10/3. The U.S. Court of Appeals (2ndCir) issued its opinion [43 pages in PDF] in Twombly v. Bell Atlantic, an class action antitrust suit against the regional bell operating companies (RBOCs) alleging conspiracy to exclude competitors from, and not to compete against one another in, their respective geographic markets for local telephone and high speed internet services. The District Court dismissed the complaint for failure to state a claim. The Court of Appeals vacated and remanded.

However, this opinion is merely about the minimal pleading requirements for withstanding a motion to dismiss an antitrust complaint. The case goes back to the District Court, and will proceed to discovery. The plaintiffs will have greater difficulty surviving a motion for summary judgment, or prevailing in trial upon the merits.

This case was brought class action lawyers, including Milberg Weiss. They seek class action status. The named plaintiff is William Twombly. The defendants are the RBOCs, Verizon (and Bell Atlantic), BellSouth, SBC and Qwest.

The complaint, filed in the U.S. District Court (SDNY), alleges violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. The plaintiffs seek treble damages pursuant to Sections 4 and 16 of the Clayton Act, which are codified at 15 U.S.C. §§ 15(a) and 26.

The complaint alleges that the defendants resisted the mandate of the Telecommunications Act 1996 by conspiring with one another to keep competitive local exchange carriers (CLECs) from competing successfully in their respective territories. It also alleges that there is an agreement among the defendants not to compete with each other.

The complaint does not allege that there is any document that constitutes or memorializes any such agreements. Rather, it makes assertions regarding the motives and parallel conduct of the defendants.

Section 1 of the Sherman Act provides, in part, that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished ..."

The District Court dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), FRCP. It held that parallel conduct does not amount to conspiracy under federal antitrust law. See, opinion reported at 313 F. Supp. 2d 174.

The Court of Appeals vacated the District Court's dismissal. It wrote that "We are reviewing the grant of a motion to dismiss, not the grant of a motion for summary judgment, however. To survive a motion to dismiss ... an antitrust claimant must allege only the existence of a conspiracy and a sufficient supporting factual predicate on which that allegation is based." It added that "to rule that allegations of parallel anticompetitive conduct fail to support a plausible conspiracy claim, a court would have to conclude that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence."

The Court continued that "if a plaintiff can plead facts in addition to parallelism to support an inference of collusion -- what we have referred to above as ``plus factors´´ at the summary judgment stage -- that only strengthens the plausibility of the conspiracy pleading. But plus factors are not required to be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal."

The Court acknowledged that such a principle will "likely lead defendants to pay plaintiffs to settle what would ultimately be shown to be meritless claims", and that "the success of such meritless claims encourages others to be brought". Yet, it offered the rationale that "in a regime that contemplates the enforcement of antitrust laws in large measure by private litigants, although litigation to summary judgment and beyond may place substantial financial and other burdens on the defendants, neither the Federal Rules nor the Supreme Court has placed on plaintiffs the requirement that they plead with special particularity the details of the conspiracies whose existence they allege."

The Court suggested that if there are too many meritless antitrust complaints, it is the responsibility of the Supreme Court or the Congress, not the lower courts, to change the rules for dismissal of such complaints.

Following pretrial discovery, the plaintiffs may not be able to produce evidence of these "plus factors", and thus, may lose in the inevitable proceedings on the defendants' motion for summary judgment, pursuant to Rule 56, FRCP.

This case is William Twombly, et al. v. Bell Atlantic Corporation, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 03-9213, an appeal from the U.S. District Court for the Southern District of New York, Judge Gerald Lynch presiding. Judge Sack wrote the opinion of the Court of Appeals, in which Judges Raggi and Hall joined.

10/3. President Bush nominated Harriet Miers to be a Justice of the Supreme Court. She is currently the White House Counsel.

Miers (at left) is from Dallas, Texas. She received an undergraduate degree in mathematics, and a law degree in 1970, from Southern Methodist University (SMU), which is located in suburbs of Dallas.

Laura Bush is an alumnus and trustee of SMU. Miers is a former member of the SMU Law School Executive Committee. See, SMU biography of Miers.

