NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0402n.06
                             Filed: May 16, 2005

                                           No. 04-5339

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


GIVERNY GARDENS, LIMITED                                 )
PARTNERSHIP, a Kentucky Limited Partnership;             )
PARKSIDE G.P. II, INC., a Kentucky                       )
Corporation; and PARKSIDE USA, LLC, a                    )
Kentucky Limited Liability Corporation,                  )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
       Plaintiffs-Appellants,                            )       COURT FOR THE WESTERN
                                                         )       DISTRICT OF KENTUCKY
v.                                                       )
                                                         )                          OPINION
COLUMBIA HOUSING PARTNERS LIMITED                        )
PARTNERSHIP, an Oregon Limited Partnership;              )
COLUMBIA PORTFOLIO SERVICES, INC., an                    )
Oregon Corporation; PNC FINANCIAL                        )
SERVICES GROUP, INC., a Pennsylvania                     )
Corporation; PNC BANK, NATIONAL                          )
ASSOCIATION; and COLUMBIA PORTFOLIO                      )
SERVICES GP, INC.,                                       )
                                                         )
       Defendants-Appellees.                             )
                                                         )



BEFORE:        COLE and GIBBONS, Circuit Judges, and SCHWARZER, Senior District
               Judge*

       R. GUY COLE, JR., Circuit Judge. This is a diversity contract case under Kentucky law.

Plaintiffs-Appellants Giverny Gardens Limited Partnership, Parkside G.P. II, Inc., and Parkside USA

LLC (collectively, “Parkside”), bring suit against Defendants-Appellees Columbia Housing Partners


       *
         The Honorable William W Schwarzer, Senior United States District Judge of the Northern
District of California, sitting by designation.
No. 04-5339
Giverny Gardens, Ltd. P’ship v. Columbia Housing Partners Ltd. P’ship

Limited Partnership, Columbia Portfolio Services, Inc., PNC Financial Services Group, Inc., PNC

Bank, National Association, and Columbia Portfolio Services GP, Inc. (collectively, “Columbia”),

for breach of an agreement to develop low-income housing in Kentucky. In particular, Parkside sues

Columbia for: (1) breach of a letter of intent; (2) breach of the duty of good faith and fair dealing;

and (3) breach of fiduciary duty. The district court granted summary judgment for Columbia and

dismissed the complaint. For the following reasons, we AFFIRM the judgment of the district court

in all respects.

                                                 I.

        The Parkside companies are affiliated entities in the business of developing low-income

housing. In the mid-1990s, Parkside organized the Giverny Gardens Limited Partnership for the

purpose of developing property in Paris, Kentucky (the “Project”). Since the Project was for low-

income housing, Parkside was eligible to receive low-income housing tax credits as a federal subsidy

from the Kentucky Housing Corporation (“KHC”), a public corporation of the Commonwealth of

Kentucky that administers programs for the creation of low and moderate income housing. Parkside

intended to finance the Project by transferring the tax credits to other equity investors.

        Parkside has made at least two prior attempts to develop this Project, both of which failed.

In 1999, Parkside approached Columbia in an attempt to save the Project. Parkside and Columbia

had been partners in three prior real estate development projects involving the receipt and transfer

of tax credits. On June 15, 1999, Parkside and Columbia entered into a letter of intent which

“outlines certain terms and conditions that will be the basis of the Partnership agreement . . . .”




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       Based on the letter of intent, the development costs of the project were “expected to be

$2,214,122.00.” Mortgage financing was to be “provided by Citizens Union Bank in the amount

of $1,135,000 with a 8.50% interest rate.” The letter of intent also required a due diligence period

of 60 days after the receipt of certain documents, during which Columbia “will conduct a due

diligence review and negotiate with the General Partner, in good faith, any open terms of this letter

of intent.” After the completion of the due diligence review, Columbia would submit the transaction

to Columbia’s Acquisition Review Committee, which “will approve, approve with conditions, or

decline the investment based upon its terms and structure.”

