Motion pursuant to CPLR 3211 by the defendants Marsh & McClennan Companies, Inc., Marsh, Inc., for an order dismissing the second amended complaint insofar as asserted against them.

Motion pursuant to CPLR 3211 by the defendant Jeffery Greenberg for an order dismissing the second amended complaint insofar as asserted against him.

Motion by the plaintiffs Frank Lee, et. al., for an order consolidating the above-captioned matter with a related action pending under Index No. 06-016866 pursuant to a joint stipulation, dated July 30, 2007.

The plaintiff Frank Lee, the self-described, patriarch of the Lee family, acquired over the years some 2 million shares in the defendant Marsh & McLennan Companies, Inc., et. al [collectively "Marsh"]. Lee obtained his shares primarily from his father, who spent his career working for Marsh and its corporate predecessors (Cmplt.,¶¶ 8-9).

Subsequently, Lee dispersed his shares to various family members, trusts and other entities, all of whom, it is alleged, agreed to abide by his decisions and directives with respect to [*2]the sale or disposition of their Marsh & McClennan stock (Cmplt.,¶¶ 10-11).

The plaintiffs advise that their Marsh stock collectively comprised some 85-90% of the "total net worth of the Lee Family" and was valued in early 2004 at approximately $93 million (Cmplt.,¶¶ 1,14).

According to the plaintiffs, Marsh, a Delaware corporation, is the largest insurance broker in the United States. Its stock is publicly traded on the New York Stock Exchange and it allegedly possesses "consolidated annual revenues of approximately $11 billion" (Cmplt.,¶¶ 12-13).

Codefendant Jeffrey Greenberg, whom the plaintiffs describe as the "consummate insurance industry insider," was Marsh's CEO from 1999 until October of 2004, when he resigned (Cmplt.,¶¶ 13-14; 69-70).

At some point in early 2004, Lee claims that he became aware that the then-New York State Attorney General, Eliot Spitzer, was conducting an investigation into Marsh's business practices.

The Spitzer inquiry centered on whether Marsh was improperly channeling insurance business to carriers who were paying Marsh lucrative payments or kickbacks , known as "contingent commissions" made pursuant to so-called "market service agreements" (Cmplt.,¶¶ 14-16; People v Marsh & McClennan Companies, Inc., Marsh, Inc., ¶¶ 7-11).

In light of the investigation, Lee claims that in May of 2004, he informed the various family members and other holders of Marsh stock that he "intended to go forward with a substantial sale of Marsh stocks to protect the family's assets" (Cmplt.,¶ 14).

To this end, Lee claims that he scheduled a private meeting with Greenberg at Marsh's New York headquarters in June of 2004 to discuss the investigation. The June meeting was postponed, however, and ultimately took place in late September of 2004 (Cmplt.,¶¶ 13-14).

At the September, 2004 meeting, which Lee attended with his son, Jack, Lee informed Greenberg that he was very concerned about the Spitzer investigation, in response to which, the plaintiffs claim, Greenberg made a number of false and fraudulent statements (Cmplt.,¶¶ 16-17).

In particular, the plaintiffs claim that Greenberg advised Lee: that there was "nothing there" (referencing the investigation); that no one from Marsh had heard from Spitzer's office in months; that Marsh had been cleared of wrongdoing by the New York State Insurance Department; that a recently purchased division of Marsh was actually assisting Spitzer in combating fraud; that no criminal acts had been committed; and that the "worst possible result" flowing from the Spitzer probe would be that Marsh might be required to change its fee format, which would not produce any revenue losses to the company (Cmplt.,¶¶ 16-17).

The plaintiffs contend that subsequent events, only a month and a half later, demonstrated that these representations were false when made. The Spitzer inquiry uncovered a "vast illegal scheme of contingency commissions and bid rigging" that generated some 50% of Marsh's total income in the preceding year. The plaintiffs advise that the Insurance Department issued an order scheduling a hearing to consider whether regulatory action should not be taken against Marsh; several Marsh executives were accused and convicted of crimes in connection with the scheme; and that Marsh was ultimately ordered to pay a $850 million fine and faces "massive class action" litigation and potentially crushing civil liability (Cmplt.,¶¶ 16, 30-31, 35-36; 38-39, 42; 50).

