UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Guardian Angel Credit Union,

on its own behalf and on 

behalf of a class of persons

similarly situated

 v. Case No. 08-cv-261-PB 

Opinion No. 2011 DNH 111

MetaBank and

Meta Financial Group

MEMORANDUM AND ORDER

This case was spawned by the actions of a rogue bank 

employee who used her position at the bank to induce 

approximately fifty different institutions to transfer funds to 

the bank under the pretext that the funds would be used to 

purchase certificates of deposit (“CDs”). The employee then 

diverted the money into accounts at the bank that were under her 

control and issued fraudulent CDs in the bank’s name. The 

scheme was eventually detected and the employee is now in 

prison. The current action is an attempt by a class of victims 

to recover against the bank. The named plaintiff is Guardian 

Angel Credit Union. The defendants are MetaBank and its parent, 

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Meta Financial Group.1 The rogue employee is Charlene 

Pickhinke.

Guardian Angel asserts three causes of action on behalf of 

the class. First, it argues that MetaBank is liable for breach 

of contract because Pickhinke had apparent authority to bind 

MetaBank to agreements to issue the CDs. Second, it claims that

MetaBank is liable for negligently supervising Pickhinke. 

Finally, it argues that MetaBank is vicariously liable for 

conversion and other torts committed by Pickhinke. Guardian 

Angel also seeks to recover attorney’s fees on behalf of the 

class. 

The matter is before me on cross-motions for summary 

judgment. 

I. BACKGROUND

MetaBank is a federally chartered bank insured by the 

Federal Deposit Insurance Corporation and headquartered in Storm 

Lake, Iowa. Decl. of Danny O. Reynolds, Doc. No. 103-2

 

1 MetaBank was formerly known as First Federal Savings Bank of 

the Midwest. In this Memorandum and Order, I refer to both 

defendants collectively as MetaBank. 

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("Reynolds Decl."), at ¶¶ 4-5. Pickhinke was an employee of the 

bank for approximately twenty-eight years, working at its Sac 

City, Iowa branch. Id. at ¶ 7. Pickhinke eventually became an 

office supervisor. Id. at ¶ 8. Her general duties included 

opening new accounts for customers, marketing deposit accounts, 

and increasing the volume of deposits for the bank. Dep. of 

Danny Reynolds, Pls.’ Ex. 100 (“Reynolds Dep.”), at 54-58. In 

performing these duties Pickhinke was authorized to issue CDs,

send and receive wire transfers, move money between accounts, 

accept deposits, and open accounts, all without any oversight or 

approval from superiors. Id. at 53-54; Navigant Consulting, 

Inc. Report of Investigation of Potentially Fraudulent Employee 

Acts at MetaBank, Inc., Pls.’ Ex. 83A (“NCI Report”), at 5-6. 

She also had access and authority to use MetaBank’s forms and 

stationary to process CD purchases. Reynolds Dep. at 60.

Although MetaBank has not produced written policies that 

limit the authority of bank employees to issue CDs, there is 

evidence in the record that it had policies in place when 

Pickhinke worked there that would have required her to obtain a 

supervisor’s approval before: (1) issuing CDs “at or near 

$100,000,” (2) selling CDs to institutions outside of MetaBank’s 

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geographic market in Iowa or South Dakota; or (3) using CD 

brokers to sell CDs. Id. at 52, 58; Reynolds Decl. at ¶¶ 6-8. 

Even if these policies existed - a point Guardian Angel contests 

- the policies were not disclosed to customers or other third 

parties. Reynolds Dep. at 52-59.

Pickhinke used a variety of CD brokers to find her victims. 

A representative of one such broker, AVD Investments, testified 

in a deposition that he was told by an unnamed MetaBank employee 

at some point in 1995 that Pickhinke was the person that AVD 

should contact with respect to CDs. Deposition of Ted Adams,

Doc. No. 103-13 (“Adams Dep.”), at 26. AVD subsequently 

obtained information from Pickhinke about her CD offerings and 

shared it with potential customers and other CD brokers. Id. at 

26-30.

Pickhinke induced Guardian Angel to purchase what it 

thought was a $99,000 MetaBank CD in April 2005. At that time, 

Guardian Angel’s office manager, Diane Gilbert, received a fax 

proposing the investment from Jumbo Investments, Inc., a CD 

broker that had learned of the offering from AVD Investments. 

