The Fine Print Boilerplate Contract Clauses Through The Litigator s Lens

October 2012 The Fine Print Boilerplate Contract Clauses Through The Litigator s Lens Bob Holtzapple Karen Kimmey Farella, Braun & Martel LLP

Discussion Topics Introduction Where will the fight be held? Forum Selection Clauses Whose law will govern? Choice & Conflicts of Law Clauses What damages will be available? Damage Waiver Provisions What rules will govern the fight? Jury Arbitration/ADR Clauses Who is going to pay for this? Attorneys Fees Clauses Can we make someone else pay? Indemnity Provisions Have any facts been admitted? Recitals Does the negotiation history matter? Merger & Integration Clauses 2

Introduction No such thing as the Perfect Agreement But most boilerplate can be improved Consider from the start -- What are the most likely disputes Which state s law might apply to the claim 3

Why This Matters -- An Example 8. Professional Fees. Our fees for professional services are based on the fair value of the services rendered. To help us determine the value of our services, our lawyers and legal assistants maintain time records for each client and matter. Our attorneys and legal assistants are assigned hourly reference rates which are based on years of experience, specialization, training and level of professional attainment.... We view these rates as only a benchmark, and not as the sole determinant, of the value of our services. Instead, the amount of our fee will be the fair value of the services as determined by the partner in charge of the matter; taking into account [list of factors]. As our billings take into account factors, like ultimate results, which may not be apparent at the time of periodic billings, our final billings for a matter may place more reliance on these factors than our regular periodic billings. 4

Another Example This Agreement shall be governed by the laws of the Commonwealth of Virginia as applied to agreement entered into between California residents and executed and performed in California. Any dispute arising out of or related to this Agreement shall be resolved based on the location of conflict and shall be resolved in courts with jurisdiction over said resolution. What does this mean? 5

Another Example Judge Patel said no one could tell. The court rules that, as a result of the remarkably sloppy drafting of the provision, it possesses no discernible meaning. The second sentence of the provision is legalese gibberish. Where is the "location of conflict"? Is it where the parties are located, where the contract is being performed, or where the alleged breach occurred? How exactly is a "dispute" resolved "based on the location of conflict"? Further, the stipulation that "[a]ny dispute... shall be resolved in courts with jurisdiction over said resolution" is a truism. As a matter of course, only a court with subject-matter jurisdiction over the dispute could resolve the dispute. Biogenex Laboratories v. Sentara Healthcare (N.D. Cal. March 11, 2010) 6

Forum Selection Clauses A forum selection clause sets the jurisdiction; it chooses where an action will be filed from among different states or nations It is not the same as a venue clause, which is purely an intrastate issue, involving the selection of a county or court in which to hold the trial It is not the same as a choice of law provision It cannot create federal jurisdiction where none exists 7

Forum Selection Clauses Example: Forum Selection: The parties agree to the exclusive jurisdiction and venue of the Supreme Court of the State of New York for New York County and/or the United States District Court for the Southern District of New York for the resolution of all disputes arising under this Agreement. What does the word exclusive mean? 8

Forum Selection Clauses The word exclusive makes the provision mandatory, meaning neither party can unilaterally opt out later. See Olinick v. BMG Entertainment, 138 Cal.App.4 th 1286 (2006) (holding clause mandatory) But compare: "The company [MTC] has expressly submitted to the jurisdiction of the State of California and United States Federal courts sitting in the City of Los Angeles, California, for the purpose p of any suit, action or proceedings arising out of this Offering." 9

Forum Selection Clauses Clause held not mandatory. Berg v. MTC Electronics Technologies Co., 61 Cal. App. 4 th 349 (1998) ( The clause in question in the instant action does not contain express language of exclusivity of jurisdiction or a mandatory place of litigation. Instead, the clause simply states that MTC submits to jurisdiction in Los Angeles. What is the practical difference between a mandatory forum selection clause and a clause through h which h a party submits to jurisdiction? i 10

Forum Selection Clauses Neither is completely dispositive. But mandatory clauses are much easier to enforce; test is merely whether clause is unfair or unreasonable. Burden on party opposing enforcement. Submission to jurisdiction clause is only one factor in forum non conveniens analysis. 11