Moreover, the plaintiffs further assert that Greenberg knew that his statements were false [*3]when they were made and that the plaintiffs would rely on them, but that he intentionally made them anyway to dissuade the plaintiffs from selling their holdings in Marsh (Cmplt.,¶¶ 16; 46-47, 49; 88-89, 91-92; 96, 102).

The plaintiffs claim that in reliance upon Greenberg's statements, they did, in fact, "hold" their shares and/or refrain from selling them until after the Spitzer complaint was finally made public in mid-October of 2004 (Cmplt.,¶¶ 2-3, 102).

After the Spitzer complaint was filed and the allegedly illegal practices were publicly disclosed, stock values fell and the plaintiffs ultimately sold their shares at depressed prices ranging from $24.75 to $34.15 per share which yielded an aggregate price of only $54,759.101.00 (Cmplt.,¶ 98).

The plaintiffs contend that if they had sold their shares on or before September 22, 2004 when the Greenberg meeting took place they would have obtained $45.75 per share (Cmplt.,¶¶ 6, 97-98).

According to the plaintiffs, the difference in price, "is the damage directly caused ... by Defendant Greenberg's representations" (Cmplt.,¶ 98).

Thereafter, the plaintiffs commenced what the defendants describe as a "holder action." Notably, a "holder" action has been described as "an action in which the plaintiffs allege that material misrepresentations or omissions caused them to retain ownership of securities that they acquired prior to the alleged wrongdoing" (In re WorldCom, Inc. Securities Litigation, 336 F.Supp.2d 310, 318-319 [S.D.NY 2004] see also, Hunt v. Enzo Biochem, Inc., 471 F.Supp.2d 390, 410, fn 129 [S.D.NY 2006]).

The plaintiffs' complaint sets forth separately pleaded causes of action

sounding in breach of fiduciary duty, negligent misrepresentation and common law fraud (Cmplt.,¶¶ 99-118).

The defendants Greenberg and Marsh now separately move to dismiss pursuant to CPLR 3211[a][7], primarily arguing, inter alia, that: (1) the plaintiffs' holder action is barred and/or preempted by federal law and public policy inasmuch as their claims are based in reality on Greenberg's refusal to selectively disclose non-public, inside information; (2) the plaintiffs' claims are exclusively derivative in nature, and accordingly, since no pre-action demand was made, they lack standing to maintain the action; and (3) the plaintiffs have not sustained cognizable or recoverable damage and/or the Delaware Courts do not (or would not) recognize holder actions upon the facts presented at bar.

In opposition to the defendants' applications, the plaintiffs claim that they are not arguing that Greenberg should have selectively disclosed to them the "truth" about Marsh's improper conduct. They concede he could not have lawfully done that, i.e., they deny that they are arguing that Greenberg should have revealed "insider information" to them which other shareholders, lacking the perceived clout and influence to obtain a personal interview, could not have obtained (cf., Shirvanian v. DeFrates, ___SW2d___, 2004 Texas App. Lexis 182 at 30, fn 8 [Texas Court of Appeals, Houston 14th District 2004], withdrawn and superseded on rehearing, Shirvanian v. DeFrates, 161 SW3d 102 [Texas Court of Appeals, Houston 14th District 2004]).

Rather, they argue that their claims are actually founded on the distinct theory that Greenberg at least should have refrained from affirmatively deceiving them a duty which he allegedly breached when he falsely assured Lee that the investigation was essentially harmless and that there was "nothing" to it (Pltffs' Brief at 3-4; Cmplt.,¶¶ 21, 97-98). [*4]

Further, that if Greenberg had "simply refused to discuss the topic" or said nothing, then the plaintiffs "would have immediately sold their shares" (Pltffs' Brief at 4, 7, 32; Cmplt.,¶ 97). The defendants' motions should be granted.

It is settled that on a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must accept as true, the facts "alleged in the complaint and submissions in opposition to the motion, and accord plaintiffs the benefit of every possible favorable inference,"determining only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 414 [2001] see, Leon v. Martinez, 84 NY2d 83, 87-88 [1994]).

Of course allegations "consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled" to favorable consideration (Morris v. Morris, 306 AD2d 449 451 see, Maas v. Cornell University, 94 NY2d 87, 91 [1999]).

