would be shipped first. See Complaint 39. II. BACKGROUND ALLEGATIONS 1. 2. Plaintiff, through TradeMost, wire-transferred $62,598 to BF Labs for two 1,500 GH/s Bitcoin Miners in late Spring 2013. Complaint, 24, 27. When Plaintiff purchased these Bitcoin Miners, he understood and agreed that [p]roducts are shipped according to placement in the order queue, and delivery may take 2 months or more after order . . . . Compl. 32. Because Plaintiff had not received his Bitcoin Miners from BF Labs by October, he advised BF Labs that he would refuse any shipment. Compl. 44. BF Labs manufactures specialized technology equipment for Bitcoin mining. See Compl. 7. Orders are shipped as produced according to the order queue and that if anyone was unwilling to endure the wait, they had a final opportunity to cancel their order. See Compl. 39, 57. Plaintiff knew that a multi-month wait was expected for the production and delivery of his order and that in Spring 2013, BF Labs had current back orders from June 2012 that would be shipped first. See Complaint 32, 39. TradeMost wire-transferred the payment for the pre-order to BF Labs. Compl. 27.

3. 4. 5.

6.

7.

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8.

BF Labs had no idea that Plaintiff wire-transferred funds to it and understood that the funds received from TradeMost were for a separate order for Bitcoin Miners. Compl. 34. Plaintiff claims that if he had received the Bitcoin Miners earlier, he would have mined approximately 5,000 to 7,500 Bitcoins. Compl. 59.

9. III.

QUESTIONS PRESENTED The sole issues before this Court are: (1) whether Plaintiff can recover speculative,

unproven consequential damages of over $5,000,000 dollars based on a $62,598 pre-order of two Devices, based on the fact he believed that this technology (which changes rapidly) and which was on backorder at the time he ordered it, was not shipped to him fast enough even though he acknowledged shipment would take multiple months; (2) whether the economic-loss doctrine bars Plaintiffs fraud claims; (3) whether Plaintiffs negligent misrepresentation claims are also barred by the economic loss doctrine or at least barred by the fact that under Kansas law, a party cannot negligently misrepresent a present intent to perform in the future; and (4) whether Plaintiffs Kansas Consumer Protection Act claims are barred by the fact Plaintiffs company pre-ordered the Bitcoin Miners. IV. STANDARD OF REVIEW A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint and is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts. Fed. R. Civ. Proc. 12(b)(6); Sunrise Valley, LLC v. Kempthorne, 528 F.3d 1251, 1254 (10th Cir. 2008). To survive a motion to dismiss, a pleading must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Threadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements do not sufficiently state a claim. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). The Court should dismiss the Complaint because Plaintiff has not alleged facts that raise [his] right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Woolf v. Stewart, Nos. 102444JWL, 092466JWL, 2011 WL 484192, at *5 (D. Kan. Feb. 7, 2011) (citing Twombly and stating that [t]o survive a motion to dismiss, a plaintiff's complaint must include factual allegations that state a plausible claim for relief). Under

Twombly, mere labels and conclusions or a formulaic recitation of a claims elements will not do. Twombly, 550 U.S. at 555. Rather, Plaintiff must allege enough factual matter, taken as true, to plausibly suggest that Plaintiff can establish all of the elements of his claims. Id. at 556-57. Because the Complaint does not meet this standard, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court. Id. at 558 (alteration in original) (internal quotation marks omitted). V. ARGUMENT AND AUTHORITIES A. Plaintiff is not entitled to consequential damages as a matter of law.

Plaintiff purchased two Devices in a speculative, fluctuating, and emerging market and expect this Court to give it a windfall. Plaintiff asks this Court to award it over $5,000,000 based on a purchase of approximately $62,000 just months ago because it took BF Labs too long to produce and ship the Devices to Plaintiff. Plaintiff argues that if he had received a Bitcoin Miner during the summer, he could have mined thousands of Bitcoins, worth over $1000 each. Plaintiff complains about this despite acknowledging the fact that BF Labs alerted Plaintiff it would take multiple months to produce and ship Devices to Plaintiff. Unfortunately for Plaintiff, it is hornbook contract law that Plaintiff cannot recover such speculative damages.

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Courts reject consequential damage theories such as these whenever they are too speculative. United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11 (10th Cir.