Forum Selection Clauses Forum Selection Clause: You hereby consent to the exclusive jurisdiction and venue of courts in Kings County, Washington in all disputes arising out of or relating to the use of this Website. Does this mean the case has to brought in Washington s state court or can suit be brought in federal court? 12

Forum Selection Clauses Held: [T]he choice of the preposition... [is] determinative. In imposes a geographic limitation, not one of sovereignty.... Hence, the phrase courts in a state includes any court within the physical boundaries of the state including federal courts. Simonoff v. Expedia, 643 F.3d 1202 (9 th Cir. 2011) Of, in contrast, indicates origin, source, descent and the like See Doe 1 v. AOL LLC, 552 F.3d 1077 (9 th Cir. 2009) ( [T]he courts of Virginia limited parties to Virginia state court.) 13

Choice and Conflict of Law 8.12 Governing Law. This Agreement shall be governed and construed by the laws of the State of California 8.12 Governing Law. This Agreement shall be governed and construed by the internal laws of the State of California 8.12 Governing Law. This Agreement shall be governed and construed by the laws of the State of California without regard to its rules regarding conflicts of laws. 14

Choice and Conflict of Law -- Internal What does adding internal mean? 8.12 Governing Law. This Agreement shall be governed by the internal laws of the State of California No one knows although this is a pretty common construction, we ve located no case describing what it means in California. 15

Choice and Conflict of Law -- Without Regard What does adding without regard to its rules regarding conflicts of laws mean? Question is unclear in California; again, although this is a common phrase, we ve found no case interpreting it. In Delaware, however, there is a statute that specifically authorizes this language. g See 6 Del. C. Section 2708(a) 16

Choice and Conflict of Law -- What s Covered by the Choice? 8.12 Governing Law. This Agreement shall be governed and construed by the laws of the State of California without regard to its rules regarding conflicts of laws. What does this cover? 17

Choice and Conflict of Law -- CA In California, the clause includes all claims arising out of the relationship, including tort claims. See Olinick v. BMG Entertainment, 138 Cal. App. 4th 1286, 1299 (2006) ( Paragraph G provides: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of laws. In the absence of any limiting or qualifying language g in Paragraph G, we conclude the choice-of-law clause encompasses all causes of action arising from or related to [the] [A]greement, regardless of how they are characterized, including tortious breaches of duties emanating from the agreement or the legal relationships it creates. (Nedlloyd Lines B.V., supra, 3 Cal.4th at p. 470, italics added.). 18

Choice and Conflict of Law -- PA But this isn t true in all states. This Agreement shall be governed by substantive Pennsylvania law held NOT to cover tort claims SunGard Recovery Services v. Comcar Industries, Inc., 2003 US Dist. LEXIS 15673 (E.D. PA 2003) (holding terms of choice of law provision narrow in breadth, providing only that the Agreement is to be governed by Pennsylvania law; the clause does not speak to the parties pre-contractual relationship or other aspects of the parties relationship. ) (Claims for fraudulent inducement and negligent misrepresentation governed by Florida law) Texas also holds that this is a narrow construction (See Benchmark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719 (5 th Cir. 2003) (applying Texas law) 19

Limitations on Damages: Typical Clause Notwithstanding anything to the contrary in this Agreement or provided under any applicable law, no party hereto shall be liable to any other party, either in contract or in tort, for any consequential, incidental, indirect, special or punitive damages, including any lost profits relating to the breach or alleged breach hereof, whether or not the possibility of such damages has been disclosed to the other party in advance or could have been reasonably foreseen by such other party. 20

Limitation on Damages: Meaning What are direct and consequential damages? Direct damages: The necessary and usual result of the defendant s wrongful act; they flow naturally and necessarily from the wrong. Consequential damages: Those damages which, though they do not always or even usually flow from the breach of contract are, at the time of making the contract, recognized by the parties as those which in the particular case may result from a breach. Same as special Not the same as incidental Clear? 21

