Legal Case Summary

The Honorable, the Judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, oye, all persons having any manner or form of business for the Honorable, the United States Court of Appeals for the Fourth Circuit are admonished to draw now and give their attention for the court is now safe. God save the United States and this Honorable Court. May we see it? Mr. Weiss, will you ready? Good morning. My name is Brad Weiss. I represent the appellant in this case and if I could take 35 seconds to give you just a little bit of history of the individuals involved before I go into some of the issues, I think it might be helpful. Priority auto group is owned by a gentleman named Mr. Dennis Elmer. Mr. Elmer grew up in the area of Norfolk and Chesapeake and always wanted to be in the car business and eventually moved to Tyson's, worked in the car business and always wanted to come back here. He had an opportunity to purchase a franchise and from that developed a very large automotive group that was successful personally, financially and in serving the community in the area he gives back to the community. Mr. Council on the other hand was an individual whose family had owned a four dealership for about 50 years. Mr. Elmer had always gone by that four dealership in his youth and always wanted to be a four dealer. He had represented many other franchises. He had earned more wealth than he probably knew what he could do with but he wanted to be a four dealer

. And for many years he would go visit Mr. Council at Kimlock Ford and say if you ever decided to sell, I want to buy that. All of this information is in the transcripts of the deposition of Mr. Council and Mr. Elmer. And one day Mr. Council said, I'm ready but I want to work with you. I want to be a part of the priority group that comes from his deposition transcript. And so a deal was struck in which Mr. Elmer through one of his companies would purchase the real estate as well as the stock. And Mr. Council would remain a 10% equity owner receiving distributions every year and had the right to assign it to a son if he chose to do so when he retired or passed away. Mr. Elmer was so excited that before the deal was completed he contacted Ford Motor Company because he knew many of the people at Ford they had worked at Toyota and other places. You'll see in the appendix 416 is an email from Mr. Elmer on July 6 of 2010 saying guys essentially and GALs. I'm going to do this Ford dealership and I look forward to being a great Ford dealership and as he testified in his deposition was prepared to put in new building spending approximately $10 million for Ford

. The very next day there's an internal email from the corporate desnet which is named so kind or I think she got married and changed her name dated July 7th. That's at the appendix 415 and 416. And if you read it along with the other documents that were found in this case. It's an aha moment. We can implement our plan get rid of Kim Knock. We're not telling Mr. Elmer what we're doing. We're going to exercise the first right of refusal. Take this over. Transfer it to a company that has no assets and divided up amongst the competitors in the market. What's also most telling as we go through this story. You'll see it appendix 536 a diagram. It is a market representation report done by Ford in 2009. And in that report Kim Knock is showing the second best sales of cars, trucks and fleet vehicles in the second highest profit in the market area. So by September of 2010 Mr. Elmer has entered into an asset purchase agreement. Back on July 8th he sends in an application which is at the appendix 419 to 424

. And on 424 you'll see a little note. I look forward to being a Ford dealer. That's what's his life dream. That was the daily work down. So now we come to the statute. We have 546.2 1569 333A in which under 3A I call it 3.5. There are 3.5 reasons in which a manufacturer under the statute is entitled to decline a dealer applicant who by statute by statute is granted standing. It says it right in the statute expressly. Not inferred, not something you have to look at. It says it right there. And the three grounds for rejecting an applicant are I believe it was your financial status, your moral character and maybe your customer standing, something along those lines. The half your honors and I guess the crux of part of the issue in this case is the at the end of 426.2 1569 subsection 3A it says notwithstanding the forgoing a manufacturer may exercise their first writer of Fuse on accordance with 1569.1

. And so I think at this point this is in part where I think the magistrate in his reporting recommendation I think missed something. So I see this as two trains going down a track or a mixed metaphor is two bundles of rights. On the one hand Mr. Council has certain rights as the selling dealer. Ones are the contracts and ones of the statute. Mr. Elmer priority has a second set of rights. Some of those are common law and some of those are statutes. So forward was obligated either to reject or refuse him. Testimony if you ask me for citation I'll give it to you. Absolutely great reputation. They wrote them a letter they wrote emails. He was a great candidate. So that wasn't an issue they didn't refuse him for one two or three. Their contention in a letter was were reject you not because of that but because we're exercising a first writer of refusal and their position is not really rejecting you because we're doing that. No not with standing reasons for rejection. Now having known as you said we are now exercising the option you said we rejected you because we don't but it's not rejecting

. Forward is taking the option which the statute says not with standing not having those reasons for objection you agree that they can exercise the option correct. I have the actual letter they wrote if you want to put on some of the statute that's not rejection of the statute that's taking an option. That's why I characterized it judge as three and a half so the three are your half is not consistent with the statute it said not with standing those three grounds this is another option but it's not a rejection. I don't disagree with you it's not it's not a rejection in that form under one two and three under three a it is an alternative that's why I call it a half however and even counsel admits this in a brief. The opposition brief page twenty one paragraph first paragraph line number six that in exercising the first writer of refusal it must be found valid. And so here's where I think the intersection of these issues sort of intervene so to speak and counsel's position and the court's position was that we had no standing now under forty six point two fifteen sixty nine three and three a we clearly had standing to bring a claim. And the issue then becomes did they properly exercise a right of first refusal so in this case we have contended and what is I think very interesting is the allegations in our lawsuit. I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that both of these Drug and Candidates study in these vorctorate districts showed up recently Invisible gimbal, this isn't the benefit of none of these 651 imagine if one of these 556 shouldn't have been successful. says the applicant who is not successful gets attorneys fees. That's one piece of the puzzle. Then we go back and look at the consideration in the first paragraph. It says, that count, which was count 4 was resolved between the parties. Yes, sir. That has been done. If you look at the first pair, if you've been paid what the statute provides, what's left for you? Our common law claim of torsional interference, which has not been resolved. And that is that they never had an intent. In a first-right refusal in looking at Virginia case law on it, you step into the shoes

