Opinion
CIVIL NO. 01-0214 (JBS)
December 18, 2001
Steven J. Fram, Esquire, Christopher M. Barr, Esquire, ARCHER GREINER, P.C., Haddonfield, New Jersey, Attorneys for Plaintiff
Joseph Wolfson, Esquire, STEVENS LEE, Cherry Hill, New Jersey S. Daniel Ponce, Todd R. Legon, Jordan M. Keusch, WALLACE, BAUMAN, LEGON, FODIMAN, PONCE SHANNON, P.A., Miami, Florida, Attorneys for Defendant
OPINION
Plaintiff Interactive Logistics, Inc., ("ILI") brings this action against defendant Answerthink, Inc., ("Answerthink") to recover damages stemming from an agreement in which Answerthink consulted and advised ILI of its viability in the "e-commerce fulfillment" field, then created and upgraded its computer and management systems. Plaintiff ILI is a company that assists companies in selling goods over the internet, or "e-commerce," by providing trucking, warehousing, and shipping services. Defendant Answerthink provides e-commerce fulfillment services to companies engaged in e-commerce transactions. ILI alleges that defendant Answerthink misrepresented its ability to upgrade and enhance plaintiff's systems according to the terms of their agreements and misrepresented to ILI its own capacity for improvement in the e-commerce fulfillment field. ILI asserts that Answerthink committed a violation under the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. 56:8-1 et seq., fraud, equitable fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, and breach of duty of good faith and fair dealing.
Presently before the Court is defendant Answerthink's motion to dismiss Count I, which asserts a violation under the NJCFA, and Count V, which asserts breach of fiduciary duty. For the reasons discussed herein, the Court grants defendant's motion to dismiss Count I, but denies the motion to dismiss Count V.
BACKGROUND
Plaintiff ILI is a company that, in or about 1997, began providing third-party logistics services, including trucking, warehousing, and shipping services to various companies who sell their goods over the Internet, also known as "e-commerce." (Compl. ¶¶ 1, 9.) plaintiff retained defendant Answerthink in early 2000 to assist ILI in expanding its business and enhancing its technological capabilities by assessing ILI's operations, including its business plan, management structure, and computer systems. (Id. ¶ 10.) plaintiff asserts that defendant reported net revenues of over $242 million for the nine months ending September 2000. (Id. ¶ 12.) Plaintiff alleges that defendant reported that plaintiff had significant weaknesses in all major e-commerce fulfillment areas, such as customer relationship management, order capture, shipping and returns, warehousing, materials acquisition, customer service, and planning/strategy. (Id. ¶ 13.) Defendant also purportedly represented to plaintiff that its information technology structure was seriously flawed because it was neither scalable, that is, capable of expanding to handle increased volume, nor flexible, that is, not adaptable to meet anticipated customer changes. (Id.) In addition, defendant allegedly further advised plaintiff that market leadership in the e-commerce fulfillment market would be established over the next eighteen (18) months and that plaintiff would have to upgrade major aspects of its business and capabilities if it were to succeed. (Id. ¶ 14.) Defendant recommended that it be retained by plaintiff in order to assist in developing the information technology systems. (Id. ¶ 15.)
Plaintiff and defendant entered into three written "Statements of Work" ("SOWs"), in which plaintiff retained defendant as consultant to proceed with three projects: (1) a Program Management Office project; (2) an Information Technology Design project; and (3) the E-Fulfillment Rapid Initiation and Execution Design project, which was meant to result in a technical "Platform for Growth" project that would assist plaintiff in succeeding in e-commerce fulfillment. (Id. ¶¶ 17, 18, 19.) In May 2000, defendant reported that it had completed the technical specifications and architecture for the systems, applications, and services required for the Platform for Growth project, and recommended that plaintiff design, develop, and test the components of the project. (Id. ¶ 20.) Defendant initially proposed a cost of $2.5 to $3 million to plaintiff in order to proceed with the Platform for Growth project, but plaintiff rejected this amount as too expensive. (Id. ¶¶ 21, 22.) Plaintiff and defendant then executed a SOW dated June 5, 2000, in which defendant represented that it could complete the Platform for Growth project by October 20, 2000, at a cost of $1,311,000. (Id. ¶¶ 23, 24.) Plaintiff asserts that it was known to both parties that the timing of completion of the project was "critical," in order for the system to be fully operational for the 2000 holiday season. (Id. ¶ 25.)