Deposition of Diane Gilbert, Doc. No. 103-7 (“Gilbert Dep.”), at 

64-65; deposition of Chris Duncan, Doc. No. 103-11 (“Duncan 

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Dep.”), at 52-54. The fax stated that the CD would be issued by

MetaBank, and it specified that the investment proceeds should 

be wired to MetaBank’s account at the Federal Home Loan Bank 

(“FHLB”). Jumbo Fax, Doc. No. 103-9, at 1. The fax included a 

fictitious mailing address, telephone number and fax number for 

MetaBank. Reynolds Decl. ¶¶ 27-29. It also stated that 

communications concerning the CD should be directed to 

Pickhinke’s attention. Jumbo Fax at 1. Gilbert took the fax to 

Guardian Angel’s CEO, Gerald Dumoulin, who was responsible for 

Guardian Angel’s investments. Gilbert Dep. at 45-47. Dumoulin 

decided to purchase the CD based on the advertised interest rate 

and the fact that MetaBank was FDIC-insured. Deposition of 

Gerald Dumoulin, Doc. No. 103-6 (“Dumoulin Dep.”), at 95.

After Guardian Angel decided to purchase the CD, it wired 

$99,000 to MetaBank’s FHLB account. Wire Detail, Doc. No. 103-

10, at 1. The Wire Detail identified MetaBank as the 

beneficiary financial institution and Guardian Angel as the 

originating financial institution. Id. at 1-2. Pickhinke then 

sent Guardian Angel a letter on MetaBank stationary with an 

original CD and signature card on a form that also included the 

MetaBank logo. Reynolds Decl. at ¶ 15. The account number 

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provided on the fraudulent CD did not correspond with an actual 

MetaBank account. Id. at ¶ 25. Pickhinke completed the 

internal compliance paperwork for the wire, falsely listing an 

entity other than Guardian Angel as the originator beneficiary. 

Wire/Funds Transfer Transaction Record, Pl’s Ex. 30A (“Wire 

Record”), at 1. She subsequently transferred the funds out of 

MetaBank’s FHLB account and deposited them into the MetaBank 

account that she had opened in a fictitious name. Reynolds 

Decl. at ¶ 22. Guardian Angel renewed the unauthorized CD twice 

before it discovered the fraud, once in April 2006 and once in 

April 2007. Aff. of Gerald Dumoulin, Pls.’ Ex. 112 (“Dumoulin 

Aff.”), at 2. Pickhinke paid Guardian Angel interest on the 

fictitious account as it became due until her scheme was 

discovered. Id.

Pickhinke began her criminal scheme in 1995 and succeeded 

in stealing a total of approximately four million dollars from 

approximately fifty institutional investors before she was 

caught in 2007. NCI Report at 1. Her method of operation in 

those cases was similar to the method she employed in her 

dealings with Guardian Angel. Id. at 4-5.

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II. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine 

issue as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party 

seeking summary judgment must first identify the absence of any 

genuine issue of material fact. Celotex Corp. v. Catrett, 477 

U.S. 317, 323 (1986). The burden then shifts to the nonmoving 

party to “produce evidence on which a reasonable finder of fact, 

under the appropriate proof burden, could base a verdict for it; 

if that party cannot produce such evidence, the motion must be 

granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 

94 (1st Cir. 1996). On cross-motions for summary judgment, the 

standard of review is applied to each motion separately. See

Am. Home Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 

810, 812 (1st Cir. 2006).

III. ANALYSIS

Plaintiffs assert claims for breach of contract, negligent 

supervision, and conversion. They also seek to recover 

attorney’s fees. All of the plaintiffs’ claims are governed by 

Iowa law. See Doc. No. 58. 

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A. MetaBank’s Summary Judgment Motion

1. Breach of Contract

Plaintiffs invoke the doctrine of apparent authority in 

arguing that MetaBank is liable for breach of contract.2 

a. Law

Apparent authority is “authority which, although not 

actually granted, has been knowingly permitted by the principal 

or which the principal holds the agent out as possessing.” 