. If I have a contract, you step into my shoes and you execute on it. That is not what they did. What they did was set up a scenario where they intended to assign it to their assigned e to break up the dealership, close the point, and solve the assets to competitors. How did they do it? They wrote a letter on April 21, 2011. There was sign e with a draft lawsuit seeking an injunction against my client and a claim against Mr. Counsel, Pendix 281-299. What else did they do? The attorney for DAC wrote an email, Pendix 304, making threats. They were not acting in good faith and in fair dealing. And what did Miss O'Connor say in her deposition when I grilled her? She could not recall if she ever threatened my client, but when I asked her, do you deny it? Meaning, do you deny that you've told him, if you raise a fuss, you're not going to get a franchise now in the future? They all go to the execution of that first-right refusal because the asset purchase agreement that was a part of this transaction was completely, totally changed by the end of the day with Mr. Counsel. And indeed, they required him to enter into a settlement and release agreement. How does that relate to me, my client? Well, if you step into my shoes, then you must execute on that transaction the same. The statute makes one adjustment. Mr. Washington, I asked you a question. Yes, sir. Do you think Ford could say hypothetically I'm not these facts, perhaps

. Say, all right, we're not rejecting as they did. We are rejecting the applicant, but we are exercising our option to purchase for the sole purpose of shutting this dealership down. Would you have a claim then? It's all they did. No nefarious letters, nothing but you said, just said, all right, we are exercising our option because we're going to shut this dealership down. They have a statutory problem. And that's, 1569 subsection five is the procedure for properly terminating a dealer. And that's within their franchise agreement. Right. They have a right to terminate a deal within their franchise agreement. And it's in the context of the agreement between the franchisee and franchisee. Yeah, if they wanted to terminate the dealer and we were not a party to a contract, I'd have no rights whatsoever. No, no, I'm giving you my scenario. You've done everything, Mr. Elmer's done everything he did, which is, as you said, was his forehood dream to own it, all those things, all those things. The only difference is Ford didn't mince around at all and said, our option, because we want to shut it down, period, then they proceed consistent with their agreement, franchise agreement, to do that, would you have a claim? That's the question. Under the statute, I think the answer would be yes. Oh, if you're claim

. Torsches interference. It would not be. It would not be. We had a contract with Mr. Counsel, a binding contract, which in part required a 10% equity interest. You knew that would be subject to the agreement that the dealer had with the franchise, wasn't right? They could certainly turn us down. I mean, they would have that right. And that goes to an affirmative defense on the restatement 769. They turned you down by exercising the option to purchase. The dealership. They did that. And they said, we were objective. Is it just to shut it down? That's my question. Well, what would be the torches interference there in the confounds of their agreement, aren't they? Sure. All right. We had a contract, an asset purchase agreement, the contemplative, Mr. Counsel, four important reasons would remain a shareholder in an ongoing dealership

. OK. And in lieu of terminating the dealer or the franchise agreement, in accordance with 1569 subsection five, if Ford chose to close the dealership down, I think that would be a problem. If they chose to sign it to someone else properly and run it as a dealership and give the 10% equity, then we wouldn't have a claim in that regard. We said, as a court, we don't sit as an embuzzment for business dealers deals and whether or not they're good or bad. We try to construe the law. And as you say, common law, perhaps. But what would be the grab of one of your common law torches interference or restatement of torches? So what would it be? If there were no improper means or methods asserted, you'd have to have an improper motive. We have an assertive and improper motive. Would you see that shutting the dealership down is not an improper motive? I have no idea if it's an improper motive. Because I'm not focused on improper motive. I'm focused on improper means and methods. No, you have to be focused because that's my hypothetical. That's my question. Would that constitute appropriate? Yeah, would that be an inappropriate motive? I'm not sure I know the answer to that. That's a very important question, I think, for you. All right. Your time is up unless my colleagues have heard

. I'll think about it on the reply if I may. So why don't you ask me just one thing before you sit down? You've been going back and forth between asserting a statutory claim and a common law claim. Are you saying that you have both claims still standing? Well, they're not standing because they were dismissed, but I was sure that yes. Both claims still be forced in this appeal? Yes. OK, because I had understood your answer, perhaps, to just judge H.E.'s question that once you were paid your fees that you were relying on torsious interference with contract, which would be a common law claim. Yes. And so I just wanted to clarify, you're still asserting your statutory claim as well. Yes, I don't think getting paid relieves them of the obligations completely under the statute. I just wanted to make sure that you were still in the contract for that. Thank you. Mr. Weiss, Mr. Forella. May it please the court, Dominic Forella, on behalf of Ford Motor Company. Let me begin, Judge Gregory, where you left off, which was to ask opposing counsel. Let's say Ford exercises a right-of-first refusal, buys the dealership, and then wants to shut the dealership down. Is there anything wrong with that? The answer to that is absolutely not. Ford has a statutory and contractual right, of course, to buy the dealership. That's the whole purpose of the right-of-first refusal. The Virginia statute recognizes as much. And once Ford or its designate owns the dealership, they of course have the perfect right. It's their business to shut it down if they're so inclined. So the flavor that runs through my opponent's brief, that somehow there's something nefarious about Ford buying the dealership, or its designate buying the dealership, simply has no basis in law. So let me start if I might with the statutory claim. Well, this court, this case, is decided on the pleadings anyway, wasn't it? That's right. But even at the pleading stage, the extended factual back that. Judge Keenan, I completely agree that not only do you not need to, but in fact, I don't think it's available to the court. This court said in Finley lines that when a case is decided on the pleadings, even when materials outside the pleadings are attached to the pleadings, which in this case, and even material is not referenced in the pleadings, when the district court doesn't use those, doesn't rely on them or look at them, and deciding a 12C motion, you decided on a normal 12C, 12B6 standard. And that's this case. So let me turn if I might to the statutory claim first. Judge A.G

