N.C. Business Court Opinions, August 30, 2023 – September 19, 2023
North Carolina ex rel. Stein v. MV Realty PBC, LLC, 2023 NCBC 59 (N.C. Super. Ct. Aug. 30, 2023) (Davis, J.)
Key Terms: homeowner; listing agreement; preliminary injunction; House Bill 422; N.C.G.S. § 93A-85.2; covenant running with the land; UDTPA; liquidated damages; unenforceable penalty; notice of lis pendens; lien
The Attorney General brought suit against MV Realty asserting statutory claims for unfair or deceptive trade practices, unlawful telephone solicitation practices, unfair debt collection practices, and usurious lending practices, all based on the Homeowner Benefit Agreement (“HBA”) program which MV Realty markets to North Carolina homeowners. Under the program, MV Realty offers homeowners an immediate cash payment in exchange for the homeowners entering into an HBA, which grants MV Realty the exclusive right to serve as the homeowner’s listing agent if they decide to sell their home. Under the terms of the HBA, the agreement is binding on the homeowner and their heirs for forty years and, if breached, entitles MV Realty to an Early Termination Fee (“ETF”) of 3% of the fair market value of the home. The HBA further provides that its obligations constitute covenants running with the land and any amounts owed thereunder due to breach are secured by a security interest in and lien against the home. The State sought a preliminary injunction and submitted various exhibits in support thereof, including fourteen affidavits by homeowners claiming to have been misled by the program.
The Court began by noting that the newly enacted N.C.G.S. § 93A-85.2, which effectively prohibits MV Realty from entering into new HBAs with North Carolina homeowners going forward, did not govern the Court’s determination of whether the State was entitled to an injunction regarding MV Realty’s enforcement of existing HBAs. Turning to the State’s arguments, the Court first determined that the State had shown a reasonable likelihood of success on the merits regarding its argument that the ETF was an unlawful, and therefore unenforceable, penalty. Second, the Court found that the State was likely to succeed on its UDTP claim as to those aspects of the HBA program which created a cloud on the title of homeowners, namely the recordation of a memorandum of the HBA and the filing of a notice of lis pendens. Third, the Court concluded that the State had shown a likelihood of success on its claim that the MV Realty program possessed a capacity to deceive, and had in fact deceived, homeowners because the HBA did not sufficiently put homeowners on notice regarding a potential lien or the ramifications of recordation of the memorandum, which in any event was likely unlawful. For all of these reasons, the Court concluded that even under previous North Carolina law, the State was entitled to a preliminary injunction because it had adequately shown a likelihood of success on the merits of its UDTP claim and that the act or practice complained of adversely affected the public interest.
United Therapeutics Corp. v. Liquidia Techs., Inc., 2023 NCBC 60 (N.C. Super. Ct. Aug. 31, 2023) (Earp, J.)
Key Terms: motion to reconsider; Rule 54(b); clear error; motion to amend; undue delay; unfair prejudice
In a previous opinion, discussed here, the Court granted in part and denied in part Plaintiff’s motion to amend its complaint a second time. Plaintiff moved the Court to reconsider its ruling and permit Plaintiff to amend its complaint to add a declaratory judgment claim with respect to Defendant Roscigno’s employment agreements.
Rejecting Plaintiff’s argument that amendment should always be allowed unless some material prejudice is demonstrated, the Court denied the motion. Plaintiff had offered no reasonable explanation for its delay in asserting the new declaratory judgment claim. Moreover, as the Court had previously found, the proposed claim would increase the stakes of the litigation and likely require additional discovery, thereby unfairly prejudicing Defendants.
Gvest Real Est., LLC v. JS Real Est. Invs., LLC, 2023 NCBC 61 (N.C. Super. Ct. Sept. 12, 2023) (Conrad, J.)
Key Terms: summary judgment; declaratory judgment; corporate records; moot; fiduciary duty; majority member; fraudulent inducement; alter ego liability; punitive damages; UDTPA; in or affecting commerce; capital raising
In this dispute arising from a business relationship gone bad, the three members of Yards at NoDa, LLC, with Gvest on one side and JS Real Estate and TR Real Estate on the other, asserted competing claims relating to corporate governance issues, breach of fiduciary duties, and fraud. Both sides moved for summary judgment.