With respect to defendants claim that the action is exclusively derivative, the parties agree that Delaware law is applicable since the "law of the state of incorporation governs not only the substantive elements of such claims, but also whether such claims may be brought directly or derivatively, and whether the plaintiff has standing to assert a claim"(Finkelstein v. Warner Music Group Inc., 32 AD3d 344, 345 see also, Rimawi v. Atkins, 42 AD3d 799 see, In re Enron Corp. Securities, Derivative & ""ERISA"" Litigation, ___F.Supp2d___, 2007 WL 789141 (Slip Opn. at 5) [S.D.Texas 2007]).

The Delaware Supreme Court has recently observed that "whether a claim is derivative or direct depends solely upon two questions: (1) who suffered the alleged harm (the corporation or the suing stockholders individually); and (2) who would receive the benefit of the recovery or other remedy (the corporation or the stockholders, individually)?"(Gentile v. Rossette, 906 A2d 91, 97 [Delaware Supreme Court 2006], quoting from, Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A2d 1031, 1033 [Delaware Supreme Court 2004]; Kramer v. Western Pacific Industries, Inc., 546 A2d 348, 351-352 [Delaware Supreme Court 1988]; Nemazee v. Premier Purchasing Partners, L.P., 24 AD3d 196, 197 see generally, Parnes v. Bally Entertainment Corp.,722 A2d 1243, 1245[Delaware Supreme Court,1999]; Grimes v. Donald, 673 A2d 1207, 1213-1214 [Delaware Supreme Court 1996]).

In Tooley v. Donaldson, Lufkin & Jenrette, Inc., supra, a recent leading case, the Delaware Supreme Court further explained that "a court should look to the nature of the wrong and to whom the relief should go. The stockholder's claimed direct injury must be independent of any alleged injury to the corporation. The stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation"(Tooley v. Donaldson, Lufkin & Jenrette, Inc., supra, at 1039 cf., Shirvanian v. DeFrates, supra, 161 SW3d at 110; Smith v. Waste Management, Inc., 407 F.3d 381, 385 [5th Cir. 2005]). The analysis must be based "solely" on the foregoing criteria (Tooley v. Donaldson, Lufkin & Jenrette, Inc., supra, at 1035)

Stated affirmatively, to make out a "direct claim, the shareholder must allege either an injury that is different from what is suffered by other shareholders or one that involves a contractual right of shareholders that is independent of the corporation's rights" (Manzo v. Rite Aid Corp., ___A2d___, 2002 WL 31926606, [Delaware Chancery Court 2002], aff'd for reasons stated, 825 A2d 239 [Delaware Supreme Court 2003] see, Aboushanab v. Janay, [*5]___F.Supp2d___, 2007 WL 2789511 (Slip Opn at 6) [S.D.NY 2007]).

Notably, under Delaware law,"mismanagement which depress[ ] the value of stock [alleges] a wrong to the corporation; i.e., the stockholders collectively, to be enforced by a derivative action'" (Kramer v. Western Pacific Industries, Inc., supra, 546 at 353, quoting from, Bokat v. Getty Oil Co., 262 A2d 246, 249 [Delaware Supreme Court 1970]). The wrong is "entirely derivative" in such a case, since "[a]ny devaluation of stock is shared collectively by all the shareholders, rather than independently by the plaintiff or any other individual shareholder" (Kramer v. Western Pacific Industries, Inc., supra, at 353).

Claims founded upon the diminished value of stock "are not normally regarded as direct, because any dilution in value of the corporation's stock is merely the unavoidable result (from an accounting standpoint) of the reduction in the value of the entire corporate entity, of which each share of equity represents an equal fraction" (Gentile v. Rossette, supra, at 99 see also, Oliver v. Boston University,___A2d___, 2006 WL 1064169 (Slip Opn., at 16)[Delaware Chancery Court 2006]).

On the other hand, there are limited circumstances where "the same set of facts can give rise both to a direct claim and a derivative claim" (Grimes v. Donald, supra, at 1213 see, Gentile v. Rossette, supra, at 100).