. Let's say Ford exercises a right-of-first refusal, buys the dealership, and then wants to shut the dealership down. Is there anything wrong with that? The answer to that is absolutely not. Ford has a statutory and contractual right, of course, to buy the dealership. That's the whole purpose of the right-of-first refusal. The Virginia statute recognizes as much. And once Ford or its designate owns the dealership, they of course have the perfect right. It's their business to shut it down if they're so inclined. So the flavor that runs through my opponent's brief, that somehow there's something nefarious about Ford buying the dealership, or its designate buying the dealership, simply has no basis in law. So let me start if I might with the statutory claim. Well, this court, this case, is decided on the pleadings anyway, wasn't it? That's right. But even at the pleading stage, the extended factual back that. Judge Keenan, I completely agree that not only do you not need to, but in fact, I don't think it's available to the court. This court said in Finley lines that when a case is decided on the pleadings, even when materials outside the pleadings are attached to the pleadings, which in this case, and even material is not referenced in the pleadings, when the district court doesn't use those, doesn't rely on them or look at them, and deciding a 12C motion, you decided on a normal 12C, 12B6 standard. And that's this case. So let me turn if I might to the statutory claim first. Judge A.G., I think you asked my opponent, if they paid you your expenses, which is what sub four of 1569.1 requires, what's left of this case for you? And he did say, although he tried to attract the concession to Judge Keenan, he did say just my common law claim. And I think that's right. Because once Ford invokes its right of first refusal, we're inside 1569.1. And 1569.1 sets forth particular remedies if Ford does not properly follow through on all its promises in the right of first refusal. And those remedies are, number one, if Ford doesn't pay the dealership, everything that it would have gotten under the APA, the dealership, of course, could sue Ford and say, pay me what I'm owed. The dealership here didn't do that. The dealership is not in this court. They're not a party. They never sued. The second remedy is that Ford isn't must pay. They must agree to pay and then pay. They would be buyer its expenses. And there's no dispute in this case that that occurred. And so I don't see what's left of the statutory claim for my opponent

., I think you asked my opponent, if they paid you your expenses, which is what sub four of 1569.1 requires, what's left of this case for you? And he did say, although he tried to attract the concession to Judge Keenan, he did say just my common law claim. And I think that's right. Because once Ford invokes its right of first refusal, we're inside 1569.1. And 1569.1 sets forth particular remedies if Ford does not properly follow through on all its promises in the right of first refusal. And those remedies are, number one, if Ford doesn't pay the dealership, everything that it would have gotten under the APA, the dealership, of course, could sue Ford and say, pay me what I'm owed. The dealership here didn't do that. The dealership is not in this court. They're not a party. They never sued. The second remedy is that Ford isn't must pay. They must agree to pay and then pay. They would be buyer its expenses. And there's no dispute in this case that that occurred. And so I don't see what's left of the statutory claim for my opponent. Let's look at that a little bit. Sure. Of course, that's a very clear claim. But say, the three grounds for rejection, as it's undisputed here, are not mad and not an issue. But in further than the idea of protecting people in the shoes of the proposed purchaser, wouldn't it be a problem if you did a in-run because it said notwithstanding not having those three reasons, you could have the option. But the statute sets forth that you have to match, don't you? So if you could just do anything, and suppose for example, it's not just the end, for example. And then if you said, well, listen, I really don't want Mr. Elmer to find this thing, I'm gonna give you half of what he's giving you. And I want you to take it. And if you wanna deal with Ford for now on, you should take this deal. You think that they would be statutorily out of the mix just because you had the option and you did something like that. I think that's just a wise when he refers to the faries. You think they would have no statutor or rights to say no, in fact, you have did a in-round on them and had not exercised that notwithstanding provision of the statute properly. So the answer to that is that there is someone who would be able to bring a claim in that circumstance and that someone is Kim Knock, the dealer. The statute says they have the absolute right once Ford invokes the right of first refusal to get paid the same or greater than they would have gotten under the APA. And since they're getting out of the business anyway, they're either gonna sell to the buyer, they're gonna sell the Ford. I can't imagine why they would not in that case enforce their rights and say, pay me what I'm owed

. Let's look at that a little bit. Sure. Of course, that's a very clear claim. But say, the three grounds for rejection, as it's undisputed here, are not mad and not an issue. But in further than the idea of protecting people in the shoes of the proposed purchaser, wouldn't it be a problem if you did a in-run because it said notwithstanding not having those three reasons, you could have the option. But the statute sets forth that you have to match, don't you? So if you could just do anything, and suppose for example, it's not just the end, for example. And then if you said, well, listen, I really don't want Mr. Elmer to find this thing, I'm gonna give you half of what he's giving you. And I want you to take it. And if you wanna deal with Ford for now on, you should take this deal. You think that they would be statutorily out of the mix just because you had the option and you did something like that. I think that's just a wise when he refers to the faries. You think they would have no statutor or rights to say no, in fact, you have did a in-round on them and had not exercised that notwithstanding provision of the statute properly. So the answer to that is that there is someone who would be able to bring a claim in that circumstance and that someone is Kim Knock, the dealer. The statute says they have the absolute right once Ford invokes the right of first refusal to get paid the same or greater than they would have gotten under the APA. And since they're getting out of the business anyway, they're either gonna sell to the buyer, they're gonna sell the Ford. I can't imagine why they would not in that case enforce their rights and say, pay me what I'm owed. And of course, in that case, you don't need to look at any of this, but factually speaking, that's exactly what happened. Ford said, here's what I think your deal is worth. They came back and said, no, no, it's worth much more than that. And after extended negotiations and back and forth, threats of litigation, they agreed on a number. I guess the problem would be if the saleman may have a right of action perhaps, but it would be cured by just paying counsel the rest of the money is owed, even that would be the end of that. And that's actually Judge Gregor, I think really gets to the heart of this because what we have here is a situation where if anyone is owed anything, and it's our position that Ford paid Mr. Counsel, exactly what he deserved in Mr. Counsel, of course, accepted the deal. But if anyone's owed anything, Mr. Counsel would be owed something. And yet here we have priority in court saying, let's assume for a second, I'll make up a fact. Let's assume that at the end of the day, if all the facts here got adjudicated, and some jury decided, hey, Ford should have paid Mr. Counsel $500,000 more than he got. Now we don't think that's so, but let's say they did. Why would it be in that situation that priority could come in and ask for $15 million? That doesn't make any sense to me. And I think if I could, if I could propose an alternative factual situation for the court, just to illustrate how this statutory claim doesn't make sense. Let's assume that Ford exercised the right to first refusal, and everyone agrees that they paid Mr