1954)(Damages which are based on conjecture or speculation are, of course, not recoverable); Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762-68 (1996)(It is responsibility of trial judge to see that speculative and problematical evidence does not reach jury.); Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399, 870 P.2d 686 (1994)(Kansas requires that claimed lost profits be proved with reasonable certainty and cannot be based upon purely speculative or problematic evidence); HR Tech., Inc. v. Imura Int. U.S.A., Inc., 2010 U.S. Dist. LEXIS 86110, *14-15 (D. Kan. August 20, 2010); Kelley Metal Trading Co. v. Al-Jon/United, Inc., 877 F. Supp. 1478, 1484 (D. Kan. 1995). It is necessary that the trier of fact be guided by some rational standard, and a buyer cannot recover consequential damages if the evidence is based on rumors, guesses and assumptions. Olathe Mfg., 259 Kan. at 767. This is not a lost profits case. There is no proof, nor can there be, that Plaintiff lost anything. In a typical lost profits case, a party had purchased a good for resale and never received the good on time or the good was defective and they sued for lost profits. That is not the case here. Again, the Plaintiff filed his Complaint based on losses of profits he would have made if he had received the Devices sooner and actually mined thousands of Bitcoins. No case law supports a damage award for Plaintiff under the facts we have here. Rather, damages for lost profits based on claims such as Plaintiffs may only be recovered if they are proved with reasonable certainty and if they may reasonably be considered within the contemplation of the parties. National Farmers Organization, Inc. v. Kinsley Bank, 731 F.2d 1464 (10th Cir. 1984); see also Vickers v. Wichita State University, 213 Kan. 614, 618 (1974); La Villa Fair v. Lewis Carpet Mills, Inc., 219 Kan. 395, 405, 548 P.2d 825 (1976); Butler v. Westgate State Bank, 226

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Kan. 581, 602 P.2d 1276 (1979)(holding plaintiffs lost profits evidence was too speculative to be basis for recovery). First, damages here cannot be proved with reasonable certainty. The amount of

consequential damages that Plaintiff seeks is based entirely on guesses and assumptions, leaving out the critical truth that had Plaintiff received his miners when he posits he should have, so would everyone else who was awaiting devices ahead of him, and the delivery of devices to those behind him in the queue would also have occurred much earlier. As a result, Plaintiffs calculations, which are predicated on he alone receiving his equipment earlier, are at once selfserving, inaccurate, and highly inflated. The Kansas Court of Appeals recently defined speculative damages within the context of future lost profits as follows: [p]rospective or anticipated damages from the same acts or facts constituting the present cause of action, but which depend upon future developments which are contingent, conjectural, or improbable. Corefirst Bank & Trust v. JHawker Capital, LLC, 282 P.3d 618, 631-32 (Kan. App., June 15, 2012) (quoting Blacks Law Dictionary 392 (6th ed. 1990)). In Corefirst, the plaintiff was the developer of a residential subdivision and claimed that defendant failed to include their interests in a deed restriction. Id. In support of damages in future lost profits, the plaintiff submitted evidence that the subdivision continued to be developed, that five lots in the subdivision had already been sold for particular amounts, that these amounts predict what the developer could make on other lots, and that an expert testified the developer should be able to sell all lots in the subdivision. Id. The district court granted summary judgment because lost profits depended upon future developments that are contingent, conjectural, and improbable [and] are speculative and not reasonably ascertainable. Id. The Court of Appeals affirmed. Id.

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Plaintiffs lost profits damages here are predicated upon future developments that are even more contingent, conjectural, and improbable than those present in Corefirst. Plaintiff certainly cannot predict lost future profits from past profitability, considering that nothing in Plaintiffs Complaint stated that he had ever even mined a Bitcoin. Plaintiff is claiming damages based on his inability to mine a digital currency that trades in a market with swings that are more akin to a commodity. Prices have ranged from $68.50 to $1242, then down to $500 and back to $900, all within the past 6 months. If it had gone to zero his claim would be worthless, one day, then potentially spectacular the next if the price rebounded. The Kansas Supreme Court in Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 630 (2000) stated that if damages are contingent on the happening of some event and the plaintiffs cannot prove that contingency will occur, a damage award cannot stand. The damages here are too remote, too contingent, too speculative. Plaintiff is claiming that if he had received the Bitcoin Miners earlier, he would have mined approximately 5,000 to 7,500 Bitcoins. Compl. 59. This is different than a lost profits case where a party buys from a manufacturer a product for resale and they can easily prove their lost profits. See Texpor Traders, Inc. v. Trust Co. Bank, 720 F. Supp. 1100 (S.D.N.Y. 1989)(holding that buyer for resale of sweatshirts could recover for lost profits on confirmed customer orders, but that claim for lost profits on potential orders was too speculative for recovery). In a leading case on the issue of damages for lost profits, the United States Supreme Court held that recovery is not allowed, because the damages are too remote and speculative, where a defendant's breach or negligence prevents the plaintiff from entering into a transaction with a third party. Western Union Tel. Co. v. Hall, 124 U.S. 444, 8 S.Ct. 577 (1888). While