She clerked for former U.S. District Court Judge Joe Estes. She worked for the Dallas based law firm of Locke Purnell (now Locke Liddell & Sapp) from 1972 through 1999, where she rose to the position of Co-Managing Partner. Locke Purnell is a firm that built its reputation in Dallas as a leading insurance defense firm, although it focus is broader today.

The National Law Journal's ranking of law firms based on number of attorneys ranks Locke Liddell 94th. Vault's ranking of the top 100 law firms in 2004 based upon prestige does not list Locke Liddell. The Am Law 100 2002 ranking of law firms by total revenue ranked Locke Liddell 84th.

A biography of Miers published by the American Justice Partnership, states that she represented "Microsoft, Walt Disney Co. and SunGard Data Systems Inc.".

Unlike most other Appeals Court and Supreme Court nominees in recent decades, she has never served as a state or federal judge, and has worked little in Washington DC. Instead, she has considerable experience as a practicing lawyer representing clients in the private sector.

She went to work in the Bush White House on January 20, 2001, the first day of the Bush administration. She was first Assistant to the President and Staff Secretary. She later became Deputy Chief of Staff for Policy. In November of 2004, Bush picked her to succeed Alberto Gonzales as White House Counsel, whom he had nominated to be the Attorney General.

There is little in the public record regarding Miers' views on legal issues. She has written no judicial opinions. She will likely strive to say little during the confirmation process. However, since she has worked for years as George Bush's gatekeeper and attorney, he has likely had ample opportunity to learn her views, in a manner that has left no trail of documents. There is a great asymmetry of information between the President and Miers, on the one hand, and the Senate and American public, on the other.

Bush stated little at the announcement on October 3. He said that "Harriet Miers will strictly interpret our Constitution and laws. She will not legislation from the bench."

Miers is also a former member of the Dallas City Council. She is also a former member of the Executive Committee and Board of the Greater Dallas Chamber of Commerce.

Sen. Harry Reid. Also, from 1995 through 2000, Miers was Chair of the Texas Lottery Commission, which oversees state run gambling operations. Sen. Harry Reid (D-NV), the Senate Minority Leader, is one person opponents of Miers will rely upon to lead the effort to reject Miers. He is a former Chair of the Nevada Gaming Commission. The economy of Nevada is heavily dependent on the gambling industry, and the associated hotel, convention, and entertainment services.

Sen. Reid stated in a release on October 3 that "I like Harriet Miers".

Sen. Reid continued that "As White House Counsel, she has worked with me in a courteous and professional manner. I am also impressed with the fact that she was a trailblazer for women as managing partner of a major Dallas law firm and as the first woman president of the Texas Bar Association."

"In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court", said Sen. Reid. "I look forward to the Judiciary Committee process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court."

Campaign Contributions. Federal Election Commission (FEC) records show that in recent years she has generously supported Republicans. However, she was previously a Democratic contributor.

She contributed $2,000 to the Bush Cheney 2004 campaign.

During the 2000 election cycle she gave money to Bush for President ($1,000), the Bush Cheney 2000 Compliance Committee ($1,000), and the Bush Cheney Inc. Recount Fund ($5,000).

She also contributed in the 2000 cycle to Sen. Kay Hutchison (R-TX), who won re-election, and Jon Newton for Congress ($1,000), who lost. Newton ran against Rep. Ralph Hall (R-TX), who was then a Democrat, but is now a Republican. Hall had long acted more like a Republican than many actual Republicans. He beat Newton by 60%-38%.

She also gave money in the 2000 cycle to the Dallas County Republican Party ($1,000), the Locke Liddell PAC ($415), and the Good Government Fund ($500)

She gave to Hutchison in the 1998 election cycle, and to Phil Gramm for President in the 1996 cycle.

She was an early supporter of Rep. Pete Sessions (R-TX), contributing to his campaigns in the 1992, 1994, and 1996 election cycles. He finally won a House seat in 1996. Sessions was a longtime SBC employee before becoming a politician.

While her recent record of contributions has been all Republican, earlier she gave money to Democrats.