Limitation on Damages: Meaning Lost profits Seller contracts to provide buyer with computer servers. Seller delivers defective servers, which don t work. Because of this breach, buyer is unable to operate its business for a week while it searches for replacement servers. Buyer seeks lost profits. Property owner terminates a construction contract with a contractor. The contractor seeks the profits that he would have received if he had been allowed to fully perform the contract. 22

Limitation on Damages: Meaning Parties entered into a contract where Plaintiff would service and repair Defendant s MRI equipment. D terminated t early in breach of contract. t P proved what its profits would have been if it had been allowed to continue performing under the contract. Contract provided: Neither [party] will be liable to each other or any other party for any lost profits or any incidental, special or consequential damages relating to this agreement. Can plaintiff recover lost revenue under the contract? 23

Limitation on Damages: Meaning Court of Appeal overturned award for plaintiff. The contract at issue did not distinguish between the two types [direct and consequential lost profits]; it forbade the recovery of ANY LOST PROFITS. No exceptions were provided for.... Both consequential damages and direct damages (to the extent direct damages concern lost profits) are not recoverable under the contract. Imaging Systems Int l,, 490 S.E.2d 124 (Ct. App. Ga. 1997) See also Whittlestone, Inc. v. Handi-Craft Co., 2012 WL 3939629 (ND. Cal. 2012) (finding provision precluding lost profits ambiguous as applied to non-breaching seller) e 24

Limitation on Damages: Best Practices Don t assume that everyone has same understanding of direct and consequential Consider setting out particular scenarios and categories of damages Be careful with lost profits exclusions. Not all lost profits are consequential damages Don t use incidental and consequential as synonyms 25

Whose Rules Will Govern Fight? Jury Waiver Clauses Section 12. Waiver of Right to Jury. Each Party hereby waives any right it may have to a trial by jury in respect of any claim based upon, arising out of or in connection with this Agreement and the transactions contemplated hereby. Not enforceable in California Grafton Partners LP v. Superior Court, 116 P.3d 479 (Cal. 2005); see also Cadle Co. v. World Wide Hospitality Furniture, Inc., 144 Cal. App. 4th 504, 510 (2006) ( Gonshor insists that contractual provisions, such as the guaranty provision by which parties agree to waive a jury trial before the emergence of any dispute, are unenforceable. Gonshor's recitation of the legal principle is correct. ). Only options in California are now arbitration or judicial order of reference under CCP section 638 Generally enforceable in other states 26

Whose Rules Will Govern Fight? Jury Waiver Clauses common pitfalls Strictly construed Any ambiguity may well be fatal Gunn v. Palmieri, 589 N.Y.S.2d 577 (2d Dept. 1992) (finding provision stating "I waive my right to a trial by jury in any action, proceeding, or counterclaim in any way connected with this agreement or the plan" to be unambiguous and valid). 27

Arbitration Clauses Can you arbitrate? Yes, in most commercial contexts Maybe in lots of others Consumer contracts? No in NY Franchisor/franchisee agreements? CA statute says no, but FAA says yes. Courts often find arbitration clause unconscionable 28

Arbitration Provisions What, exactly, have you agreed to? 8(h). At the option of the Parties hereto, any and all disputes or controversies, whether in law or fact and of any nature whatsoever arising from or respecting this Agreement shall be decided by arbitration by the American Arbitration Association in accordance with the rules and regulations of that Association. [Complex procedure description omitted.] 29

Arbitration Who Decides? Be aware of who will decide arbitrability? FAA presumes that a court will decide. But by incorporating the rules, parties have decided that the arbitrator will decide. Cases say that incorporating rules that say that arbitrability is to be decided by the arbitrator is clear and unmistakable evidence that the parties intended d arbitrator t to determine arbitrability bilit PowerAgent Inc. v. EDS Corp., 358 F.3d 1187, 1191 (9 th Cir. 2004); Rodriguez v. American Technologies, Inc., 136 Cal. App. 4th 1110, 1123 (2006) 30

Arbitration Importance of Rules Note that incorporating a provider s rules effects more than just arbitrability. 9.9 Arbitration. [All disputes] shall be conclusively determined by arbitration conducted in California in Los Angeles County before a single arbitrator in accordance with the then current rules of JAMS applying the laws of the State of California.... Discovery shall not be permitted except to the extent allowed by the rules of JAMS. 31