However, it is settled that a "claim is not direct' simply because it is pleaded that way" since a plaintiff's classification of the suit is not binding (Dieterich v. Harrer, 857 A2d 1017, 1027 [Delaware Chancery Court 2004]). Rather, Courts will "independently examine the nature of the wrong alleged and any potential relief to make its own determination of the suit's classification" (Tooley v. Donaldson, Lufkin & Jenrette, Inc., supra, at 1035).

Upon applying these principles to the facts presented, the Court finds that the subject action is derivative in nature and subject to dismissal.

It is clear that the underlying, causative factor which actually created the decrease in stock value was alleged corporate mismanagement and the ensuing public investigation by Attorney General Spitzer.

Specifically, the key negative consequence which resulted decreased stock prices clearly and ultimately affected all Marsh shareholders in essentially the same manner; the decrease in stock valueswas an injurycollectively endured "by all the shareholders, rather than independently by the plaintiff[s] or any other individual shareholder"(Kramer v. Western Pacific Industries, Inc., supra, at 353 cf., Smith v. Waste Management, Inc., supra, at 384-385; Furst v. Feinberg, 54 Fed.Appx. 94, 99-100 [3rd Cir. 2002]; In re Enron Corp. Securities, Derivative & ""ERISA"" Litigation, supra, 2007 WL 789141; Shirvanian v. DeFrates, supra, 161 SW3d at 109).

Accordingly, the plaintiff here cannot prevail "without showing an injury to the corporation" (Tooley v. Donaldson, Lufkin & Jenrette, Inc., supra, at 1039); namely, the injury to Marsh which also occurred as result of very same corporate mismanagement and the public disclosure of those improper practices in mid- October, 2004 (Shirvanian v. DeFrates, supra; Smith v. Waste Management, Inc., supra, at 385).

As the Fifth Circuit has stated in analogous circumstances, "[t]he harm that befell [holder plaintiff] * * * the drop in share prices caused by untimely disclosure of unfavorable financial data was a harm that befell all * * * stockholders equally. Stated differently, the misconduct alleged by * * * the [plaintiff] did not injure * * * [him] * * * or any other shareholders directly, [*6]but instead only injured them indirectly as a result of their ownership of Waste Management shares"(Smith v. Waste Management, Inc., supra, at 385 see also Shirvanian v. DeFrates, supra).

The strained assertion that the September, Greenberg meeting in some sense created a direct, injury-causing event is disingenuous and does not alter this underlying fundamental conclusion.

Notwithstanding the plaintiffs' claims to the contrary, the linchpin of their theory, despite being creatively framed, is that they were injured by corporate mismanagement which, upon disclosure, caused a diminution in the value of the corporation's stock which affected all shareholders (e.g. Smith v. Waste Management, Inc., supra; Arnlund v. Deloitte & Touche LLP, 199 F.Supp.2d 461, 488 [E.D.Va. 2002]; Crocker v. FDIC, 826 F.2d 347, 351-352 [5th Cir.1987]; Arent v. Distribution Sciences, Inc., 975 F.2d 1370, 1374 [8th Cir. 1992]).

And, to the extent that the plaintiffs were independently assured that all was well, or were "deprived of accurate information upon which to base investment decisions" (Manzo v. Rite Aid Corp., supra, at 5), they essentially received information functionally similar to that currently available to all Marsh shareholders from whom the truth had also been withheld at that juncture and who therefore ultimately suffered the same type of injury sustained by the plaintiffs(Shirvanian v. DeFrates, supra cf., Arent v. Distribution Sciences, Inc., supra see also, Manzo v. Rite Aid Corp., supra).

Additionally the Court is not persuaded by the disingenuous assertion that the plaintiffs were not seeking inside information by scheduling the private meeting with Greenberg.

Of course, "[i]f the [plaintiffs] had received ... [inside] information and sold their stock before the public was made aware [of it], such a profit would have resulted from insider trading in violation of the securities laws"(Crocker v. FDIC, supra, at 351 n. 6 see also, Chanoff v. United States Surgical Corp., 857 F.Supp.1011, 1017-1018 [D.Conn.1994], aff'd, 31 F.3d 66 [2nd Cir.1994] cf., Arent v. Distribution Sciences, Inc., supra, at 1374).