Defendants’ Motion for Summary Judgment
Gvest’s Claim for Declaratory Judgment. Gvest sought a declaratory judgment that it was the sole member of Yards at NoDa due to JS Real Estate’s and TR Real Estate’s previous attempts to transfer their membership rights. However, since Gvest had not offered any evidence to show that the requirements of Yards at Noda’s operating agreement to transfer membership had been satisfied, any attempted transfer was null and void. Accordingly, the Court granted summary judgment to Defendants on this claim.
Gvest’s Demand for Corporate Records. The Court dismissed as moot Gvest’s claims seeking to enforce its contractual and statutory rights to corporate records because the evidence showed that Gvest had already received all requested documents.
Gvest’s Claims for Breach of Fiduciary Duty and Constructive Fraud. Rejecting Gvest’s argument that JS Real Estate’s and TR Real Estate’s collective ownership of 75% of Yards at NoDa created a fiduciary duty owed to Gvest as the minority member, the Court concluded that Gvest had not shown a genuine issue of material fact regarding the existence of a fiduciary relationship and therefore granted summary judgment to Defendants on these claims.
Gvest’s Claims for Fraudulent Inducement and Negligent Misrepresentation. The Court granted Defendants summary judgment on these claims because Gvest failed to come forth with evidence to controvert Defendants’ evidence that the alleged misrepresentations were, in fact, true and that Gvest had not reasonably relied on any misrepresentation.
Gvest’s Claims for Alter Ego Liability and Punitive Damages. Because summary judgment had been entered on all of Gvest’s other claims, the Court also entered summary judgment on Gvest’s claims for alter ego liability and punitive damages since neither can stand alone.
Gvest’s Motion for Summary Judgment
Defendants’ Claim for Breach of Fiduciary Duty. The Court granted Gvest summary judgment on this claim as to all Defendants except Yards at NoDa. Regarding Yards at NoDa, a genuine issue of material fact existed as to whether Gee (Gvest’s principal), as the alter ego of Gvest, acted in bad faith or was grossly negligent in his duties as manager.
Defendants’ Claim for Fraudulent Inducement. The Court denied Gvest summary judgment on Defendants’ claim that Gvest had fraudulently induced them to invest in Yards at NoDa. Although the Court agreed with Gvest that some of Defendants’ allegations could not form the basis of the claim, it declined to consider Gvest’s arguments regarding other allegations because Gvest failed to make the arguments in its opening brief.
Defendants’ Claim for Unfair or Deceptive Trade Practices. The Court granted Gvest summary judgment on this claim because the alleged misconduct involved raising capital for Yards at NoDa and was therefore not in or affecting commerce.
Mauck v. Cherry Oil Co., 2023 NCBC 62 (N.C. Super. Ct. Sept. 15, 2023) (Davis, J.)
Key Terms: summary judgment; breach of fiduciary duty; put/call provision; shareholders’ agreement; breach of contract; notice of shareholders’ meeting; N.C. Gen. Stat. § 55-1-41(c)
This action concerns a dispute among family members over the management and future direction of their business, Cherry Oil. Plaintiffs, the minority shareholders, alleged that the Cherrys, the majority shareholders, had engaged in various misconduct in the management of Cherry Oil. During the course of the dispute, Cherry Oil called the shares of Plaintiffs pursuant to the put/call provision in the Shareholders’ Agreement. After a number of Plaintiffs’ claims were dismissed at the Rule 12(b) stage, Defendants moved for summary judgment on Plaintiffs’ remaining claims and asked for the Court to supervise the process for finalizing the purchase of the Plaintiffs’ shares.
Breach of Fiduciary Duty. The Court had previously determined that the Cherrys, as majority shareholders, owed a fiduciary duty to the Plaintiffs, as minority shareholders. Here, however, the Court determined that the Plaintiffs had failed to offer sufficient evidence regarding breach of that duty to survive summary judgment. Based on the protections of the put/call provision in the Shareholders’ Agreement, the Court rejected the Plaintiffs’ argument that taking away their management roles within Cherry Oil frustrated their reasonable expectations. The Court also determined that any actions taken by Defendants relating to the Plaintiffs’ status as employees or officers could not serve as the basis for a breach of fiduciary duty claim arising from the Plaintiffs’ status as minority shareholders. Finally, the Court concluded that there was insufficient evidence in the record to support the Plaintiffs’ assertions that Defendants had hid corporate records, improperly refused to issue a dividend, and relied on the Plaintiffs’ personal guaranties without permission. Accordingly, the Court granted Defendants’ summary judgment on this claim.