Magnusson Agency v. Pub. Entity Nat’l Co.-Midwest, 560 N.W.2d 

20, 25-26 (Iowa 1997); see also Chismore v. Marion Sav. Bank, 

268 N.W. 137, 139 (Iowa 1936). 

Iowa courts have looked to the Restatement (Third) of 

Agency when resolving issues of apparent authority. See

Frontier Leasing Corp. v. Links Eng. LLC, 781 N.W.2d 772, 776 

 

2 Plaintiffs also argue that MetaBank is liable solely because it 

accepted deposits from the plaintiffs into its FHLB account. 

Plaintiffs claim that MetaBank’s acceptance of the deposits 

created a contract regardless of whether Pickhinke acted with 

actual or apparent authority. The cases plaintiffs cite for 

this proposition are distinguishable, as they held that a 

depositor has a right to recover money it deposits into its own 

account. See Andrew v. Colo. Sav. Bank, 219 N.W. 62, 64 (Iowa 

1928); Officer v. Officer, 94 N.W. 947, 948 (Iowa 1903). 

Plaintiffs’ deposits were made to MetaBank’s FHLB account and 

were transferred to Pickhinke’s fraudulent personal account. No 

deposits were ever made into any of the plaintiffs’ personal

accounts.

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(Iowa 2010). The Restatement provides that a person acts with 

apparent authority “when a third party reasonably believes the 

actor has authority to act on behalf of the principal and that 

belief is traceable to the principal’s manifestations.” 

Restatement (Third) of Agency § 2.03 (2006).

In explaining this concept, the Restatement identifies 

several legal principles that are relevant here. First, the 

Restatement notes that a principal’s manifestations may result 

from conduct as well as words. Thus, “if the principal places a 

person in a position or office with specific functions or 

responsibilities, from which third parties will infer that the 

principal assents to acts by the person requisite to fulfilling 

the specific functions of responsibilities, the principal has 

manifested such assent to third parties.” Id. at § 1.03, cmt.

b. In such a case, “[a} third party who interacts with the 

person, believing the manifestation to be true, need not 

establish a communication made directly to the third party by 

the principal to establish the presence of apparent authority. . 

. .” Id. This is true even if the principal’s manifestations 

are unintended. Id. at § 1.03, cmt. d.

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Second, the Restatement recognizes that a principal’s 

undisclosed limitations on an agent’s actual authority will not 

limit the scope of the apparent authority that results from the 

principal’s manifestations. Id. at § 2.03, cmt. c

(“Restrictions on an agent’s authority that are known only to 

the principal and the agent do not defeat or supersede the 

consequences of apparent authority for the principal’s legal 

relations, apart from the principal’s legal relations with the 

agent”). Further, a third party ordinarily has no duty to 

inquire into undisclosed limits on an agent’s apparent 

authority. Id. at § 3.03, cmt. b. 

Third, a principal’s manifestations of apparent authority 

need not be communicated directly by the principal to the third 

party to give rise to apparent authority. An “indirect route”

of transmission may well be sufficient as long as it was 

reasonable under the circumstances for the third party to 

conclude from the manifestations that the person has authority 

to act on the principal’s behalf. See id. at § 3.03, cmt. b; 

see also id. at § 2.03, cmt c (noting that apparent authority 

can be based on “statements made by others concerning an 

actor’s authority that reach the third party and are traceable 

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to the principal”).

b. Analysis

MetaBank argues that no reasonable jury could find that 

Pickhinke acted with apparent authority in her dealings with the 

class because there is no evidence in the record to suggest that 

MetaBank ever made any “representations” directly to any members 

of the class concerning Pickhinke’s authority to issue CDs. 

This argument is based on the mistaken premise that apparent 

authority can arise only from statements that are made directly 

by a principal to the third party that is making a claim of 

apparent authority. As I have explained, MetaBank’s premise is 

false because apparent authority can arise from nonverbal 

manifestations by the principal and those manifestations need 

not be communicated directly by the principal to the third party 

as long as the third party’s reasonable belief in the agent’s 

apparent authority is traceable to the principal’s 

manifestations. 