Arbitration Creature of Contract Be Careful of what is included 9.9. Arbitration...Withinthirty(30)daysofhisor... thirty of his or her appointment, the arbitrator shall hear and decide the dispute submitted to arbitration hereunder and shall promptly prepare a written decision on the merits of the matters in dispute, which decision shall state the facts and law relied upon and the reason for the arbitrator s decision. 32

Arbitration -- Confidentiality 9.9 Arbitration... All arbitration proceedings shall be confidential, and neither the parties nor the arbitrator may disclose the content or the results of any arbitration hereunder without the written consent of all parties to the dispute. Is this necessary? Yes. But what about enforcement? Typically y a carve- out from the confidentiality 33

Arbitration and Mediation Common ADR procedure First Stage: Direct negotiations for a period of 30 days. Second Stage: Mediation, before a mutually acceptable mediator at a location to be agreed and to be conducted within 60 days thereafter. Third Stage: Binding arbitration pursuant to the AAA Commercial Rules 34

Arbitration and Mediation Consider something like this instead First Stage: Direct negotiations for a period of 30 days. Second Stage: Begin binding arbitration pursuant to AAA Commercial Rules Third Stage: Mediation, before a mutually acceptable mediator at a location to be agreed upon. Mediation must occur no earlier than 60 days before, and no later than 30 days before, arbitration ti hearing is first set to begin. 35

Attorneys Fees Clauses Section 9.9 Arbitration... Arbitrator shall specify the prevailing party in its award and the prevailing party shall be entitled to recover its reasonable attorneys fees and other reasonable expenses incurred in connection with the arbitration. Section 25. Attorneys Fees. If either party brings an action or proceeding to enforce the terms of this Agreement, the prevailing party in any such action, proceeding, trial or appeal shall be entitled to its reasonable attorneys fees. What does this mean? 36

Attorneys Fees Clauses Assume Claimant seeks $20 million in arbitration. Assume that arbitrator awards Claimant $1 million. Is the Claimant the prevailing party? 37

Attorneys Fees Clauses In California, probably yes Note that to be prevailing party under Section 1032, plaintiff must recover some money. (See Goodman v. Lozano, 47 Cal.4 th 1327 (2010) (plaintiff whose verdict offset to zero not entitled to attorneys fees) But the trial court does have discretion. (See Berkla v. Corel Corp., 302 F.3d 909 (9 th Cir. 2002) (plaintiff who recovered $23,502 not prevailing party where he sought $1.2 million) 38

Attorneys Fees Tort Claims Lease stated that prevailing party entitled to attorneys fees in any legal action or proceeding brought by either party to this agreement. Plaintiff has altercation with building manager; plaintiff sues manager and employer for assault, battery and negligence. Plaintiff accepts 998 offer and then moves for fees. Held, exceptionally broad clause allowed to recover her attorneys fees (See Chinn v. KMR Property Management, 166 Cal.App.4th 175 (2008).)) 39

Indemnification Provisions Indemnify Indemnify and Hold Harmless Indemnify and Defend and Hold Harmless What do these phrases require? 40

Indemnification Provisions Association agrees to indemnify, defend and hold agent... harmless against any and all claims, costs, suits and damages... arising i out of the performance of this agreement or in connection with the management and operation of the [Homeowners ] Association. Question: did this clause prevent the Homeowners Association from suing its property manager for allegedly breaching its contractual t obligations to properly care for the HOA s money? Trial court said yes, granting summary judgment for property manager. 41

Indemnification Provisions Reversed. Queen Villas Homeowners Assn. v. TCB Property Management, 149 Cal. App. 4th 1, 9 (2007) Are the words indemnify and hold harmless synonymous? No. One is offensive and the other is defensive even even though both contemplate third party liability situations. Indemnify is an offensive right a sword allowing an indemnitee to seek indemnification. Hold harmless is defensive: The right not to be bothered by the other party itself seeking indemnification. 42

Indemnification Provisions A clause containing the words indemnify and hold harmless generally obligates the indemnitor to reimburse the indemnitee it for any damages the indemnitee becomes obligated to pay third persons. Carr Business Enterprises, Inc. v. City of Chowchilla, 166 Cal. App. 4th 14, 20 (2008). But, whether an indemnity provision covers a given claim turns on contractual t interpretation t ti and the intent of the parties. 43