Breach of Contract. The Plaintiffs initially alleged that Defendants breached the Shareholders’ Agreement by failing to take the steps necessary to close the purchase of their shares under the put/call provision. However, in opposing summary judgment, the Plaintiffs contended that their breach of contract claim was actually based on no valid call vote ever taking place due to a failure to provide sufficient notice of the meeting and the failure to establish a price prior to the call. The Court concluded that the claim failed on any of those theories. First, the record showed that it was the Plaintiffs, not the Defendants, who were primarily responsible for any lack of progress on closing the transaction. Second, the Court concluded that notice of the shareholders meeting was sufficient because N.C. Gen. Stat. § 55-1-41(c), which provides that written notice is effective when deposited in the mail, superseded the provision in Cherry Oil’s bylaws that notice was not effective unless delivered not less than ten days before the meeting. Third, the Court determined that the language of the Shareholders’ Agreement did not support the Plaintiffs’ argument that the valuation of their shares was a condition precedent to the call vote. Accordingly, the Court granted Defendants’ summary judgment on this claim.
Motion for Supervision. Acknowledging that it would eventually need to resolve the parties’ dispute regarding the call process, the Court deferred ruling on the motion for supervision to allow the parties to submit new briefs now that the motion for summary judgment had been decided.
Spivey v. Smith, 2023 NCBC 63 (N.C. Super. Ct. Sept. 18, 2023) (Earp, J.)
Key Terms: judgment on the pleadings; Rule 12(c); breach of fiduciary duty; reverse veil piercing; fraud; Rule 9(b); constructive fraud; statute of limitations; discovery rule; standing; Rule 12(b)(1); Barger exceptions; marital trust; constructive trust
This action involves a dispute between Plaintiff Spivey and the co-owner of Spivey’s late husband’s trucking business. Spivey is the widow of Thomas Spivey, who founded Inman Trucking, Inc. At some point in the company’s history, Thomas Spivey hired Defendant Smith. In 1984, Thomas Spivey formed Inman Management, Inc., an entity that retains ownership of the trucks used by Inman Trucking. Spivey is the sole owner of a company called KS Transportation, LLC, which owns one truck. Smith is the sole owner of a company called Desparado, Inc. Upon Thomas Spivey’s death, Spivey inherited 75% of Inman Management through a marital trust, while Smith owned the remaining 25%. During the last years of Thomas Spivey’s life, Smith took over operations of Inman Trucking and Inman Management. Following Thomas Spivey’s death, Smith formed Inman Transportation, LLC, which was owned by Smith (51%) and Spivey (49%). Spivey alleges that Smith took steps to seize control of the businesses and render her ownership interests worthless. Additionally, Spivey alleges that Smith either used KS’s truck without paying KS, or refused to use the truck to damage Spivey, its sole owner. Spivey also alleges that Smith siphoned off Inman Management’s assets to Desparado. Kathy Spivey and KS Transportation filed suit against Smith, the Inman entities, and Desparado, alleging breach of fiduciary duty and fraud against all parties. Defendants moved for judgment on the pleadings and dismissal for lack of standing.
Breach of Fiduciary Duty. The Court summarily granted the motion for judgment on the pleadings as to the breach of fiduciary duty claims by KS against the Inman entities, as the complaint did not allege that these entities owed KS a fiduciary duty. The Court also granted the motion as to the claims by Spivey against the Inman entities, on the basis that a corporation does not owe fiduciary duties to its shareholders, nor do managers or officers of an LLC owe a fiduciary duty to the LLC’s members. However, the Court denied the motion as to Spivey’s breach of fiduciary duty claim against Smith with regards to Inman Management. The Court concluded that despite the fact that Smith was the minority shareholder, the facts alleged regarding Smith’s control and Spivey’s poor health were sufficient to show a de facto fiduciary relationship at this stage. Spivey’s claim against Smith with regards to Inman Transportation also survived because the complaint sufficiently alleged that Smith was in control of the company based on his majority voting interest and management position. Lastly, the Court addressed Spivey’s attempt to assert a breach of fiduciary duty claim against Desparado based on a reverse veil piercing theory. The Court concluded that Spivey failed to allege any of the factors North Carolina courts consider when determining whether a party has enough control to pierce the corporate veil. Thus, the motion was granted as to Desparado.