In September 2000, defendant advised plaintiff that it would not be able to successfully complete the project by the date agreed upon and advised that the project could be completed by May 2001 for an additional $2,328,693. (Id. ¶ 26.) Plaintiff alleges that defendant intentionally misrepresented to plaintiff that plaintiff's business and technology systems were inadequate, that the changes it recommended were necessary for future success, and that the project would be completed before the 2000 holiday season, and that defendant intentionally underestimated the amount of work required for the project. (Id. ¶ 28.)
Plaintiff now seeks treble damages, attorneys' fees, experts' fees, and costs of litigation under the NJCFA, compensatory damages, punitive damages, and interests and costs. (Id. ¶ 56.)
I. DISCUSSION
A. Standard for Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver, 38 F.3d at 1384. A court may not dismiss a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, the question is whether the claimant can prove any set of facts consistent with his allegations that will entitle him to relief, not whether that person will ultimately prevail.
B. New Jersey Consumer Fraud Act
Plaintiff asserts that defendant violated the New Jersey Consumer Fraud Act. The New Jersey Consumer Fraud Act ("NJCFA" or "Act") provides:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice . .
Merchandise is defined in N.J.S.A. 56:8-1(c) as including: "any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale."
N.J.S.A. 56:8-2 (2001). The New Jersey legislature passed the NJCFA in 1960 "to permit the Attorney General to combat the increasingly widespread practice of defrauding the consumer." Cox v. Sears Roebuck Co., 138 N.J. 2, 14 (1994) (quoting Senate Committee, Statement to the Senate Bill No. 199 (1960)). The NJCFA was initially designed to combat "sharp practices and dealings in the marketing of merchandise and real estate whereby the consumer could be victimized by being lured into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices." J R Ice Cream Corp. v. Cal. Smoothie Licensing Corp., 31 F.3d 1259, 1272 (3d Cir. 1994) (quoting Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978)).
Here, plaintiff is not excluded from protection under the Act solely because of its status as a corporate entity. See City Check Cashing, Inc. v. Nat'l State Bank, 244 N.J. Super. 304, 309 (App.Div. 1990) ("The Act does not exclude business entities from its protection so long as they are "consumers.'") (citing Hundred East Credit Corp. v. Eric Schuster Corp., 212 N.J. Super 350, 354-57 (App.Div.), certif. denied, 107 N.J. 60 (1986). The Court is aware that "a business entity can be, and frequently is, a consumer in the ordinary meaning of that term . . . [and] [s]ince a business entity is also a "person' entitled to recover under the Act, there is no sound reason to deny it the protection of the Act." Hundred East Credit, 212 N.J. Super. at 355-56. Indeed, and as plaintiff argues, certain corporate purchases may be within the scope envisioned by the Act. "It is clear that a corporation may qualify as a person under the Act when it finds itself in a consumer oriented situation." BOC Group, Inc. v. Lummus Crest, Inc., 251 N.J. Super. 271, 277 (App.Div. 1990); see e.g., D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 24 (App.Div. 1985) (applying Act to corporation's purchase of tow truck); Perth Amboy Iron Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 211-12 (App.Div. 1988), aff'd, 118 N.J. 249 (1990) (corporation's purchase of yacht is covered by the Act); Hundred East Credit, 212 N.J. Super. at 357 (corporation's purchase of computer peripherals is covered by the Act). Cf. J R Ice Cream, 31 F.3d at 1273 (individual or corporation, in purchase of a franchise, is not a person in a "consumer oriented situation" and thus not covered under the Act)
Indeed, the Act intended to protect "consumers who purchase "goods or services generally sold to the public at large.'" Arc Networks, Inc. v. Gold Phone Card Co., Inc., 333 N.J. Super. 587, 589 (App.Div. 2000) (quoting Marascio v. Campanella, 298 N.J. Super. 491, 499 (App.Div. 1997)). The Act was designed to apply to "products and services sold to consumers in the popular sense." Arc Networks, 333 N.J. Super. at 589 (citing Neveroski v. Blair, 141 N.J. Super. 365, 378 (App.Div. 1976)). "[T]o be a consumer respecting the transaction in question, the business entity must be "one who uses (economic) goods, and so diminishes and uses their utilities.'" City Check Cashing, 244 N.J. Super. at 309 (quoting Hundred East Credit, 212 N.J. Super. at 355).