Indemnification Provisions In Carr Business Enterprises, Inc. v. City of Chowchilla, 166 Cal. App. 4th 14, 19-20, 23 (2008), the court determined that in spite of the inclusion of attorney fees in the indemnification provision, the following clauses are standard and cover third party claims. They do not authorize attorney fees for a suit relating to the contract. 44

Indemnification Provisions [Carr] shall indemnify and hold harmless [Chowchilla] from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of [Carr], any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of [Chowchilla]. (Italics added.) [Carr] agrees to indemnify and save harmless [Chowchilla], Giersch & Olson, Inc., their agents and employees, for and against all loss or expense (including costs and attorney fees) on account of injury or death of persons employed by [Carr], or his subcontractors, his or their agents or employees; injury to or death of any other person; or injury to, damage or destruction of property, real or personal, including loss of use thereof. 45

Indemnification Provisions But, in Zalkind v. Ceradyne Inc.,194 Cal. App. 4th 1010 (2011), the court interpreted the indemnity provision at issue to embrace claims for breach of contract between the parties. Ceradyne entered into an agreement to purchase the assets of Quest Technology LP, a limited partnership owned by the Zalkinds. The Zalkinds and Quest later sued Ceradyne for breach of the agreement. Ceradyne asserted a cross-complaint for securities fraud. 46

Indemnification Provisions The Indemnification clause provided that Ceradyne: shall indemnify, hold harmless and defend the Selling Parties and their respective successors and assigns from and against any and all Damages that arise from or are in connection with: [ ] (a) Any breach of or inaccuracy in any of the representations or warranties of any of [Ceradyne] contained in Section 6 of this Agreement or in any of the certificates delivered hereunder by or on behalf of [Ceradyne] e] pursuant to such representations ese s or warranties; a or [ ] (b) Any breach or default by [Ceradyne] of its covenants or agreements contained in this Agreement. Clause also provided that Quest and Stanley Zalkind agreed to indemnify, hold harmless and defend Ceradyne from and against any and all Damages. Damages was defined d to mean (i) demands, claims, actions, suits, investigations and legal or other proceedings brought against any indemnified party or parties, and any judgments or assessments, fines or penalties rendered therein or any settlements thereof, and (ii) all liabilities, damages, losses, Taxes, assessments, costs and expenses (including, without limitation, reasonable attorneys' and accountants' fees and expenses) incurred by any indemnified party or parties, to the extent not reimbursed or paid for by insurance, whether or not they have arisen from or were incurred in or as a result of any demand, claim, action, suit, assessment or other proceeding or any settlement or judgment. 47

Indemnification Provisions The court found that the language extended indemnification to any and all damages incurred by the Zalkinds and Quest arising i from Ceradyne s breach of the agreement. And, because the agreement had a provision requiring any claim for indemnification to be filed within 24 months of the closing date, the court found the breach of contract claim was time-barred because the breach of contract claim was an indemnification claim within the meaning of the agreement. 48

Indemnification Provisions Duty to Defend- when does it arise? Crawford v. Weather Shield Mfg., 44 Cal. 4th 541 (2008) Weather Shield Mfg. contracted with JM Peters Co (JMP) to supply windows for a residential building project. Weather Shield promised (1) to indemnify and save [JMP] harmless against all claims for damages, loss, and/or theft growing out of the execution of [Weather Shield's] work, and (2) at [its] own expense to defend any suit or action brought against [JMP] founded upon the claim of such damage[,] loss, or theft. (Italics added). Owners sued JMP, Weather Shield and others for construction defects. JMP cross-complained for indemnity and defense. JMP settled pre-trial. At trial, jury found Weather Shield was NOT negligent. Issue given Weather Shield was not negligent, did it owe JMP for either a portion of the settlement amount or its defense costs? 49