In the 1988 election cycle she gave money to Al Gore's presidential campaign (he lost the Democratic nomination to Dukakis), former Senator Lloyd Bentson's Senate campaign, the Democratic National Committee, and her law firm's PAC.

More Statements About Miers. Attorney General Alberto Gonzales stated in a release that "President Bush has made an exceptional choice in selecting Harriet Miers as his nominee to the Supreme Court of the United States. I have worked with her for many years and have seen firsthand her legal acumen and know that she will be a credit to the Court and this Nation. She has risen to the very top of the legal profession, earning the respect of all who know her. Ms. Miers would bring to the Court her brilliance, dedication, and her commitment to the rule of law and equal access to justice for all."

"Throughout her career, Ms. Miers has been recognized as a pioneer in the law. As the first woman president of the State Bar of Texas and as a dedicated public servant, she has been a role model for women and for all lawyers. I am confident that Ms. Miers will serve with distinction on the highest Court in the land."

Sen. Charles Grassley (R-IA), a senior member of the Senate Judiciary Committee, wrote in a release that "President Bush made his choice for the remaining Supreme Court vacancy after consulting with 80 Senators.  There's no doubt Harriet Miers is an experienced lawyer and has been a trailblazer for women throughout her legal career.  I now look forward to the next step in the confirmation process and learning more about Ms. Miers’ views and reviewing her qualifications."

He added that "The Senate conducted a dignified hearing and timely floor debate, including an up or down vote, during the last nomination. But before this nomination was even announced, the liberal interest groups threatened a filibuster. Despite these threats from outside interest groups, I hope to see Senators -- both Republican and Democratic -- stay open-minded and treat Ms. Miers with the even hand and respect we saw during the confirmation of Chief Justice Roberts."

Sen. Orrin Hatch (R-UT), also a member of the SJC, wrote in a release that "Harriett Miers will bring diversity and depth to the Court ... She has broad professional experience that will provide a fresh perspective from outside the insular walls of the judiciary. As White House Counsel, she has been overseeing the process of choosing judges who will interpret, but not make, the law. Throughout her life, she has been dedicated to the law and has always set an example of integrity, accomplishment and service. It's important that we don’t prejudge the nominee; I hope the Senate again shows the American people that we can conduct a dignified and thorough confirmation process."

People for the American Way, a Washington DC based interest group that opposes the appointment of conservatives to the courts, issued a release regarding Miers. Ralph Neas, President of PFAW, stated in this release that "President Bush has nominated his personal lawyer and long-time friend to a lifetime appointment on the Supreme Court. His choice raises serious questions about whether he has found a nominee who has the requisite qualifications and independence for the nation’s highest court. This nomination will require the closest scrutiny by the Senate ... With no past judicial experience for the senators to consider, the burden will be on Miers to be forthright with the Senate and the American people.  She must outline her judicial philosophy and provide direct answers to questions about how -- and whether -- she will uphold fundamental rights, liberties and legal protections on which Americans rely."

10/3. News reports and blog discussions have already focused on whether or not Miers is qualified to be a Supreme Court Justice, citing her education, and that she has not been a judge. Harriet Miers' educational credentials are an undergraduate and law degree from Southern Methodist University (SMU).

This article provides information regarding the ranking of SMU, and other graduates that have attained high government office.

Law School Rankings. SMU's law school is not highly ranked. The Association of American Law Schools has 166 member schools, including SMU. Although, not all U.S. law schools are members.

The U.S. News and World Report's ranking of law schools ranks SMU 52nd.

The Thomas M. Cooley Law School 2005 ranking ranks SMU 38th.

Brian Leiter, of the University of Texas Law School, has published numerous rankings of law schools based upon various criteria. For example, he has several ratings based upon the number of citations to works authored by faculty members. He rates the top forty. SMU is not listed. He also rates the top 40 law schools based upon faculty quality. Again, SMU is not listed.