The Neveroski case, holding that a real estate broker was not under the purview of the Act, is considered superseded by a 1976 amendment to the Act, which reflects that real estate transactions are within the scope of the Act. See N.J.S.A. 56:8-2 (adding real estate to the coverage of the Act); Arroyo v. Arnold-Baker Assoc., Inc., 206 N.J. Super. 294, 295-96 (App.Div. 1985) (holding that Neveroski is no longer the law of New Jersey and that real estate brokers, agents and salespersons are subject to the NJCFA).
While the provisions of the Act are to be "`construed liberally in favor of the consumer to accomplish its deterrent and protective purposes,' the Act is not intended to cover every transaction that occurs in the marketplace." Arc Networks, 333 N.J. Super. at 590 (quotingLettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999)). The Act is limited to "consumer transactions" which are defined both by the status of the parties and the nature of the transaction itself. Arc Networks, 333 N.J. Super. at 590; see also City Check Cashing, 244 N.J. Super. at 309; Naporano Iron Metal Co. v. Am. Crane Corp., 79 F. Supp.2d 494, 508 (D.N.J. 2000) ("[I]t is the character of the transaction, rather than the identity of the purchaser which determines if the Consumer Fraud Act is applicable.") (quoting J R Ice Cream, 31 F.3d at 1273). The Division of Consumer Affairs has also identified various types of consumer transactions to which the Act applies. See N.J.A.C. 13:45A-1.1 et seq. Although not exclusive, the list indicates that certain transactions were envisioned to be within the scope of the Act, including automotive repair, household furniture delivery, refund policy disclosures in retail entities, home improvement work, home appliance servicing and repair, and sale of animals and meat. See id.
Defendant asserts that the services it rendered to plaintiff, namely, the development and implementation of new computer systems and infrastructure for plaintiff's e-commerce fulfillment business, fall outside the scope of the NJCFA because such services do not constitute "consumer transactions" as contemplated by the Act. Defendant cites BOC Group, Inc. v. Lummus Crest, Inc., 251 N.J. Super. 271 (App.Div. 1990), for the proposition that its services to plaintiff regarding the design of computer systems falls outside the scope of the Act. In BOC, plaintiff had retained defendant to design and engineer a needle coke manufacturing plant, to be used in the process of producing graphite electrodes. Plaintiff, unhappy with the performance of the plant and concerned that confidential information plaintiff revealed during the project would be utilized by defendant in other endeavors, brought suit asserting fraud and NJCFA claims. The court in BOC held that the Act did not apply to the transaction at issue, finding that the "complex process and collateral services" were not goods available to the general public nor mass-produced for consumerism, id. at 279-80, and that "[t]he complex petroleum refining process at issue is not a service, nor is it merchandise under N.J.S.A. 56:8-1(c). What was sold to the plaintiff was an idea." Id. at 278.