Indemnification Provisions Trial court said Weather Shield owed nothing for indemnity but did owe JMP for its costs of defense. Weather Shield appealed. Supreme Court affirmed. Focusing on the terms of the contract, the Supreme Court found that Weather Shield had two distinct obligations: (1) a duty to indemnify and (2) a duty to defend. A contractual duty to defend another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee s defense against such claims. 44 Cal.4 th at 553-54. Although the Supreme Court held that this separate duty to defend was broader than that created by the duty to indemnify, what real world significance that has is unclear. 50

Indemnification Provisions Cal. Civ. Code Section 2778 provides that one providing an indemnity is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity. Crawford stressed that this provision obligates the indemnitor to defend, upon notice from the outset. Implicit in this understanding of the duty to defend an indemnitee against all claims embraced by the indemnity,..., is that the duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed. This duty, as described in the statute, therefore cannot depend on the outcome of that litigation. But, as Crawford also noted, Section 2778 by its terms applies unless a contrary intention appears. Thus, parties can, if they choose, agree to indemnify but expressly limit or exclude any corresponding obligation to defend. 51

What Do Recitals Really Mean? Need to be reviewed carefully CA Evid. Code Section 622: Recitals in Written Instruments. The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration. 52

Integration Clauses Section 11.8 Final Agreement. This is the final, complete and entire agreement between the parties and it supersedes any and all prior or contemporaneous agreements, communications, statements or representations between the parties, either oral or in writing, relating to the subject matter of this Agreement. So, what does this mean? 53

Integration Clauses Choice of Law is Critical Parol Evidence Rule is Substantive Law that governs the contract will provide the Parol Evidence Rule Can be the difference between summary judgment and a jury trial See Wilson v. Arlington Co. v. Prudential, 912 F.2d 366 (9 th Cir. 1990) (per Kozinski: Yes Virginia, there is a parol evidence rule. ) 54

Integration Clauses and Fraud Does an integration clause bar a claim for fraud in the inducement? No, says Greenspan Volkswagen, Inc. v. Ford Motor Land Dev. Co., 32 Cal.App.4 th 985 (1995) ( party may claim fraud in the inducement of a contract containing a provision i disclaiming i i any fraudulent misrepresentations and introduce parol evidence to show such fraud ) But, while acknowledging this rule, the court in Hinesley v. Oakshade Town Center, 135 Cal. App. 4th 289, 301 (2005) noted the rule that this kind of contract provision does not, as a matter of law, preclude a finding of fraud does not mean the contract provision is in every case irrelevant and that it was a factor to consider in determining justifiable reliance. 55

Integration Clauses An Example (a) Integration; Representations And Warranties Regarding Reliance. This Agreement contains the entire and only understanding between the Parties and supersedes any and all prior and/or contemporaneous oral or written negotiations, agreements, representations and understandings. Each Party represents that no promise, statement or inducement has been made that caused it to sign this Agreement, other than those expressly set forth in this Agreement. Each Party represents that any and all representations that Party considers to be material to its decision to enter this Agreement have been included in this Agreement, and each Party agrees that any alleged representation not included in this Agreement was not material to its decision to enter into this Agreement. This Agreement shall be accepted as conclusive proof that any reliance by any Party on any alleged representation not included in this Agreement shall not be justified. Each Party further agrees that no other Party owes an obligation to disclose any fact or, if such obligation exists, each Party relieves the other Parties of such obligation. In any action where any Party contends that any other Party has made any representation, or failed to disclose any fact, and such contention is inconsistent with this paragraph, the court shall summarily dismiss any such claim, even if the applicable law would not support such summary dismissal. Without limitation, the Parties waive the holding in Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985 and agree that in any dispute between them, the Court shall not follow Greenspan or any other case with a similar holding, but shall instead follow the holding in Fisher v. Pennsylvania Life Co. (1977) 69 Cal.App.3d 506, eveniffisher has been criticized, overruled or otherwise held to be contrary to California law. 56

Contacts Bob Holtzapple and Karen Kimmey are experienced trial lawyers who have litigated cases that turned on the interpretation of clauses like those discussed in these slides. Bob or Karen would be happy to discuss any questions that you may have. Feel free to contact them directly. Bob Holtzapple l Karen Kimmey bholtzapple@fbm.com kkimmey@fbm.com 415-954-4939 415-954-4407 57