. And of course, in that case, you don't need to look at any of this, but factually speaking, that's exactly what happened. Ford said, here's what I think your deal is worth. They came back and said, no, no, it's worth much more than that. And after extended negotiations and back and forth, threats of litigation, they agreed on a number. I guess the problem would be if the saleman may have a right of action perhaps, but it would be cured by just paying counsel the rest of the money is owed, even that would be the end of that. And that's actually Judge Gregor, I think really gets to the heart of this because what we have here is a situation where if anyone is owed anything, and it's our position that Ford paid Mr. Counsel, exactly what he deserved in Mr. Counsel, of course, accepted the deal. But if anyone's owed anything, Mr. Counsel would be owed something. And yet here we have priority in court saying, let's assume for a second, I'll make up a fact. Let's assume that at the end of the day, if all the facts here got adjudicated, and some jury decided, hey, Ford should have paid Mr. Counsel $500,000 more than he got. Now we don't think that's so, but let's say they did. Why would it be in that situation that priority could come in and ask for $15 million? That doesn't make any sense to me. And I think if I could, if I could propose an alternative factual situation for the court, just to illustrate how this statutory claim doesn't make sense. Let's assume that Ford exercised the right to first refusal, and everyone agrees that they paid Mr. Counsel everything that he deserved, same or greater consideration. And let's assume that Ford said to Ms. to priority, sure will pay you your expenses as the statute requires. And let's say that Ford said, here's your, you know, your expenses were $100,000, here's your $100,000. And priority said no, we're owed $101,000, all right? Under that scenario, under my opponent's theory of the statute, that would be an improper exercise of the right to first refusal, and priority could sue not for $1,000 under $15,69.1, but $15 million, under $15,69.3 a. That just doesn't make sense. The statute provides the remedies to which they're entitled and the remedy is their expenses. If I might turn to the torches interference claim, my opponent concedes that improper methods need to be shown here. They conceded it both today at argument and in their brief. And the fact of the matter is, they simply cannot show improper methods because on the face of their complaint, they say, Ford had a statutory right and a contractual right to exercise the right of first refusal. As soon as Ford exercised that right of first refusal, priorities ability to close on this deal on the APA was cut off. And the only thing that they were owed was their expenses. And so this court, the Virginia Supreme Court said, in the Lewis Gale case, torches interference does not lie when the party that's allegedly interfering has a statutory or contractual right to do so. I would submit to you that that's this case. This court can resolve this case on the improper methods ground alone

. Counsel everything that he deserved, same or greater consideration. And let's assume that Ford said to Ms. to priority, sure will pay you your expenses as the statute requires. And let's say that Ford said, here's your, you know, your expenses were $100,000, here's your $100,000. And priority said no, we're owed $101,000, all right? Under that scenario, under my opponent's theory of the statute, that would be an improper exercise of the right to first refusal, and priority could sue not for $1,000 under $15,69.1, but $15 million, under $15,69.3 a. That just doesn't make sense. The statute provides the remedies to which they're entitled and the remedy is their expenses. If I might turn to the torches interference claim, my opponent concedes that improper methods need to be shown here. They conceded it both today at argument and in their brief. And the fact of the matter is, they simply cannot show improper methods because on the face of their complaint, they say, Ford had a statutory right and a contractual right to exercise the right of first refusal. As soon as Ford exercised that right of first refusal, priorities ability to close on this deal on the APA was cut off. And the only thing that they were owed was their expenses. And so this court, the Virginia Supreme Court said, in the Lewis Gale case, torches interference does not lie when the party that's allegedly interfering has a statutory or contractual right to do so. I would submit to you that that's this case. This court can resolve this case on the improper methods ground alone. And just to tie it off, let me also mention, the sub Virginia Supreme Court and other states of Supreme courts across the country, Lewis Gale, the time in case we cite, have also said that when a statute, when the general assembly affirmatively in a statute, says what a party is owed in a certain circumstance, you don't then come in and put in common law claims that would contradict that statute. And here, the Virginia general assembly said, in 1569.1, when Ford exercises a right of first refusal, that's entirely valid, and what the dealer is fully protected, they have to get what they would have gotten, but what the would be buyer is owed is their expenses. And so to come in and say, we're going to impose a common law claim on top of that that contradicts that remedy and that allows them to seek unlimited expectancy damages. I think in addition to the improper methods ground is a approach that is foreclosed by the statutory scheme. If the court has no questions, I'll submit. Thank you. Thank you, Mr. Bro, Mr. White, you have some time, sir. I'm really succinct on this. You had asked me a hypothetical earlier. If they didn't properly, not in the facts in circumstances case, one could properly exercise a right of first refusal. You would also ask me about the rejection letter. The rejection letter is in the appendix of 183. And the last three words are, you're hereby terminated or rejected. So in fact, they did reject them

. And just to tie it off, let me also mention, the sub Virginia Supreme Court and other states of Supreme courts across the country, Lewis Gale, the time in case we cite, have also said that when a statute, when the general assembly affirmatively in a statute, says what a party is owed in a certain circumstance, you don't then come in and put in common law claims that would contradict that statute. And here, the Virginia general assembly said, in 1569.1, when Ford exercises a right of first refusal, that's entirely valid, and what the dealer is fully protected, they have to get what they would have gotten, but what the would be buyer is owed is their expenses. And so to come in and say, we're going to impose a common law claim on top of that that contradicts that remedy and that allows them to seek unlimited expectancy damages. I think in addition to the improper methods ground is a approach that is foreclosed by the statutory scheme. If the court has no questions, I'll submit. Thank you. Thank you, Mr. Bro, Mr. White, you have some time, sir. I'm really succinct on this. You had asked me a hypothetical earlier. If they didn't properly, not in the facts in circumstances case, one could properly exercise a right of first refusal. You would also ask me about the rejection letter. The rejection letter is in the appendix of 183. And the last three words are, you're hereby terminated or rejected. So in fact, they did reject them. They just rejected them on the grounds of the first right of refusal. So let me go to someplace council. Just... Because I think the Dunlap case opens up the factual issue as to whether or not it was a valid exercise of first right of refusal, whether they have an affirmative defense on their 7-69 to go forward with a torsion interference claim. So everything that council just told you about the use of the term valid, if you look at his brief page 21, first full paragraph line number six, he's referring to whether or not you have a claim and found valid referring to the first right of refusal. So part of the analysis is, was under these circumstances, the exercise of the first right of refusal valid and appropriate. I think that's a factual dispute. I think the defense of they had a privilege or a financial right is a fact issue. Judge Keenan, you asked before... You may be right in that regard that part of it is a legal analysis and part of it is fact, but if you don't properly exercise the first right of refusal, if I have an agreement for us to sell a house and Judge Gregory has a first right of refusal and he comes in and says he's stepping into the shoes of me to buy your house and then does something different than what was agreed upon. I don't think you have a valid exercise first right of refusal. And the point that council didn't emphasize is that in this transaction, it was proposed that 10% equity interest in an operating dealership. So the statute of 1569