Utilizing the BOC framework, defendant's argument is persuasive. Here, defendant provided consulting services and designed computer systems to enable plaintiff to compete in the e-commerce field. Rather than mass-produced to members of the general public, defendant's "product" is primarily suited for and specifically marketed to firms, companies, and corporations. Indeed, the product in this case, the design and development of computer and management systems, was initially an "idea" pitched by defendant. The "idea" subsequently required input by plaintiff, and was ultimately molded and shaped by the decisions of both parties. As such "products" are neither mass-produced for public consumption nor readily consumed, it is unlikely that plaintiff's purchase of defendant's services is within the "consumer oriented situations" envisioned by the Act.
Plaintiff raises the argument that it has "consumed" the services and goods that defendant provided to it and thus the NJCFA should apply. InArc Networks, plaintiff and defendant entered into a contract in which plaintiff agreed to provide computer network and bulk telephone switching services for long distance phone calls to defendant, a distributor of prepaid telephone cards. Plaintiff terminated defendant's cards, some of which had already been distributed to consumers, and sued defendant for the balance due under the contract, while defendant filed a counterclaim for damages and for violations under the NJCFA. The court held that "[t]he transaction between [defendant] and [plaintiff] contains none of the characteristics or indicia of the "consumer transactions" defined under the Code nor does [defendant] qualify as a "consumer . . . .'" 333 N.J. Super. at 591. The court reasoned that the bulk telephone and computer services that defendant purchased from plaintiff "were not available to the general public" and could only be accessed through the "800" numbers and PINs that defendant provided to its purchasers. In addition, the court emphasized the nature of the cause of action and the damages defendant sought, noting in particular that defendant did not "consume" plaintiff's services because its purpose in contracting with plaintiff was to resell those services to purchasers of the phone card, and that defendant's claim for damages were not for damages it personally sustained, but for business losses resulting from plaintiff's failure to perform.
As in Arc Networks, in the instant matter, the services defendant provided to plaintiff were not "available to the general public." Neither were they to be used as an "economic good." The computer systems and consulting services were to be used internally in ILI's business, to improve its marketability in the e-commerce fulfillment field. The fact that ILI "consumed" defendant's services does not negate the fact that such services are not ordinarily or similarly marketed to consumers in the general public, and thus are not "consumer oriented situations" covered by the Act.
Plaintiff additionally argues that defendant's services can be likened to professional services and is therefore subject to NJCFA, citingWaterloov Gutter Prot. Sys. Co., Inc. v. Absolute Gutter Prot., LLC, 64 F. Supp.2d 398 (D.N.J. 1999) (holding the Act inapplicable to alleged attorneys' misstatements in connection with investment in start-up company), to support the proposition that such professional services are not given a per se exclusion under the Act. The Court agrees with plaintiff that the NJCFA is potentially applicable to consulting and computer services. The Court contemplates that the NJCFA could protect consumers who have sought an attorney's legal advice, see, e.g., Gilmore v. Berg, 761 F. Supp. 358, 375-76 (D.N.J. 1991), a company's financial services, see, e.g., Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 273 (1997), or an architect's services, see e.g.,Blatterfein v. Larken Assoc., 323 N.J. Super. 167, 182 (App.Div. 1999). However, as plaintiff itself stated, the Third Circuit has noted that "it is the character of the transaction, rather than the identity of the purchaser which determines if the Consumer Fraud Act is applicable." J R Ice Cream Corp., 31 F.3d at 1273. While professional services such as those listed above are often marketed to and utilized by discrete individuals of the general public for personal and individual use, plaintiff's services cannot be characterized as such.
The Court holds that the complaint, alleging fraud in defendant's promises and performance regarding a multi-level, multi-phase customized design and implementation of plaintiff's internal operations, management and computer structure, fails to state a claim under the NJCFA because this is not a "consumer transaction" under the Act. Accordingly, this Court will grant defendant's motion to dismiss Count I regarding plaintiff's claim under the New Jersey Consumer Fraud Act.