Plaintiff is not entering into a transaction with a third party here, he is arguing because he did not

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get the Device early enough, he was unable to mine Bitcoins and transfer these to third parties at market price. In Hall, the plaintiff sought to recover lost profits where Western Union was late in sending a certain message. Id. at 453. Hall claimed he would have purchased ten thousand barrels of oil at a cost of $1.19 per barrel had the message been delivered on time. Id. When the message arrived the next day, the price of oil had risen to $1.35 per barrel. Id. The Supreme Court held that damages for lost profits could not be awarded on these facts, stating: plaintiff has not suffered any actual loss. [ ...] All that can be said to have been lost was the opportunity of buying on November ninth, and of making a profit by selling on the tenth, the sale on that day being purely contingent, without anything in the case to show it was even probable or intended, much less that it would certainly have taken place. Id. at 454. This is similar to the situation here. Plaintiff has not suffered any actual loss. Rather Plaintiff merely lost an opportunity to mine bitcoins earlier. Plaintiff understood that it took two months or longer once he pre-ordered a Bitcoin Miner but now sues for millions of dollars asking this Court to go against hornbook contracts law in the process. In this case, had Plaintiff successfully mined any coins at all, would Plaintiff have sold them daily? Weekly? Monthly? And if so, for the maximum price possible, the lowest price, the average price? Or would Plaintiff have held them until the market peaked, or perhaps panicked and sold out when it reached a trough? No one can know, so claimed losses from missing out on this activity are therefore completely speculative as his Complaint is completely lacking of allegations that he has ever mined, traded or sold a Bitcoin. Next, [i]n determining the reasonable contemplation of the parties, the nature, purpose and particular circumstances of the contract known by the parties should be considered ... as well as what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made. Coastal Aviation, Inc. v. Commander Aircraft Co. 937 F. Supp. 1051, 1065 (S.D.N.Y.1996) 8

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(quoting Kenford Co., Inc. v. County of Erie, 73 N.Y.2d 312, 319 (1989)). Where the contract does not expressly define the scope or extent of lost profit damages recoverable in the event of a breach, a court may consider what the parties would have concluded had they specifically addressed the issue upon entering into the agreement. Honeywell Intl v. Air Products & Chemicals, Inc., 872 A.2d 944 (Del. Supr. 2005) (under New York law, supplier suing for breach of contract had claim for lost profits, but lost profits attributable to sales resulting from [defendants] post-Agreement acquisition of third party firm were not within reasonable contemplation of the parties at time of contracting). B. Plaintiff failure to cover also precludes a recovery of consequential damages.

Despite the fact Plaintiff is not entitled to speculative damages, Plaintiff could have purchased a Device from another company. Because Plaintiff failed to cover when cover was reasonably available precludes recovery of consequential damages, including lost profits, and Plaintiff has waived or estopped his claim for consequential damages. See, e.g. Kelley Metal, 877 F.Supp. at 1478 (lost profits were not recoverable because (1) buyer failed to establish that it attempted to mitigate its damages and (2) because such losses were speculative). The burden is upon the buyer to demonstrate a reasonable attempt on his or her part to prevent further loss by cover. International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 639 P.2d 29, 38 (1982). BF Labs cannot be liable for his contingent losses at law. 1. Plaintiff fails to state a claim because his Complaint acknowledges that he agreed to a multi-month time-frame to ship the Devices.