The record supports the inference that the plaintiffs delayed any contemplated sale until the private, "Greenberg" meeting took place, precisely because they hoped to obtain presumably truthful, and thus selectively disclosed, information relating to the investigation and Marsh's internal practices (Marsh Reply Brief at 4). The plaintiffs themselves have effectively suggested that they were entitled to trade on implicitly communicated information which a Greenberg "non-response" would have conveyed.

Indeed, a key component of their reliance and damage theories is the hindsight assertion that if only Greenberg had "simply refused to discuss the topic" or said nothing, then Lee "would have immediately sold" the shares. That sale presumably would have been based on the unstated but implicit inference to be drawn by the listener regarding the "true" state of Marsh's affairs, i.e., that damaging, but non-public, information concerning the investigation existed (Pltffs' Brief at 4, 7, 32; Cmplt.,¶ 97).

Courts have generally looked with disfavor upon artificially framed reliance and damages theories by which shareholders attempt to exploit, solely for themselves, the difference between "inflated" pre-disclosure stock prices and the significantly lower values which later exist once the damaging disclosures have finally been made to market in general (see, e.g., Arnlund v. Deloitte & Touche LLP, supra, at 487-488; Arent v. Distribution Sciences, Inc., supra, at 1374; Crocker v. Federal Deposit Ins. Corp., supra, at 351).

These courts have reasoned, in general that "a plaintiff's damages in holder' cases arise, [*7]not from misrepresentations, but from the eventual disclosure of accurate information" and that "if the omitted information had been [timely] disclosed, then there would have been no market for the stock at an inflated price and no opportunity for plaintiffs to make the profit they seek to achieve through their claim for damages in this lawsuit"(In re WorldCom, Inc. Securities Litigation ,___F.Supp.2d___, 2006 WL 728518 at 6 [S.D.N.Y.2006] see also, In re WorldCom, Inc. Securities Litigation, supra, 336 F.Supp.2d, at 320; Crocker v. Federal Deposit Ins. Corp., supra, at 351; Arnlund v. Deloitte & Touche LLP, supra, at 487-488; In re Enron Corp. Securities, Derivative & ""ERISA,'' supra, 2007 WL 789141, Slip Opn at 14 see, WM High Yield Fund v. O'Hanlon, ___F.Supp2d___,2005 WL 1017811, Slip Opn, 13-14 [E.D.Pa. 2005]).

The Court agrees that, upon the facts presented here, the plaintiffs have not shown why they should be entitled to recover damages flowing from their inability to trade on the differential between the "inflated," pre-disclosure prices existing in September of 2004, and the depressed values later prevailing in mid-October, when the improper practices were finally disclosed to the public (Crocker v. FDIC, supra).

Even assuming that the plaintiffs' complaint could be construed as advancing a direct claim, the Court finds that the attenuated theories advanced fall short of adequately demonstrating reliance in accord with the more exacting requirements uniformly required by Courts which have authorized so-called "holder" actions (e.g., Small v. Fritz Companies, Inc., supra, 65 P3d 1255, 30 Cal.4th 167, 175; Hunt v. Enzo Biochem, Inc., supra, 471 F.Supp.2d at 411-413; Shirvanian v. DeFrates, supra; In re WorldCom, Inc. Securities Litigation, supra, 336 F.Supp2d, at 322-23; Rogers v. Cisco Systems, Inc., 268 F.Supp.2d 1305, 1313-1314 [N.D.Fla. 2003]; In re Enron Corp. Securities, Derivative & ""ERISA',' 490 F.Supp.2d 784, 819-820 [S.D. Tex. 2007]; WM High Yield Fund v. O'Hanlon, supra).

The seminal "holder" action case, Blue Chip Stamps v. Manor Drug Stores, (421 US 723 [1975]), was decided by the United States Supreme Court in 1975, and reaffirmed prior holdings under federal law to the effect that only actual "purchasers" or "sellers" of securities may maintain a private civil action under § 10(b) and Rule 10b-5 (Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463-64 [2nd Cir. 1952] see generally, Cowin v. Bresler, supra, 741 F.2d 410, 424-425 [D.C. Cir. 1984] see also, U.S. v. O'Hagan, 521 US 642, 664-665 [1997]).