C. Breach of Fiduciary Duty
Defendant asserts that plaintiff fails to allege any facts that support a cause of action for breach of fiduciary duty. In New Jersey, a fiduciary relationship exists between two parties when "one person places trust and confidence in another who is in a dominant or superior position," or when one person is "under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship." F.G. v. MacDonnell, 150 N.J. 550, 563, 564 (1997) (holding that parishioner could bring breach of fiduciary duty claim against rector for sexual misconduct). A fiduciary relationship will then exist if "the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overwhelming influence, or, on the other, weakness, dependance or trust, justifiably reposed." In re Stroming's Will, 12 N.J. Super. 217, 224 (App.Div. 1951) (citations omitted)
In this case, plaintiff retained defendant to assess its operations, including its business plan, management structure, and computer systems. After analyzing plaintiff's business and computing systems, defendant advised that plaintiff had significant weaknesses in several e-commerce fulfillment areas. Defendant advised and represented to plaintiff that market leadership in the e-commerce fulfillment market would be established over the next 18-20 months, and that plaintiff would have to change dramatically by upgrading its business and information technology ("IT") capabilities by the end of 2000 if it expected to succeed. Based upon these assessments, its expertise, and resources, defendant then recommended to plaintiff that it be retained to develop plaintiff's new IT systems. In February and March 2000, the parties entered into extensive negotiations regarding the consulting services and other services that defendant would provide plaintiff. Plaintiff retained defendant's services in connection with three projects that were intended to improve plaintiff's capabilities in the e-commerce fulfillment field. After plaintiff rejected an initial estimate as too high, plaintiff and defendant agreed to the third SOW, titled "E-Fulfillment Rapid Initiation and Execution Design," in which defendant agreed to complete a "Platform for Growth" project by October 20, 2000, at a cost of $1,311,000. In September 2000, defendant advised plaintiff that the Platform for Growth Project would not be completed on schedule.
Plaintiff asserts that "[b]y virtue of its expertise in E-Commerce fulfillment consulting and the relationship of trust and confidence that existed between ILI and Answerthink, Answerthink was a fiduciary with respect to ILI and, as such, had a duty to disclose information to ILI." (Compl. ¶ 47.) ILI alleges that Answerthink breached this duty by failing to disclose accurate information regarding Answerthink' s capabilities and qualifications to assist ILI; the adequacy of ILI's management and technology systems; ILI's technology needed in order to compete successfully; the cost of the work; amount of time necessary to complete the work; and the value of ILI to Answerthink's work. (Compl. ¶ 47.)
Defendant moves to dismiss this count because plaintiff has failed to allege any facts demonstrating that a fiduciary relationship existed between plaintiff and defendant. Whether a consulting company can be in a fiduciary relationship with its client is at issue here. In the context of a relationship between an accountant and a client, it "is generally not a fiduciary relationship when the accountant is employed to audit financial statements, because the independence required is "fundamentally inconsistent with status as a fiduciary.'" In re Cendant Corp. Sec. Litig., 139 F. Supp.2d 585, 609 (D.N.J. 2001); see also Painters of Phila. Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 1151 (3d Cir. 1989) (holding that accountant who did nothing more than perform audit for ERISA plan is not a fiduciary). A fiduciary relationship may exist, however, between an accountant and client if their relationship "goes beyond merely rendering an independent audit and providing investment advice." Cendant, 139 F. Supp.2d at 609. The court denied the motion to dismiss the breach of fiduciary duty claim based on evidence that the accountant "provided advice upon which it knew [plaintiff] would rely in making important decisions," id. at 610, finding that "these allegations are sufficient for [plaintiff] to be able to demonstrate it reposed trust in [defendant] "s superior skill and knowledge, specifically for the benefit of [plaintiff]." Id.