In the present case, it is undisputed that MetaBank 

employed Pickhinke, that it gave her apparent authority to issue 

the CDs without the approval of supervisors, and that it allowed 

her to open accounts, authorize funds transfers into the bank’s 

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FHLB account, and issue communications to third parties on the 

bank’s letterhead. It is also undisputed that MetaBank accepted 

deposits into its FHLB account from the victims and, over the 

course of several years, did nothing to suggest to the victims 

that it did not endorse the actions that Pickhinke ostensibly 

undertook on its behalf. There is also evidence in the record 

to suggest that at least one of the CD brokers that was involved 

in causing the victims to participate in Pickhinke’s fraudulent 

scheme was told by MetaBank that Pickhinke was the person to 

deal with at the bank with respect to CDs. When this evidence 

is viewed in the light most favorable to the plaintiffs, it is 

more than sufficient to permit a reasonable jury to conclude 

that MetaBank’s actions were sufficient manifestations of 

Pickhinke’s apparent authority to issue CDs on the bank’s behalf

to induce a reasonable person in the plaintiffs’ position to 

believe that she in fact had that authority.

A reasonable jury could also conclude from the record that 

the actions of the CD brokers that caused plaintiffs to believe 

that they were purchasing CDs from MetaBank are traceable to 

MetaBank’s own manifestations of Pickhinke’s authority. 

Although a reasonable jury might eventually decide otherwise, it 

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certainly could conclude from the present record that the CD 

brokers made the representations to the victims that they made 

concerning Pickhinke’s criminal scheme because MetaBank cloaked 

her with the apparent authority to act on its behalf. Under 

these circumstances, MetaBank cannot defeat the plaintiffs’ 

contract claim simply by asserting that the bank’s 

manifestations of apparent authority were not communicated 

directly from MetaBank to the plaintiffs. 

MetaBank also faults the plaintiffs for failing to 

investigate the scope of Pickhinke’s authority to act on behalf 

of MetaBank before attempting to purchase the CDs, claiming that 

several internal policies prevented Pickhinke from being 

authorized to issue the kind of CDs involved in her scheme. 

This argument is a non-starter. As I have explained, a third 

party ordinarily will not be faulted for failing to uncover 

undisclosed limitations on an agent’s authority when the 

principal’s manifestations concerning the agent’s authority 

reasonably lead third parties to believe that the agent is 

authorized to undertake the action in question on the 

principal’s behalf. The case that MetaBank cites is not to the 

contrary. In Carson v. Chicago, M & St. P. R. Co., 164 N.W. 

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747, 750 (Iowa 1917), the court endorsed the general principal 

that “those dealing with agents are bound to know the extent of 

the agent’s authority.” However, the court went on to also 

state that liability may nonetheless attach where “the party 

dealing with the agent has been misled to his injury by the 

principal’s having clothed the agent with apparent or ostensible 

authority to do the things he has done in excess of authority.” 

Id. Taken together, these two rules essentially lay out a duty 

to be aware of an agent’s actual authority and an exception to 

that duty where apparent authority has been manifested. Here, 

as I have explained, a jury could find both that the plaintiffs 

reasonably believed that Pickhinke had apparent authority to 

issue CDs on MetaBank’s behalf and that those beliefs are 

traceable to MetaBank’s manifestations of Pickhinke’s apparent 

authority. Under these circumstances, MetaBank cannot escape 

liability by seeking to blame the plaintiffs for failing to 

uncover its undisclosed limitations on Pickhinke’s actual 

authority. 

MetaBank also makes a somewhat opaque claim that plaintiffs 

have proffered insufficient evidence to support a contract claim 

even if Pickhinke had apparent authority to issue CDs on 

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MetaBank’s behalf. This argument is also without merit. If 

Pickhinke had apparent authority to act on MetaBank’s behalf, it 

is quite clear that she used CD brokers to communicate offers to 

sell MetaBank CDs to the plaintiffs and that they accepted those 

offers by depositing funds into MetaBank’s FLHB account. 

MetaBank plainly breached the contracts that resulted from this 

course of conduct if Pickhinke had apparent authority to act on 

its behalf by failing to return the principal and any 

undistributed interest when the CDs became due. I need go no 

further to dispose of MetaBank’s challenge to plaintiffs’ 

contract claim. 

2. Negligent Supervision

Plaintiffs argue that MetaBank is liable for negligently

hiring, retaining, and supervising Pickhinke. MetaBank argues 

that it is entitled to summary judgment with respect to this 

claim because a bank does not owe third parties a duty to use 

reasonable care in hiring, retaining, and supervising employees. 

I reject this argument. 