. They just rejected them on the grounds of the first right of refusal. So let me go to someplace council. Just... Because I think the Dunlap case opens up the factual issue as to whether or not it was a valid exercise of first right of refusal, whether they have an affirmative defense on their 7-69 to go forward with a torsion interference claim. So everything that council just told you about the use of the term valid, if you look at his brief page 21, first full paragraph line number six, he's referring to whether or not you have a claim and found valid referring to the first right of refusal. So part of the analysis is, was under these circumstances, the exercise of the first right of refusal valid and appropriate. I think that's a factual dispute. I think the defense of they had a privilege or a financial right is a fact issue. Judge Keenan, you asked before... You may be right in that regard that part of it is a legal analysis and part of it is fact, but if you don't properly exercise the first right of refusal, if I have an agreement for us to sell a house and Judge Gregory has a first right of refusal and he comes in and says he's stepping into the shoes of me to buy your house and then does something different than what was agreed upon. I don't think you have a valid exercise first right of refusal. And the point that council didn't emphasize is that in this transaction, it was proposed that 10% equity interest in an operating dealership. So the statute of 1569.1, I'm not asserting this from Mr. Council, I'm using it as part of our claim. The consideration, what you bargain for must be the same or greater. This is an issue as it relates to us, not as it relates to Mr. Council because we had a contract where it was important for Mr. Council to remain an equity interest holder. Everything that council was telling you for the last four minutes, he talked about a valid exercise. So let me change it for a moment with my own hypothetical. Suppose Ford doesn't like short people like me and decides that every applicant that's short like me, they will exercise a first right of refusal and do something different with the dealership. This is a common law argument on this one. Could they do it? Being short isn't necessarily protected category but you could use the number of examples with protected categories whereby when they do that exercise it wouldn't be valid. So yes, when they step into the shoes of priority and the transaction, they're expected to exercise that first right of refusal. What did they do here? They did everything but that. They hammered at my client, they hammered at Mr. Council and they got a different deal, all the money. If you look at the internal documents, all the money was coming from Ford. They were behind this entire transaction of what they wanted to do

.1, I'm not asserting this from Mr. Council, I'm using it as part of our claim. The consideration, what you bargain for must be the same or greater. This is an issue as it relates to us, not as it relates to Mr. Council because we had a contract where it was important for Mr. Council to remain an equity interest holder. Everything that council was telling you for the last four minutes, he talked about a valid exercise. So let me change it for a moment with my own hypothetical. Suppose Ford doesn't like short people like me and decides that every applicant that's short like me, they will exercise a first right of refusal and do something different with the dealership. This is a common law argument on this one. Could they do it? Being short isn't necessarily protected category but you could use the number of examples with protected categories whereby when they do that exercise it wouldn't be valid. So yes, when they step into the shoes of priority and the transaction, they're expected to exercise that first right of refusal. What did they do here? They did everything but that. They hammered at my client, they hammered at Mr. Council and they got a different deal, all the money. If you look at the internal documents, all the money was coming from Ford. They were behind this entire transaction of what they wanted to do. And I'm suggesting to you and I'm arguing to you that you would ask me before there were four counts in the case. Count number four was a separate count from counts one, two and three and count four was over fees. They settled that matter at the district court level that doesn't obviate the other claims. Of course, unless you decide that it does. But I think the issue of standing in this case, both under the statute and the way that the case proceeded it was a 12B, I think it was 12B1 on the standing. But yet we had a hearing on it, we had discovery and then they came back with a summary judgment and then the master judge, I think it was Leonard Rode, a recommendation and report in which he adjudicated it on the standing issue even though they brought documents from outside the pleadings as part of their case. And we had all this evidence that was found in the case. And what's unusual, and I ask you when you consider it, what's unusual about this case, the facts and allegations in the complaint match up with the facts and evidence. You may disagree with me ultimately on this issue, but if you look at the facts and evidence, Ford did exactly what we did. And if they're entitled to do that, then they can step into every transaction for good, bad or nefarious reasons, exercise a first-red or a fusil and get away with it. I'm out of time, thank you. Thank you so much for your argument. We'll come down and greet Council and proceed to our next case. Thank you.