In the instant matter, plaintiff alleges that it relied upon defendant, its consulting advice, and its expertise in computers and information technology, in determining how it could improve itself to better compete in the e-commerce fulfillment field. Viewing the pleadings in the light most favorable to plaintiff, it can be inferred that defendant, knowing plaintiff's limited technological capabilities and its financial status, gave plaintiff advice that had the potential to critically alter plaintiff's economic situation. Plaintiff alleges that defendant knew plaintiff would rely on defendant's advice, and indeed repose trust in that advice, in making the important decision of improving its computer and IT systems, and how and when it would do so. Defendant's advice and recommendations after an analysis of plaintiff's technological and management capabilities indeed resulted in an agreement amounting to over one million dollars between the parties for defendant to create and upgrade plaintiff's computer systems. Like Cendant, defendant here provided advice that significantly affected plaintiff's financial situation by encouraging it to expend over a million dollars to improve its technological capability, while representing itself as being an expert in the field. Under Cendant, the allegations as pled are sufficient to demonstrate that ILI reposed trust in Answerthink's superior skill and knowledge in the e-commerce field.
Defendant argues that plaintiff and defendant's intense negotiations regarding the parameters of their business relationship in February and March 2000 indicate that the parties were on equal footing in terms of their bargaining power. Indeed, plaintiff's rejection of defendant's first time and cost estimate for one portion of the project demonstrates that the "weakness" often found in typical fiduciary relationships may be lacking.
However, it is unclear that plaintiff and defendant were conclusively on equal bargaining terms, or that they conducted their business transactions "at arms-length." Plaintiff cites that defendant reported net revenues of $242 million for the nine months ending in September 2000. Yet, plaintiff neglects to cite its own net revenues or any indication of its financial status. As future discovery unfolds, the Court finds it would be helpful information in ascertaining whether defendant in the instant case had the power and opportunity to take advantage of plaintiff, as plaintiff attempts to argue. Indeed, given the history of negotiations and bargaining for price and scope of work, it may be difficult for plaintiff to prove the existence of the fiduciary relationship it has alleged. Whether future evidence will support these allegations is not the subject of this Rule 12(b)(6) motion.
The Court is persuaded by plaintiff's contention that the issue of breach of fiduciary duty should be permitted to go forward. The Fifth Circuit in Lloyd v. Pendleton Land Exploration, Inc., reversed the court below in its failure to submit the issue of breach of fiduciary duty to the jury in a case where an oil and gas exploration company had retained a geologist consultant, who used the company's valuable geological database to develop a new concept for marketing and sale. 22 F.3d 623 (5th Cir. 1994), reh'g denied; see also In re Daisy Sys. Corp., 97 F.3d 1171, 1180 (9th Cir. 1996) (reversing district court's denial of leave to amend to state claim for breach of fiduciary duty against financial advisor in corporate acquisition). In Lloyd, the Fifth Circuit concluded that the evidence, indicating that the company had a trusting relationship with the geologist consultant in their joint exploration of certain lands and that the geologist breached this trust, did not point so strongly and overwhelmingly in favor of the non-complainant such that reasonable jurors could not find a breach of fiduciary duty under Texas law. Id. at 626. This Court concludes that the plaintiff's allegations in this case sufficiently indicate a trusting relationship between plaintiff and defendant in the development of computer and technological systems for plaintiff's benefit and a subsequent breach of that trust, and therefore, does not point so overwhelmingly in defendant's favor such that dismissal of the claim for breach of fiduciary duty is required. The Court therefore will deny defendant's motion to dismiss Count V as to breach of fiduciary duty.
CONCLUSION
For the reasons discussed above, this Court grants defendant's motion to dismiss Count I as to the claim brought under the New Jersey Consumer Fraud Act, and denies defendant's motion to dismiss Count V as to the claim for breach of fiduciary duty. Therefore, Count V shall proceed to trial. In addition, pursuant to Fed.R.Civ.P. 12(a)(4)(A), defendant Answerthink is hereby ordered to answer plaintiff ILI's Complaint within ten (10) days of today's date. The accompanying Order is entered.