Each of Plaintiffs causes of action fail because BF Labs has not breached any contract, has not committed any fraud, has not negligently misrepresented anything to Plaintiff, and is in

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compliance with the FTC Rule - 16 C.F.R. 435.2 dealing with shipment1. The FTC Rule states, a seller has a reasonable basis to expect that it will be able to ship any ordered merchandise to the buyer [w]ithin that time clearly and conspicuously stated in any such solicitation. 16 C.F.R. 435.2(a)(1)(i). Under the FTC Rule, when a party such as Plaintiff places a pre-order, BF Labs informs the party a shipping period of two months or longer would take place, meeting the requirements of 16 C.F.R. 435.2. Plaintiff affirmatively elected to proceed with his purchase knowing that the Bitcoin Miners could take months to manufacture. Plaintiff admitted in the Complaint that he knew that orders were nearly a year behind at the time he decided to pre-order two Bitcoin Miners. Compl. 32. Plaintiff, instead of waiting for the delivery of the Bitcoin Miners under the terms to which he agreed, decided to bring the current action seeking speculative damages of over 80 times the price he paid to pre-order the Bitcoin Miners. Plaintiffs claims fail as a matter of law. 2. Plaintiffs fraud claim is barred by the economic-loss doctrine and should be dismissed.

Plaintiffs fraud claim -- based exclusively upon BF Labs alleged breach of contract for not shipping a Device fast enough -- is barred by the economic-loss doctrine. The economic-loss doctrine is aimed to prevent contract law from dissolving into tort law by drawing a distinction between commercial transactions, where contract law protects economic expectations, and consumer transactions, where tort law remedies physical injuries to individual consumers. Louisburg Building & Development Co. v. Albright, 45 Kan.App.2d 618, 655-56 (2011) BF Labs is also in compliance with the Kansas Uniform Commercial Code standards that govern shipment. Under the Kansas Uniform Commercial Code, [t]he time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time. K.S.A. 84-2-309. Here, the parties agreed to the time for shipment or delivery two months or longer. And even if the parties had not agreed to a specific time, BF Labs shipment and delivery of Bitcoin Miners happens in a reasonable time under the circumstances.
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(applying economic loss doctrine to a fraudulent inducement claim). This case presents a breach of contract claim and an entirely duplicative fraud claim, both seeking the same damages. The economic loss doctrine prohibits the assertion of such duplicative claims to prevent the unnecessary complexity that would result from allowing every breach of contract to give rise to a tort. Id. at 655. Consequently, Plaintiffs fraud claim must be dismissed. 3. Plaintiffs negligent misrepresentation claim also fails and should be dismissed.

Plaintiffs negligent misrepresentation claim -- also duplicative of his breach of contract claim -- is also barred by the economic-loss doctrine. Raab Sales, Inc. v. Domino Amjet, Inc., 530 F. Supp.2d 1192, 1198-99 (D. Kan. 2008) (applying economic loss rule to negligent misrepresentation claim, although based upon Illinois law). But looking past the economic-loss doctrine, under Kansas law, a person cannot negligently misrepresent a present intent to perform in the future. Near v. Crivello, 673 F. Supp.2d 1265, 1279 (D. Kan. 2009). Rather, the exclusive remedy for misrepresentation of intention to perform an agreement lies in the action for deceit. Gerhardt v. Harris, 934 P.2d 976, 986 (Kan. 1997) (quoting City of Warrensburg, Mo. v. RCA Corp., 571 F. Supp. 743, 753 (W.D. Mo. 1983)). Cases from this judicial district routinely dismiss claims of negligent misrepresentation that relate to promises of future action. See Bank Midwest v. Millard, 2012 WL 2583385, at *4 (D. Kan., July 3, 2012); Kansas Waste Water, Inc. v. Alliant Techsystems, Inc., No. 02-2605, 2005 WL 1109456, at *16 (D. Kan. May 9, 2005). 4. Both Plaintiffs Kansas Consumer Protection Act claims (Counts IV and V) fail because TradeMost pre-ordered the Bitcoin Miners.