The Honorable, the Judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, oye, all persons having any manner or form of business for the Honorable, the United States Court of Appeals for the Fourth Circuit are admonished to draw now and give their attention for the court is now safe. God save the United States and this Honorable Court. May we see it? Mr. Weiss, will you ready? Good morning. My name is Brad Weiss. I represent the appellant in this case and if I could take 35 seconds to give you just a little bit of history of the individuals involved before I go into some of the issues, I think it might be helpful. Priority auto group is owned by a gentleman named Mr. Dennis Elmer. Mr. Elmer grew up in the area of Norfolk and Chesapeake and always wanted to be in the car business and eventually moved to Tyson's, worked in the car business and always wanted to come back here. He had an opportunity to purchase a franchise and from that developed a very large automotive group that was successful personally, financially and in serving the community in the area he gives back to the community. Mr. Council on the other hand was an individual whose family had owned a four dealership for about 50 years. Mr. Elmer had always gone by that four dealership in his youth and always wanted to be a four dealer. He had represented many other franchises. He had earned more wealth than he probably knew what he could do with but he wanted to be a four dealer. And for many years he would go visit Mr. Council at Kimlock Ford and say if you ever decided to sell, I want to buy that. All of this information is in the transcripts of the deposition of Mr. Council and Mr. Elmer. And one day Mr. Council said, I'm ready but I want to work with you. I want to be a part of the priority group that comes from his deposition transcript. And so a deal was struck in which Mr. Elmer through one of his companies would purchase the real estate as well as the stock. And Mr. Council would remain a 10% equity owner receiving distributions every year and had the right to assign it to a son if he chose to do so when he retired or passed away. Mr. Elmer was so excited that before the deal was completed he contacted Ford Motor Company because he knew many of the people at Ford they had worked at Toyota and other places. You'll see in the appendix 416 is an email from Mr. Elmer on July 6 of 2010 saying guys essentially and GALs. I'm going to do this Ford dealership and I look forward to being a great Ford dealership and as he testified in his deposition was prepared to put in new building spending approximately $10 million for Ford. The very next day there's an internal email from the corporate desnet which is named so kind or I think she got married and changed her name dated July 7th. That's at the appendix 415 and 416. And if you read it along with the other documents that were found in this case. It's an aha moment. We can implement our plan get rid of Kim Knock. We're not telling Mr. Elmer what we're doing. We're going to exercise the first right of refusal. Take this over. Transfer it to a company that has no assets and divided up amongst the competitors in the market. What's also most telling as we go through this story. You'll see it appendix 536 a diagram. It is a market representation report done by Ford in 2009. And in that report Kim Knock is showing the second best sales of cars, trucks and fleet vehicles in the second highest profit in the market area. So by September of 2010 Mr. Elmer has entered into an asset purchase agreement. Back on July 8th he sends in an application which is at the appendix 419 to 424. And on 424 you'll see a little note. I look forward to being a Ford dealer. That's what's his life dream. That was the daily work down. So now we come to the statute. We have 546.2 1569 333A in which under 3A I call it 3.5. There are 3.5 reasons in which a manufacturer under the statute is entitled to decline a dealer applicant who by statute by statute is granted standing. It says it right in the statute expressly. Not inferred, not something you have to look at. It says it right there. And the three grounds for rejecting an applicant are I believe it was your financial status, your moral character and maybe your customer standing, something along those lines. The half your honors and I guess the crux of part of the issue in this case is the at the end of 426.2 1569 subsection 3A it says notwithstanding the forgoing a manufacturer may exercise their first writer of Fuse on accordance with 1569.1. And so I think at this point this is in part where I think the magistrate in his reporting recommendation I think missed something. So I see this as two trains going down a track or a mixed metaphor is two bundles of rights. On the one hand Mr. Council has certain rights as the selling dealer. Ones are the contracts and ones of the statute. Mr. Elmer priority has a second set of rights. Some of those are common law and some of those are statutes. So forward was obligated either to reject or refuse him. Testimony if you ask me for citation I'll give it to you. Absolutely great reputation. They wrote them a letter they wrote emails. He was a great candidate. So that wasn't an issue they didn't refuse him for one two or three. Their contention in a letter was were reject you not because of that but because we're exercising a first writer of refusal and their position is not really rejecting you because we're doing that. No not with standing reasons for rejection. Now having known as you said we are now exercising the option you said we rejected you because we don't but it's not rejecting. Forward is taking the option which the statute says not with standing not having those reasons for objection you agree that they can exercise the option correct. I have the actual letter they wrote if you want to put on some of the statute that's not rejection of the statute that's taking an option. That's why I characterized it judge as three and a half so the three are your half is not consistent with the statute it said not with standing those three grounds this is another option but it's not a rejection. I don't disagree with you it's not it's not a rejection in that form under one two and three under three a it is an alternative that's why I call it a half however and even counsel admits this in a brief. The opposition brief page twenty one paragraph first paragraph line number six that in exercising the first writer of refusal it must be found valid. And so here's where I think the intersection of these issues sort of intervene so to speak and counsel's position and the court's position was that we had no standing now under forty six point two fifteen sixty nine three and three a we clearly had standing to bring a claim. And the issue then becomes did they properly exercise a right of first refusal so in this case we have contended and what is I think very interesting is the allegations in our lawsuit. I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that's why I think that both of these Drug and Candidates study in these vorctorate districts showed up recently Invisible gimbal, this isn't the benefit of none of these 651 imagine if one of these 556 shouldn't have been successful. says the applicant who is not successful gets attorneys fees. That's one piece of the puzzle. Then we go back and look at the consideration in the first paragraph. It says, that count, which was count 4 was resolved between the parties. Yes, sir. That has been done. If you look at the first pair, if you've been paid what the statute provides, what's left for you? Our common law claim of torsional interference, which has not been resolved. And that is that they never had an intent. In a first-right refusal in looking at Virginia case law on it, you step into the shoes. If I have a contract, you step into my shoes and you execute on it. That is not what they did. What they did was set up a scenario where they intended to assign it to their assigned e to break up the dealership, close the point, and solve the assets to competitors. How did they do it? They wrote a letter on April 21, 2011. There was sign e with a draft lawsuit seeking an injunction against my client and a claim against Mr. Counsel, Pendix 281-299. What else did they do? The attorney for DAC wrote an email, Pendix 304, making threats. They were not acting in good faith and in fair dealing. And what did Miss O'Connor say in her deposition when I grilled her? She could not recall if she ever threatened my client, but when I asked her, do you deny it? Meaning, do you deny that you've told him, if you raise a fuss, you're not going to get a franchise now in the future? They all go to the execution of that first-right refusal because the asset purchase agreement that was a part of this transaction was completely, totally changed by the end of the day with Mr. Counsel. And indeed, they required him to enter