SMU Law Graduates. Perhaps the SMU law school graduate who is best known to those who follow developments in technology law is Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP). He has worked with Rep. Howard Berman (D-CA), the ranking Democrat on the CIIP Subcommittee, to enact legislation providing further copyright protection and remedies, primarily for the entertainment industries. He is now working on a major rewrite of patent law. He is also a likely future Chairman of the full Committee.

Other SMU law school graduates include the following:
 • Rep. Ralph Hall (R-TX), the Chairman of the House Energy and Commerce Committee's Subcommittee on Energy.
 • Antonio Garza, U.S. Ambassador to Mexico.
 • Terry Means, Judge of the U.S. District Court (NDTex).
 • Barbara Lynn, Judge of the U.S. District Court (NDTex).
 • Richard Schell, Judge of the U.S. District Court (EDTex).
 • Fred Biery, Judge of the U.S. District Court (WDTex).
 • Jane Boyle, Judge of the U.S. District Court (NDTex).
 • Robert Maloney, Judge of the U.S. District Court (NDTex), senior status.
 • Nathan Hecht, Justice of the Texas Supreme Court.
 • Craig Enoch, former Justice of the Texas Supreme Court.
 • Deborah Hankinson, former Justice of the Texas Supreme Court.

Not all SMU law school graduates are accomplished. For example, the publisher of TLJ graduated from SMU law school.

Rosh Hashanah.

The House will not meet. See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will resume consideration of HR 2863, the defense appropriations bill.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in IPXL Holdings v. Amazon.com, No. 05-1009. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving IPXL's U.S. Patent No. 6,149,055, titled "Electronic Fund Transfer or Transaction System". The District Court granted summary judgment to Amazon. See, opinion [PDF] of the District Court. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

Deadline to submit comments to the Rural Utilities Service (RUS) regarding its proposal to amend its rules regarding telecommunications, including its proposal to establish and codify provisions for RUS acceptance and technical acceptance of materials used in telecommunications systems. See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45314 - 45322.

The House will not meet. See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Slocum Enterprises v. New Generation Devices, No. 05-1195. This is an appeal from the U.S. District Court (DOre) in patent infringement case. The issue on appeal is whether the District Court has personal jurisdiction over the out of state defendant. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:30 PM. Former Secretary of Commerce Don Evans will give a luncheon address on financial services industry and the relation between the flow of capital and freedom. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.

2:15 PM. The Senate Foreign Relations Committee will hold a business meeting to consider numerous pending nominations, including Business meeting to consider the nominations of Robert Mosbacher (to be President of the Overseas Private Investment Corporation), Jan Boyer (US. Alternate Executive Director of the Inter-American Development Bank), Boyden Gray (Representative of the United States of America to the European Union), Josette Shiner (US Alternate Governor of the International Bank for Reconstruction and Development, and other positions). See, notice. Location: Room S-116, Capitol Building.

2:30 PM. The Senate Commerce Committee's Subcommittee on Trade, Tourism, and Economic Development will hold a hearing on spyware. The witnesses will include Deborah Majoras, Chairman of the Federal Trade Commission (FTC). Sen. Gordon Smith (R-OR) will preside. See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 562, Dirksen Building.

The House will meet at 10:00 AM for legislative business. It will consider, pursuant to a rule, the conference report on HR 2360, the "Department of Homeland Security Appropriations Act for Fiscal Year 2006". See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels of postpones meetings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "A Review of the CFIUS Process for Implementing the Exon-Florio Amendment". The secretive Committee on Foreign Investments in the U.S. (CFIUS) is the instrument by which the federal government blocks foreign investment in, and acquisition of, certain technology companies. See, notice. Location: Room 538, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch titled "FCC Wireline Broadband Order". The speakers will be Jack Zinman (SBC Services), Michael Schooler (National Cable & Telecommunications Association), and others. Location: Hogan and Hartson, 555 13th Street, NW, lower level.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "FCC’s E-rate Plans to Assist Gulf Coast Recovery: Ensuring Effective Implementation". The hearing will be web cast by the HCC. See, notice. Press contact: Larry Neal (Barton) at 202 225-5735. Location: Room 2123, Rayburn Building.