Iowa has followed the Restatement (Second) of Agency in 

recognizing the tort of negligent hiring, supervision and 

retention. See Kiesau v. Bantz, 686 N.W.2d 164, 171-72 (Iowa

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2004). The Restatement explains the tort by stating that 

A person conducting an activity through servants or 

other agents is subject to liability for harm 

resulting from his conduct if he is negligent or 

reckless . . . 

(b) in the employment of improper persons or 

instrumentalities in work involving risk of harm to 

others; 

(c) in the supervision of the activity; or

(d) in permitting, or failing to prevent, 

negligent or other tortious conduct by persons, 

whether or not his servants or agents, upon premises

or with instrumentalities under his control. 

Id. (citing Restatement (Second) of Agency § 213 (1957)). This 

tort allows a plaintiff to recover damages from an employer for 

torts committed by an employee even when the employee’s conduct 

is outside the scope of employment if “the employer’s own 

wrongful conduct has facilitated in some manner the tortious act 

or wrongful conduct of the employee.” Id. at 172.

MetaBank attempts to challenge this basic tort law concept 

by citing cases in which courts have determined that a bank 

cannot be held liable for failing to prevent an unaffiliated 

third party from using an account at the bank to commit fraud. 

See, e.g., Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220 (4th 

Cir. 2002). These cases, however, do not involve claims for 

negligent hiring, supervision, and retention, and did not 

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involve the wrongful actions of bank employees. That a bank 

does not have a general duty to protect non-customers from torts 

involving its accounts says nothing about its duty to adequately 

supervise its employees. As the cases cited by MetaBank do not 

create a special rule for banks that exempts them from liability 

for failing to properly hire and supervise their employees, this 

argument fails. 

3. Vicarious Liability

Plaintiffs’ third claim seeks to hold MetaBank vicariously 

liable for conversion and other torts committed by Pickhinke. 

Iowa follows the general common law rule in most other states in 

recognizing that an employer is vicariously liable for the tort 

of an employee only if the employee committed the tort while 

acting within the scope of his or her employment. Godar v. 

Edwards, 588 N.W.2d 701, 705 (Iowa 1999). An act is within the 

scope of one’s employment “where such act is necessary to 

accomplish the purpose of the employment and is intended for 

such purpose.” Id.

Plaintiffs acknowledge the general rule but they contend 

that the Iowa Supreme Court has also adopted a special rule of 

vicarious liability in Godar that permits a finding of vicarious 

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liability for acts committed outside the scope of employment if 

the court determines “that the loss resulting from the servant’s 

acts should be considered as one of the normal risks to be borne 

by the business in which the servant is employed.” Id. at 706. 

This “rule” is best understood, however, as an additional factor

in the analysis of a vicarious liability claim rather than a 

distinct theory of liability. 

The facts of Godar v. Edwards itself bear out this 

conclusion. After stating both the rules noted above, the Iowa 

Supreme Court held that when Edwards, a school curriculum 

director, committed sexual abuses against students, those acts 

could not be said to be in furtherance of the objectives of any 

school district programs. Id. at 707. Specifically, the court 

noted that “[t]he fact that Edwards’ alleged conduct was 

incidental to duties authorized by the school district as 

curriculum director does not support a finding that the conduct 

furthered the educational objectives of the school district.” 

Id. Thus, far from indicating that furthering the employer’s 

objectives is not a necessary element of vicarious liability, 

the court explicitly relied on it in denying liability.

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Here, as in Godar, Pickhinke’s fraudulent scheme did not in 

any way further the objectives of MetaBank. While her 

fraudulent conduct may have been incidental to duties authorized 

by her employer, that is not sufficient. Similarly, the de 

minimus benefits realized by MetaBank in the form of wire 

transfer fees were merely incidental benefits and were not 

intended as part of Pickhinke’s scheme. 

Plaintiffs also rely on Riggan v. Glass, No. 7-065, 2007 

Iowa App. LEXIS 344 (Iowa Ct. App. Mar. 28, 2007), for the

proposition that furthering the objectives of the employer is 

not required. That case, however, undermines rather than 

supports plaintiffs’ argument. In Glass, the CEO of a bank 

wrote fraudulent loans for customers and deposited the proceeds 

in his own account. Id. at *2. In finding that vicarious 

liability was not precluded as a matter of law, the appeals 

court noted first that “[o]ne of the purposes of his illegal 

conduct was to create the false impression that [the bank] had 

no bad loans and was extremely profitable.” Id. at *12. Only 

after determining that Glass intended, at least partially, to 

benefit his employer, did the court go on to address whether the 

criminal conduct was a normal risk that should be borne by the 

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bank. Id. Thus the language cited by plaintiffs about “normal 

risks to be borne,” when looked at in the context of the cases 

that use it, was clearly not meant to replace the requirement 

that an employee act and intend to accomplish the purpose of the 

employer.