into a settlement and release agreement. How does that relate to me, my client? Well, if you step into my shoes, then you must execute on that transaction the same. The statute makes one adjustment. Mr. Washington, I asked you a question. Yes, sir. Do you think Ford could say hypothetically I'm not these facts, perhaps. Say, all right, we're not rejecting as they did. We are rejecting the applicant, but we are exercising our option to purchase for the sole purpose of shutting this dealership down. Would you have a claim then? It's all they did. No nefarious letters, nothing but you said, just said, all right, we are exercising our option because we're going to shut this dealership down. They have a statutory problem. And that's, 1569 subsection five is the procedure for properly terminating a dealer. And that's within their franchise agreement. Right. They have a right to terminate a deal within their franchise agreement. And it's in the context of the agreement between the franchisee and franchisee. Yeah, if they wanted to terminate the dealer and we were not a party to a contract, I'd have no rights whatsoever. No, no, I'm giving you my scenario. You've done everything, Mr. Elmer's done everything he did, which is, as you said, was his forehood dream to own it, all those things, all those things. The only difference is Ford didn't mince around at all and said, our option, because we want to shut it down, period, then they proceed consistent with their agreement, franchise agreement, to do that, would you have a claim? That's the question. Under the statute, I think the answer would be yes. Oh, if you're claim. Torsches interference. It would not be. It would not be. We had a contract with Mr. Counsel, a binding contract, which in part required a 10% equity interest. You knew that would be subject to the agreement that the dealer had with the franchise, wasn't right? They could certainly turn us down. I mean, they would have that right. And that goes to an affirmative defense on the restatement 769. They turned you down by exercising the option to purchase. The dealership. They did that. And they said, we were objective. Is it just to shut it down? That's my question. Well, what would be the torches interference there in the confounds of their agreement, aren't they? Sure. All right. We had a contract, an asset purchase agreement, the contemplative, Mr. Counsel, four important reasons would remain a shareholder in an ongoing dealership. OK. And in lieu of terminating the dealer or the franchise agreement, in accordance with 1569 subsection five, if Ford chose to close the dealership down, I think that would be a problem. If they chose to sign it to someone else properly and run it as a dealership and give the 10% equity, then we wouldn't have a claim in that regard. We said, as a court, we don't sit as an embuzzment for business dealers deals and whether or not they're good or bad. We try to construe the law. And as you say, common law, perhaps. But what would be the grab of one of your common law torches interference or restatement of torches? So what would it be? If there were no improper means or methods asserted, you'd have to have an improper motive. We have an assertive and improper motive. Would you see that shutting the dealership down is not an improper motive? I have no idea if it's an improper motive. Because I'm not focused on improper motive. I'm focused on improper means and methods. No, you have to be focused because that's my hypothetical. That's my question. Would that constitute appropriate? Yeah, would that be an inappropriate motive? I'm not sure I know the answer to that. That's a very important question, I think, for you. All right. Your time is up unless my colleagues have heard. I'll think about it on the reply if I may. So why don't you ask me just one thing before you sit down? You've been going back and forth between asserting a statutory claim and a common law claim. Are you saying that you have both claims still standing? Well, they're not standing because they were dismissed, but I was sure that yes. Both claims still be forced in this appeal? Yes. OK, because I had understood your answer, perhaps, to just judge H.E.'s question that once you were paid your fees that you were relying on torsious interference with contract, which would be a common law claim. Yes. And so I just wanted to clarify, you're still asserting your statutory claim as well. Yes, I don't think getting paid relieves them of the obligations completely under the statute. I just wanted to make sure that you were still in the contract for that. Thank you. Mr. Weiss, Mr. Forella. May it please the court, Dominic Forella, on behalf of Ford Motor Company. Let me begin, Judge Gregory, where you left off, which was to ask opposing counsel. Let's say Ford exercises a right-of-first refusal, buys the dealership, and then wants to shut the dealership down. Is there anything wrong with that? The answer to that is absolutely not. Ford has a statutory and contractual right, of course, to buy the dealership. That's the whole purpose of the right-of-first refusal. The Virginia statute recognizes as much. And once Ford or its designate owns the dealership, they of course have the perfect right. It's their business to shut it down if they're so inclined. So the flavor that runs through my opponent's brief, that somehow there's something nefarious about Ford buying the dealership, or its designate buying the dealership, simply has no basis in law. So let me start if I might with the statutory claim. Well, this court, this case, is decided on the pleadings anyway, wasn't it? That's right. But even at the pleading stage, the extended factual back that. Judge Keenan, I completely agree that not only do you not need to, but in fact, I don't think it's available to the court. This court said in Finley lines that when a case is decided on the pleadings, even when materials outside the pleadings are attached to the pleadings, which in this case, and even material is not referenced in the pleadings, when the district court doesn't use those, doesn't rely on them or look at them, and deciding a 12C motion, you decided on a normal 12C, 12B6 standard. And that's this case. So let me turn if I might to the statutory claim first. Judge A.G., I think you asked my opponent, if they paid you your expenses, which is what sub four of 1569.1 requires, what's left of this case for you? And he did say, although he tried to attract the concession to Judge Keenan, he did say just my common law claim. And I think that's right. Because once Ford invokes its right of first refusal, we're inside 1569.1. And 1569.1 sets forth particular remedies if Ford does not properly follow through on all its promises in the right of first refusal. And those remedies are, number one, if Ford doesn't pay the dealership, everything that it would have gotten under the APA, the dealership, of course, could sue Ford and say, pay me what I'm owed. The dealership here didn't do that. The dealership is not in this court. They're not a party. They never sued. The second remedy is that Ford isn't must pay. They must agree to pay and then pay. They would be buyer its expenses. And there's no dispute in this case that that occurred. And so I don't see what's left of the statutory claim for my opponent. Let's look at that a little bit. Sure. Of course, that's a very clear claim. But say, the three grounds for rejection, as it's undisputed here, are not mad and not an issue. But in further than the idea of protecting people in the shoes of the proposed purchaser, wouldn't it be a problem if you did a in-run because it said notwithstanding not having those three reasons, you could have the option. But the statute sets forth that you have to match, don't you? So if you could just do anything, and suppose for example, it's not just the end, for example. And then if you said, well, listen, I really don't want Mr. Elmer to find this thing, I'm gonna give you half of what he's giving you. And I want you to take it. And if you wanna deal with Ford for now on, you should take this deal. You think that they would be statutorily out of the mix just because you had the option and you did something like that. I think that's just a wise when he refers to the faries. You think they would have no statutor or rights to say no, in fact, you have did a in-round on them and had not exercised that notwithstanding provision of the statute properly. So the answer to that is that there is someone who would be able to bring a claim in that circumstance and that someone is Kim Knock, the dealer. The statute says they have the absolute right once Ford invokes the right of first refusal to get paid the same or greater than they would have gotten under the APA. And since they're getting out of the business anyway, they're either gonna sell to the buyer, they're gonna sell the Ford. I can't imagine