Fraud. The Court granted the motion as to Plaintiffs’ claim for affirmative fraud, as the complaint’s allegations failed to meet the heightened pleading standard required under Rule 9(b). The Court also granted the motion as to KS’s claim for fraudulent concealment against Smith, as KS failed to allege that Smith owed it a duty to disclose. However, the Court denied the motion as to Spivey’s fraudulent concealment claim against Smith, as Spivey sufficiently alleged that Smith had a duty to disclose as a fiduciary and had prevented her from discovering fraudulent conduct to her detriment.
Statute of Limitations. Defendants challenged Plaintiffs’ claims on the basis that the suit was filed after the statute of limitations had run. The Court rejected this argument, as the discovery rule applied to both the fiduciary duty and fraud claims, pursuant to which the statute of limitations did not begin to run until Spivey knew, or should have known, that her rights had been violated. In addition, the Court determined that Spivey had sufficiently alleged a constructive fraud claim, even though not labelled as such, which was subject to a ten-year statute of limitations.
Standing. Pursuant to Rule 12(b)(1), Defendants challenged Spiveys’ standing to bring claims: (1) directly, versus derivatively; and (2) as the beneficiary of a marital trust. The Court held that Spivey possessed standing to sue directly, rather than derivatively, because she alleged a breach of fiduciary duty as well as a harm that is separate and distinct from that suffered by other shareholders. Secondly, the Court held that the complaint’s allegations support the conclusion that Spivey has standing to sue as the real party in interest, as she claims to be “a majority owner by virtue of a marital trust.” The complaint also lacked any allegation that a third-party trustee controlled her interest at any time.
Constructive Trust. Lastly, the Court granted Defendants’ motion to dismiss Spivey’s claim for a constructive trust, as a constructive trust is a remedy, not a claim.
Wright v. LoRusso, 2023 NCBC 64 (N.C. Super. Ct. Sept. 19, 2023) (Conrad, J.)
Key Terms: summary judgment; minority member; majority member; derivative claim; limited liability company; operating agreement; fraud; negligent misrepresentation; breach of contract; breach of fiduciary duty
Cinch.Skirt and its minority members asserted more than a dozen direct and derivative claims against the LLC’s majority member and manager based on her alleged abuse of her positions. Defendant moved for summary judgment on some, but not all, of Plaintiffs’ claims.
Unjust Enrichment and Punitive Damages. – The Court summarily denied summary judgment on Plaintiffs’ claims for unjust enrichment and punitive damages because the Defendant’s brief did not address those claims.
Fraud and Negligent Misrepresentation. – These claims, based on allegations of self-dealing and misuse of company funds, were brought both as derivative and direct claims. In her opening brief, Defendant challenged the allegation that she improperly paid herself a distribution by presenting deposition testimony from Plaintiffs in which they admitted that she legitimately earned the payment. Because Plaintiffs failed to provide contradictory evidence or controvert Defendant’s characterization of their testimony, the Court found no genuine issue of material fact regarding the payment, and granted Defendant’s motion to the extent that the claims were based on the payment. The Court declined to consider additional arguments raised in Defendant’s reply brief and therefore denied the motion as to these claims in all other respects.
Breach of Contract – Plaintiffs asserted direct and derivative claims for numerous breaches of the purchase agreement, the operating agreement, and certain oral agreements. Regarding the purchase agreement, the Court agreed with the Defendant that since she was not a party to the agreement, having only signed it as a representative of the LLC, she could not be held liable for any breach. Regarding the operating agreement, the Court denied the motion as to the breaches which Defendant failed to address beyond a single conclusory sentence. As to an alleged breach related to the termination of Plaintiff Stansell from his position with the LLC, the Court found that there was an issue of fact as to Stansell’s role at the company and whether Defendant had the unilateral authority to terminate him. Accordingly, the Court denied the motion as to this breach as well. Regarding breaches of two “oral agreements” made at member meetings, Defendant argued the agreements were invalid due to a provision of the operating agreement which prohibited oral operating agreements. The Court was unpersuaded because Defendant did not explain why the agreements were not permissible member actions, and, in any event, some evidence existed that the agreements had been memorialized in writing. Thus, the Court denied the motion as to the oral agreements.