TradeMost is not a consumer as defined by the KCPA. A consumer is an individual, husband and wife, sole proprietor, or family partnership who seeks or acquires property or services for personal, family, household, or business or agricultural purposes. KAN. STAT. 11

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ANN. 50-624. A corporation or similar entity that has suffered an injury as a result of a deceptive or unconscionable act or practice cannot assert a claim under the KPCA. Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071, 1076-77 (D. Kan. 2004) (citing Wayman v. Amoco Oil Co., 923 F. Supp. 1322, 1363 (D. Kan. 1996)). The individual or sole proprietor must have suffered the injury in order to bring the claim. Kestrel Holdings, 316 F. Supp. 2d at 1076-77. Here, Plaintiffs Complaint acknowledges that TradeMost wire-transferred the payment for the pre-order to BF Labs. Compl. 27. In fact, BF Labs believed that the money received from TradeMost was for an order that had not actually been placed, as BF Labs could not match the payer name to any order in its system. Compl. 34. Plaintiff attempts to get around this by alleging that he placed the order as a consumer and not on behalf of TradeMost. Compl. 29, 30. However, in Kansas courts cannot ignore the obvious import of specific allegations in a petition and accept the plaintiff's mischaracterization of them in order to preserve a consumer protection claim that obviously does not arise from a consumer transaction under the Kansas Consumer Protection Act. Berry v. National Medical Services, Inc., 41 Kan.App.2d 612 (2009)(Syl. 12). This situation is somewhat akin to Limestone Farms v. Deere & Co., 29 Kan. App. 2d 609, 29 P.3d 457 (2001). In Limestone Farms, an individual negotiated the purchase of a planter, which his limited liability company purchased. The individual and his LLC later sued the seller under the KCPA in relation to performance defects with the planter. The Kansas Court of Appeals affirmed the entry of summary judgment on the KCPA claim. The Court noted that the individual (Mr. Beim) did not buy the planter from the seller, and consequently that: the planter was not property subject to a consumer transaction as defined by the KCPA. In the present case, it is undisputed Beim never personally bought nor

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actually acquired the planter. Thus, Beim is not a consumer; therefore, defendants were not involved in a consumer transaction with Beim, and Beim cannot maintain an action based on K.S.A. 50-626 or K.S.A. 50-627. Id. at 612-13. A similar outcome was reached in Kestrel Holdings, 316 F. Supp. 2d at 1071. There, plaintiff-purchaser Kestrel Holdings, LLC argued that it could bring an action under the KCPA against the defendants, Learjet Inc. and Bombardier Inc., because two individuals, Peter Mason and Ross Manire, had assumed specific liability for the aircraft. Id. at 1076. The court denied the plaintiffs claim, holding that: the KCPA claim belongs to the corporation, which does not have standing to sue under the KCPA because it is not a consumer. See Kan. Stat. Ann. 50-624(b); see also Whittenburg v. L.J. Holding Co., 830 F. Supp. 557, 566 (D. Kan. 1993), (holding that because Learjet was titled in corporate name, individual plaintiffs did not have standing to bring KCPA claim even though the Learjet was purchased with the individual plaintiffs' personal funds; rather, KCPA claim belonged to the corporation). Finally, this very Court, less than two years ago found that A corporation is not a consumer under the KCPA. In re Motor Fuel Temperature Sales Practices Litigation, 2012 WL 1672994 (D. Kan. May 14, 2012)(J. Vratil) citing Kastrel Holdings I, L.L.C., 316 F.Supp.2d at107677 (D. Kan. 2004). The Court went on to say [m]otor fuel purchases on Wonderland credit cards reflect transactions between Wonderland and defendants. Wilson in his individual capacity was not a party to any transaction between Wonderland and defendants. Any KCPA claim for Wonderland purchases therefore belongs to Wonderland, which cannot sue under the KCPA because it is not a consumer. (citations omitted). Thus, under both Article III and the KCPA, Wilson lacks standing to sue as guarantor of the corporate credit cards. Consequently, Plaintiff is barred from bringing this action under the KCPA. WHEREFORE, BF Labs respectfully requests that the Court enter its order dismissing Plaintiffs consequential damages request in each Count of the Complaint and dismissing Counts 13

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II, III, IV and V of Plaintiffs Complaint with prejudice, and award such other relief as the Court deems just and proper. Respectfully submitted,

James M. Humphrey KS Fed. #70664 Michael S. Foster KS #24011 Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, Missouri 64112-1895 Telephone: (816) 753-1000 Facsimile: (816) 753-1536 jhumphrey@polsinelli.com mfoster@polsinelli.com Attorneys for Defendant BF Labs Inc.

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CERTIFICATE OF SERVICE I hereby certify that on ___________, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Robert F. Flynn The Flynn Law Firm, P.C. 1150 Grand Blvd., Suite 300 Kansas City, MO 64106-2303 Attorneys for Plaintiff

Attorney for Defendant

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