why they would not in that case enforce their rights and say, pay me what I'm owed. And of course, in that case, you don't need to look at any of this, but factually speaking, that's exactly what happened. Ford said, here's what I think your deal is worth. They came back and said, no, no, it's worth much more than that. And after extended negotiations and back and forth, threats of litigation, they agreed on a number. I guess the problem would be if the saleman may have a right of action perhaps, but it would be cured by just paying counsel the rest of the money is owed, even that would be the end of that. And that's actually Judge Gregor, I think really gets to the heart of this because what we have here is a situation where if anyone is owed anything, and it's our position that Ford paid Mr. Counsel, exactly what he deserved in Mr. Counsel, of course, accepted the deal. But if anyone's owed anything, Mr. Counsel would be owed something. And yet here we have priority in court saying, let's assume for a second, I'll make up a fact. Let's assume that at the end of the day, if all the facts here got adjudicated, and some jury decided, hey, Ford should have paid Mr. Counsel $500,000 more than he got. Now we don't think that's so, but let's say they did. Why would it be in that situation that priority could come in and ask for $15 million? That doesn't make any sense to me. And I think if I could, if I could propose an alternative factual situation for the court, just to illustrate how this statutory claim doesn't make sense. Let's assume that Ford exercised the right to first refusal, and everyone agrees that they paid Mr. Counsel everything that he deserved, same or greater consideration. And let's assume that Ford said to Ms. to priority, sure will pay you your expenses as the statute requires. And let's say that Ford said, here's your, you know, your expenses were $100,000, here's your $100,000. And priority said no, we're owed $101,000, all right? Under that scenario, under my opponent's theory of the statute, that would be an improper exercise of the right to first refusal, and priority could sue not for $1,000 under $15,69.1, but $15 million, under $15,69.3 a. That just doesn't make sense. The statute provides the remedies to which they're entitled and the remedy is their expenses. If I might turn to the torches interference claim, my opponent concedes that improper methods need to be shown here. They conceded it both today at argument and in their brief. And the fact of the matter is, they simply cannot show improper methods because on the face of their complaint, they say, Ford had a statutory right and a contractual right to exercise the right of first refusal. As soon as Ford exercised that right of first refusal, priorities ability to close on this deal on the APA was cut off. And the only thing that they were owed was their expenses. And so this court, the Virginia Supreme Court said, in the Lewis Gale case, torches interference does not lie when the party that's allegedly interfering has a statutory or contractual right to do so. I would submit to you that that's this case. This court can resolve this case on the improper methods ground alone. And just to tie it off, let me also mention, the sub Virginia Supreme Court and other states of Supreme courts across the country, Lewis Gale, the time in case we cite, have also said that when a statute, when the general assembly affirmatively in a statute, says what a party is owed in a certain circumstance, you don't then come in and put in common law claims that would contradict that statute. And here, the Virginia general assembly said, in 1569.1, when Ford exercises a right of first refusal, that's entirely valid, and what the dealer is fully protected, they have to get what they would have gotten, but what the would be buyer is owed is their expenses. And so to come in and say, we're going to impose a common law claim on top of that that contradicts that remedy and that allows them to seek unlimited expectancy damages. I think in addition to the improper methods ground is a approach that is foreclosed by the statutory scheme. If the court has no questions, I'll submit. Thank you. Thank you, Mr. Bro, Mr. White, you have some time, sir. I'm really succinct on this. You had asked me a hypothetical earlier. If they didn't properly, not in the facts in circumstances case, one could properly exercise a right of first refusal. You would also ask me about the rejection letter. The rejection letter is in the appendix of 183. And the last three words are, you're hereby terminated or rejected. So in fact, they did reject them. They just rejected them on the grounds of the first right of refusal. So let me go to someplace council. Just... Because I think the Dunlap case opens up the factual issue as to whether or not it was a valid exercise of first right of refusal, whether they have an affirmative defense on their 7-69 to go forward with a torsion interference claim. So everything that council just told you about the use of the term valid, if you look at his brief page 21, first full paragraph line number six, he's referring to whether or not you have a claim and found valid referring to the first right of refusal. So part of the analysis is, was under these circumstances, the exercise of the first right of refusal valid and appropriate. I think that's a factual dispute. I think the defense of they had a privilege or a financial right is a fact issue. Judge Keenan, you asked before... You may be right in that regard that part of it is a legal analysis and part of it is fact, but if you don't properly exercise the first right of refusal, if I have an agreement for us to sell a house and Judge Gregory has a first right of refusal and he comes in and says he's stepping into the shoes of me to buy your house and then does something different than what was agreed upon. I don't think you have a valid exercise first right of refusal. And the point that council didn't emphasize is that in this transaction, it was proposed that 10% equity interest in an operating dealership. So the statute of 1569.1, I'm not asserting this from Mr. Council, I'm using it as part of our claim. The consideration, what you bargain for must be the same or greater. This is an issue as it relates to us, not as it relates to Mr. Council because we had a contract where it was important for Mr. Council to remain an equity interest holder. Everything that council was telling you for the last four minutes, he talked about a valid exercise. So let me change it for a moment with my own hypothetical. Suppose Ford doesn't like short people like me and decides that every applicant that's short like me, they will exercise a first right of refusal and do something different with the dealership. This is a common law argument on this one. Could they do it? Being short isn't necessarily protected category but you could use the number of examples with protected categories whereby when they do that exercise it wouldn't be valid. So yes, when they step into the shoes of priority and the transaction, they're expected to exercise that first right of refusal. What did they do here? They did everything but that. They hammered at my client, they hammered at Mr. Council and they got a different deal, all the money. If you look at the internal documents, all the money was coming from Ford. They were behind this entire transaction of what they wanted to do. And I'm suggesting to you and I'm arguing to you that you would ask me before there were four counts in the case. Count number four was a separate count from counts one, two and three and count four was over fees. They settled that matter at the district court level that doesn't obviate the other claims. Of course, unless you decide that it does. But I think the issue of standing in this case, both under the statute and the way that the case proceeded it was a 12B, I think it was 12B1 on the standing. But yet we had a hearing on it, we had discovery and then they came back with a summary judgment and then the master judge, I think it was Leonard Rode, a recommendation and report in which he adjudicated it on the standing issue even though they brought documents from outside the pleadings as part of their case. And we had all this evidence that was found in the case. And what's unusual, and I ask you when you consider it, what's unusual about this case, the facts and allegations in the complaint match up with the facts and evidence. You may disagree with me ultimately on this issue, but if you look at the facts and evidence, Ford did exactly what we did. And if they're entitled to do that, then they can step into every transaction for good, bad or nefarious reasons, exercise a first-red or a fusil and get away with it. I'm out of time, thank you. Thank you so much for your argument. We'll come down and greet Council and proceed to our next case. Thank you