Breach of Fiduciary Duty – Defendant moved for summary judgment on both the direct and derivative claims for breach of fiduciary duty; however, because Defendant did not brief the derivative claim, the Court denied the motion as to it. As to the direct claim, the Court agreed with Defendant that she did not owe a fiduciary duty to the Plaintiffs, who were minority members. Although Defendant held a numerical majority interest, she did not have a controlling interest due to various protections in the operating agreement. Similarly, her position as manager did not create a fiduciary duty due to the safeguards in the operating agreement. Accordingly, the Court granted the motion as to the direct claim for breach of fiduciary duty.
Caliber Packaging & Equip., LLC v. Swaringen, 2023 NCBC Order 42 (N.C. Super. Ct. Sept. 8, 2023) (Earp, J.)
Key Terms: subpoena duces tecum; Rule 45; motion to quash; motion for a protective order
Plaintiffs and its former affiliate Prism are competitors in the industrial packaging industry. After the entities parted ways, Plaintiffs sued Defendant Swaringen, a former employee, for taking their trade secret information allegedly with the purpose of using it to entice prospective employers, including Prism. In response to a subpoena duces tecum served on it, Prism objected and moved to quash and for a protective order.
Prism first argued that the requests were unduly burdensome because Plaintiffs had not exhausted other means of obtaining the information and because of the effort required to respond. The Court determined that since the other potential sources of information were adverse to Plaintiffs, or potentially unreliable, Plaintiffs should not be required to exhaust other sources of information before seeking it from Prism. Prism also failed to show that responding to the requests would unduly burden it with regards to time, effort, or expense; however, the Court found that the burden on Prism to produce certain confidential business information outweighed Plaintiffs’ need for the information, at least on the present record.
Prism also argued that the requests were irrelevant to the case and were instead being sought for use in pending litigation in Illinois. The Court rejected this argument, finding that the requests were reasonable given the factual allegations.
Lastly, Prism argued that because it had entered into a joint defense agreement with Swaringen, certain requested documents, namely documents regarding the payment of Swaringen’s legal fees and any indemnity agreements, were protected by the attorney-client privilege or the work product doctrine. Noting that fee agreements are not automatically protected by attorney-client privilege, the Court advised that should Prism take the position that content within a joint defense agreement was privileged, it would need to produce a privilege log.
Accordingly, the Court denied Prism’s motion except with respect to the requests that sought confidential business information.
North Carolina ex rel. Stein v. MV Realty PBC, LLC, 2023 NCBC Order 43 (N.C. Super. Ct. Sept. 18, 2023) (Davis, J.)
Key Terms: preliminary injunction; homeowner benefit agreement; early termination fee; termination of memoranda; cancellation of lis pendens
On August 30, 2023, the Court granted the State’s motion for a preliminary injunction but deferred setting out the specific terms of the injunctive relief to allow the parties an opportunity to submit proposed orders and supporting briefs. This order sets out the terms of the relief as follows: Defendants are immediately enjoined from 1) recording any memorandums of HBAs entered into prior to August 24, 2023; 2) asserting that MV Realty holds a valid lien or other interest based on an HBA; 3) recovering any ETF or penalty relating to an HBA; 4) filing or indexing a lis pendens on any property subject to an HBA; and 5) commencing or continuing any legal action to enforce an ETF or interest arising from an HBA. The Court further ordered that the Defendants shall record terminations of any memoranda filed on properties based on an HBA and file cancellations of all lis pendens filed on properties based on an HBA.
Found. Bldg. Materials, LLC v. Conking & Calabrese, Co., 2023 NCBC Order 44 (N.C. Super. Ct. Sept. 19, 2023) (Earp, J.)
Key Terms: temporary restraining order; emergency relief; speculation; expedited discovery
On July 10, 2023, Defendants answered Plaintiff’s complaint against them and filed counterclaims and a third-party complaint. On September 15, Defendants moved for a temporary restraining order and a preliminary injunction, and sought expedited discovery.
The Court denied the TRO motion, because 1) Defendants’ several-month delay in seeking relief undercut their claim that there was an immediate need for emergency relief; and 2) their affidavits did not provide a sufficient evidentiary basis for a TRO because they were based on speculation and hearsay. The Court also denied Defendants’ motion for expedited discovery finding that there was no justification for expediting discovery based on the record currently before the Court.