Plaintiffs have not pointed to any facts indicating that 

Pickhinke intended to benefit MetaBank when she issued 

fraudulent CDs and created false accounts to use the funds to 

her own personal benefit, and without such facts its arguments 

that employee theft is a normal risk in the banking industry

that should be borne by MetaBank are insufficient as a matter of 

law. 

4. Attorney’s Fees

Finally, Plaintiffs seek attorney’s fees in this matter. 

Iowa law allows a “rare exception” to the general rule against

awarding attorney’s fees where a party “has acted in bad faith, 

vexatiously, wantonly, or for oppressive reasons.” Hockenberg 

Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 

158 (Iowa 1993). Hockenberg noted that the standard includes 

“voluntary blindness or an intentional failure to discover or 

prevent the wrong.” Id. at 159 (internal brackets omitted). 

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Plaintiffs argue that MetaBank’s actions illustrate willful 

blindness to Pickhinke’s fraudulent scheme because the bank 

ignored its own Wire Transfer Policy, did not act on a 2005 

audit that found its internal wire transfer controls inadequate, 

and received two warnings related to Pickhinke that resulted in 

internal investigations. Plaintiffs’ argument fails, however, 

because the Hockenberg decision went on to make clear that 

“[t]hese terms envision conduct that is intentional and likely 

to be aggravated by cruel and tyrannical motives.” Id. In 

fact, the court held that the standard for attorney’s fees is 

more stringent than the test for punitive damages, which is the 

“willful and wanton disregard for the rights of another.” Id.

Plaintiffs have not identified facts even close to 

satisfying this standard. It is undisputed that MetaBank did 

not participate in Pickhinke’s scheme, had no knowledge of it, 

and took prompt action to end the scheme as soon as it became 

aware of it. The investigations of Pickhinke cited by 

plaintiffs concerned only her use of vacation time and did not 

discover the fraudulent scheme underlying this case. 

Finally, plaintiffs argue that they should be granted 

attorney’s fees because MetaBank has been “stubbornly 

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litigious.” See United Fire & Cas. Co. v. Shelly Funeral Home, 

Inc., 642 N.W.2d 648, 658 (Iowa 2002); Clark-Peterson Co., Inc. 

v. Indep. Ins. Assocs, Ltd., 514 N.W.2d 912, 916 (Iowa 1994). 

In Clark-Peterson, attorney fees were denied in an insurance 

case where the defendants “merely believed no coverage existed 

under the policy.” 514 N.W.2d at 916. Similarly, here 

defendants have simply litigated in good faith, and have not 

advanced frivolous arguments. The fact that MetaBank’s motion 

for summary judgment is partially granted by this order, while 

the remaining claims are sufficiently disputed to survive 

summary judgment, supports this conclusion. MetaBank is 

entitled to summary judgment on plaintiffs’ claim for attorney’s 

fees.

B. Plaintiffs’ Summary Judgment Motion

Plaintiffs have filed their own motion for summary 

judgment. It is, however, a rare case in which the party with 

the burden of proof will be entitled to summary judgment. This 

is not such a case. It is sufficient to dispose of the motion to 

note that the motion must be denied because facts material to 

its resolution remain in genuine dispute. 

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IV. CONCLUSION

For the reasons stated above I grant MetaBank’s motion for 

summary judgment (Doc. No. 103) in part and deny it in part and 

deny plaintiffs’ motion for summary judgment (Doc. No. 102) in 

its entirety.

SO ORDERED.

/s/Paul Barbadoro

Paul Barbadoro

United States District Judge

July 14, 2011

cc: Christopher T. Meier, Esq.

Randall F. Cooper, Esq.

Bruce Felmly, Esq.

Christine B. Cesare, Esq.

Howard M. Rogatnick, Esq.

Ronald Joshua Bliss, Esq.

Cathryn E. Vaughn, Esq.

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