2:00 PM. The U.S. Court of Appeals (FedCir), sitting en banc, will hear oral argument in Motion Systems Corporation v. George Bush, No. 04-1428. This case involves the authority of the Court of International Trade to review orders of the President. The sua sponte order [PDF] designating en banc hearing requests briefing on the following issues: "(1) Is the President an "officer" under the terms of 28 U.S.C. § 1581(i) and is the President's action under 19 U.S.C. § 2451 subject to judicial review in a suit against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Mississippi v. Johnson, 71 U.S. 475 (1866). (2) Is there any constitutional barrier that would preclude the Court of International Trade from issuing the requested injunctive relief against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Dalton v. Spector, 511 U.S. 462 (1994); Mississippi v. Johnson, 71 U.S. 475 (1866). (3) Should Corus Group PLC v. Int'l Trade Comm'n., 352 F.3d 1351 (Fed. Cir. 2003) be overruled en banc insofar as it holds that § 1581(i) does not authorize relief against the President? (4) Under the terms of § 1581(i) and § 2451, is the relief requested against the United States Trade Representative available in this case?" Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending judicial nominations. The SJC frequently cancels of postpones hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Finance Committee's Subcommittee on International Trade will hold a hearing on the U.S.-Bahrain Free Trade Agreement. Location: Room 215, Dirksen Building.

4:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold an oversight hearing titled "Improving Federal Court Adjudication of Patent Cases". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

7:00 PM. The National Press Club's (NPC) Photography Committee will host a panel discussion titled "Copyright and the Internet -- What You Can Use and How to Protect Your Work". The speakers will be Sherrese Smith (Washington Post attorney), Lorraine Woellert (Business Week journalist), Stephen Brown (photojournalist), and Joy Chambers (attorney). The event is free, but reservations are required. Phone 202 662-7501. For more information, contact Joy Chambers at 703 864-1945 or Marshall Cohen at 202 364-8332. Location: White Room, NPC, 529 14th St. NW, 13th Floor.

Day one of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding off-axis equivalent isotropically radiated power (EIRP) method for reviewing earth station applications in the fixed satellite service (FSS). See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33426 - 33429. This NPRM is FCC 05-62 in IB Docket No. 00-248.

The House will meet at 9:00 AM for legislative business. It will consider, pursuant to a rule, HR 3893, the "Gasoline for America's Security Act of 2005". See, Republican Whip Notice.

9:00 AM - 5:00 PM. The National Institute of Standards and Technology (NIST) will hold a workshop on the security of electronic voting systems. See, notice in the Federal Register, September 9, 2005, Vol. 70, No. 174, at Pages 53635 - 53636. Location: NIST, Building 820, Room 152, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sabre v. Department of Transportation, No. 04-1073, a case regarding wether the DOT can expand its regulatory authority to include computer reservation systems (CRS). See, amicus curiae brief [25 pages in PDF] of the Competitive Enterprise Institute and the Progress and Freedom Foundation (PFF) in support of Sabre. Judge Rogers, Brown and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Committee on Homeland Security and Governmental Affairs will hold a business meeting to consider the nomination of Julie Myers to be an Assistant Secretary of Homeland Security. See, notice. Location: __.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committees will host a lunch titled "CMRS Issues". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, October 5, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Day two of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Columbus Day.

The Federal Communications Commission (FCC) and other federal offices will be closed for Columbus Day. See, Office of Personnel Management's (OPM) list of federal holidays.

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its proposed amendment to the .NET Registry Agreement. See, notice.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes presentations by John Chambers (Ch/CEO of Cisco Systems) and Thomas Noonan (P/CEO of Internet Security Systems). See, notice in the Federal Register, September 2, 2005, Vol. 70, No. 170, at Pages 52420 - 52421. Location: National Press Club, 529 14th St. NW, 13th Floor.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Open Web Application Security Project regarding the OWASP. See, notice and conference web site. Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding proposed changes to Federal Information Processing Standard (FIPS) Publication 201, titled "Standard for Personal Identity Verification of Federal Employees and Contractors. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53346 - 53347.

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