Value Health Solutions, Inc. v. Pharmaceutical Research Assoc., Inc., 2023 N.C. LEXIS 585, 2023 WL 5658848 (N.C. 2023) (Barringer, J.)
Key Terms: negligent misrepresentation; Rule 9(b); heightened pleading; fraud; 12(b)(6); summary judgment; APA; implied covenant of good faith and fair dealing; UDTPA; aggravating circumstances; motion to amend; discovery dispute; BCR 10.9; dissent
Plaintiff VHS is a software company, founded by Plaintiff Parthasarathy, which developed software applications for use in the clinical trial process. Defendants entered into an asset purchase agreement to acquire the software, under which additional contingent payments would be made if certain milestones were met. Following a dispute regarding payments under the APA, Plaintiffs brought suit alleging breach of the APA and various fraud-based claims. After all claims were disposed of, Plaintiffs appealed to the North Carolina Supreme Court from several orders of the Business Court.
12(b)(6) Dismissals. The Court first addressed the order dismissing Plaintiffs’ fraud- and misrepresentation-based claims. The fraud by omission and promissory fraud claims were properly dismissed because, although briefed, they were not pleaded in the amended complaint. The pre-APA fraud and fraudulent inducement claims were also properly dismissed because the amended complaint did not specify the time, place, and content of the misrepresentations, or who specifically made them. Finally, the Court agreed with the line of decisions from both the Business Court and North Carolina’s federal courts that negligent misrepresentation claims must meet the heightened pleading standard of Rule 9(b). Since Plaintiffs had failed to do so, this claim was properly dismissed as well.
Summary Judgment. Turning to the trial court’s order granting summary judgment to Defendants on Plaintiffs’ claims for breach of the APA, the Court, applying Delaware law, affirmed in part and reversed in part. The Plaintiffs had claimed that Defendants breached the implied covenant of good faith and fair dealing by failing to reasonably determine completion of certain milestones set forth in the APA. The Court, however, affirmed summary judgment in this regard because there was no “contractual gap” regarding these milestones and thus the implied covenant was inapplicable. Nonetheless, the Court reversed with regard to breach of other express provisions, finding that there was a genuine issue of material fact.
As to Plaintiffs’ claims of intentional misrepresentation and fraudulent inducement based on representations made in the LOI, the Court affirmed summary judgment in favor of Defendants because the LOI was non-binding, contemplated a more complete future agreement, and expressly disclaimed any reliance on its contents. The Court also affirmed summary judgment in Defendants’ favor on Plaintiffs’ claims of intentional misrepresentation and fraudulent inducement based on PRA’s post-APA statements regarding possible amendments to the APA. Although the parties did not ultimately reach an agreement regarding the amendments, Plaintiffs failed to present sufficient evidence that PRA knew the statements were false at the time they were made. Finally, the Court affirmed summary judgment in favor of Defendants on Plaintiffs’ UDTPA claims which alleged that Defendants violated the UDTPA by negotiating the APA under false pretenses, interfering with the APA milestones, and terminating Parthasarathy’s employment. The Court agreed with the trial court that there was insufficient support for a finding of “substantial aggravating circumstances” to elevate any breach of contract to an unfair trade practice or of egregious conduct to overcome the presumption against UDTPA claims in an employer-employee context.
Motion to Amend. The Court affirmed the trial court’ denial of Plaintiffs’ second motion to amend the complaint, concluding that the trial court had plentiful justification for denying the motion, including that the Plaintiffs had previously amended their complaint, the amendment contained extensive revisions, discovery had closed, and the parties had already fully briefed the motion to dismiss the first amended complaint.
Discovery. Lastly, the Court addressed Plaintiffs’ discovery request, which the trial court had found unduly burdensome. The Court affirmed, rejecting Plaintiffs’ argument that the trial court had improperly converted their emailed request for assistance with a discovery dispute pursuant to BCR 10.9 into a motion to compel. The Court noted, however, that given the Court’s partial reversal of the summary judgment order, additional discovery may be necessary on remand.
Dissent in Part. Two Justices dissented in part with regards to the applicability of Rule 9(b) to negligent misrepresentation claims and the applicability of the implied covenant of good faith and fair dealing to the breach of contract claims.
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