The Supreme Court's holding was principally based on language contained in Rule 10b-5, which expressly limited the applicability of the rule to fraudulent and/or deceitful conduct in cases involving "the purchase or sale of any security" (see,17 C.F.R. § 240.10b-5)[emphasis added].

Nevertheless, the Court also relied heavily upon policy considerations, including "the abuse potential and proof problems" (U.S. v. O'Hagan, supra), to which the securities area would be uniquely vulnerable; namely, that sanctioning marginally pleaded holder actions founded on oral testimony and uncorroborated allegations of shareholder reliance, would open a "Pandora's box of vexatious and meritless suits" and foster a coercive settlement atmosphere well out of proportion to the substantive merit of the cases being litigated (Blue Chip Stamps v. Manor Drug Stores, supra, 421 US at 739-740 cf., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 US 71, 80-81 [2006]; In re Enron Corp. Securities, Derivative & ""ERISA,'' supra, Slip Opn at 11, 13-14).

Although the Blue Chip holding applied federal law to private actions under Rule 10b-5, Courts which have considered common-law based holder actions have generally adopted the [*8]Supreme Court's policy concerns by requiring heightened levels of proof with respect to the key elements of reliance, causality and damages (Small v. Fritz Companies, Inc., supra, at 1265; In re WorldCom, Inc. Securities Litigation, supra, at 320-322; Shirvanian v. DeFrates, supra; In re Enron Corp. Securities, Derivative & ""ERISA',' supra, see also, Hunt v. Enzo Biochem, Inc., supra, at 413 cf., Manzo v. Rite Aid Corp., supra, at 4).

Here, the plaintiffs' theory rests in part upon the attenuated claim that Mr. Lee was already intent upon selling very substantial portions of Marsh stock in May, apparently based on his knowledge of the pending investigation, but that he delayed selling, despite such knowledge, requested a meeting with Greenberg , did not get such meeting for some months and then did not sell solely because Greenberg in the face to face meeting assured him, in substance, that there was nothing to be concerned about. Thus we are told or at least left to infer that if he was told the "truth" he would have sold, relying on insider information.

But, to avoid reliance on the theory that they were entitled to the "truth," the plaintiffs instead circuitously assert, with the benefit of hindsight, that they would have immediately executed a multi-million dollar stock sale, perhaps that very day, if Greenberg had literally told them nothing, i.e., if no information at all was provided notwithstanding their private meeting (Cmplt., ¶ 97).

This strained theory presupposes reliance on Lee's oral account of what he might have done after the meeting, and would compensate only the plaintiffs,( as opposed to other shareholders damaged by the same price declines) for those amounts which the plaintiffs might have recovered, if only they had sold their stock immediately; a nebulously linked chain of events which, in the Court's view, fails as "speculation founded upon uncertainty" (cf., Manzo v. Rite Aid Corp., supra, Slip Opn., at 5).

In short, the Court agrees that notwithstanding the face-to-face communication which did ensue here accepted as fact for purposes of this motion, (Shirvanian v. DeFrates, supra cf., Hunt v. Enzo Biochem, Inc., supra, at 413; Gutman v. Howard Sav. Bank, supra, 266), the operative factual allegations advanced here fall within the class of those generally disapproved by the Courts; namely, strained theories requiring juries toweigh oral testimony and award damages based on speculative reliance and causality scenarios, which are contingent in part on what a person, in retrospect, could or might have done if the historical record had been different (Shirvanian v. DeFrates, supra see also, Blue Chip Stamps v. Manor Drug Stores, supra; Crocker v. Federal Deposit Ins. Corp., supra, at 351).

The Court has considered the plaintiffs' remaining contentions and concludes that they are insufficient to defeat the defendants' motions to dismiss.

In light of the Court's determination, it is unnecessary to reach the remaining claims advanced by the defendants.

Accordingly, it is

ORDERED that the motions by the defendants Marsh & McClennan Companies, Inc., Marsh, Inc., and Jeffery Greenberg for an order dismissing the second amended complaint pursuant to CPLR 3211 insofar as asserted against them, is granted, and it is further

ORDERED that the plaintiffs' cross motion for consolidation is denied as academic.

The foregoing constitutes the decision and order of the Court.

Dated: December 7, 2007

J.S.C.

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