       After the execution of the letter of intent, Parkside then sought an extension of the tax

credits, which would expire at the end of 1999. Beginning in June 1999, Parkside also requested

that Columbia begin requesting and reviewing documents for the due diligence review. Though

Columbia performed some due diligence at this time, a significant number of documents were not

requested or reviewed. According to Columbia, the full due diligence would not be performed until

the extension of tax credits, which were the financial basis of the deal. According to Parkside,

Columbia failed to perform adequately the due diligence since the underwriter assigned by Columbia

was inexperienced. Nonetheless, some correspondence between Columbia and Parkside indicated

that approval for the Project appeared to be on track prior to the formal extension of tax credits by

KHC.

       On October 4, 1999, KHC extended the tax credits for an additional two years “provided that

Parkside USA has submitted to KHC proof that the construction has started on the project, a new

project completion schedule and a copy of the closed loan documents.” After receipt of notification

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Giverny Gardens, Ltd. P’ship v. Columbia Housing Partners Ltd. P’ship

of the extension of tax credits, Columbia and Parkside then attempted to complete the due diligence

review. During the review it was determined that the approved mortgage loan amount for the

Project was $1,077,500, and not the $1,135,000 to which the parties had agreed. The review also

determined that loan fees were approximately $30,000 more than anticipated. On November 22,

1999, Columbia elected not to pursue the Project given these changes.

       Parkside brought a suit in state court against Columbia for breach of contract, breach of the

duty of good faith and fair dealing, and breach of fiduciary duty. The case was removed to federal

district court based on diversity of citizenship. Columbia moved for summary judgment, which was

granted by the district court. In particular, the district court held that under Cinelli v. Ward, 

(Ky. Ct. App. 1998), preliminary agreements like the one executed in this case are

unenforceable under Kentucky law.

       This timely appeal ensued.

                                                 II.

A.     Standard of Review

       We review de novo a district court’s grant of summary judgment.                Tate v. Boeing

Helicopters, 

, 657 (6th Cir. 1998). Viewing the evidence in the light most favorable

to the non-moving party, we must determine whether there is no genuine issue of material fact such

that judgment as a matter of law is appropriate. 

is a diversity suit, Kentucky law applies.

Gahafer v. Ford Motor Co., 

, 861 (6th Cir. 2003).

B.     Breach of Contract

       1. The Modern Trend and the Kentucky Rule

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         Parkside argues that the letter of intent establishes an enforceable contract. Parkside notes

the letter of intent is a comprehensive, nine-page, single-spaced document that was written by

Columbia and edited by Parkside. In particular, Parkside argues that the letter of intent requires

Columbia: (1) to conduct due diligence; (2) to negotiate open terms in good faith; and (3) to submit

the Project to Columbia’s Acquisition Review Committee. Parkside notes that Randy Deaton, a

Columbia employee, testified that the purpose of the letter of intent was to “have some sort of

agreement to . . . hold the developer on the project.” Deaton further testified that Columbia was

“obligated” to perform the “terms and conditions” of the letter of intent.

         Parkside further argues that the transaction is best understood as having two distinct phases:

“(1) the preliminary stage where Columbia was to evaluate, within the confines of certain defined

parameters, whether to make an investment; and (2) the consummation stage where Columbia

actually executed the necessary documents to become an investor.” The letter of intent, Parkside

argues, was the agreement which set out the duties and responsibilities of the parties as to the first

stage.

         Parkside notes that under the oft-cited Teachers Insurance & Annuity Association of America

v. Tribune Company, 

(S.D.N.Y. 1987) (“TIAA”), letters of intent or other

preliminary agreements between sophisticated business entities are enforceable contracts. In that

case, the district court explained that preliminary agreements should be enforceable:

         [One kind] of preliminary binding agreement is one that expresses mutual
         commitment to a contract on agreed major terms, while recognizing the existence of
         open terms that remain to be negotiated. Although the existence of open terms
         generally suggests that binding agreement has not been reached, that is not
         necessarily so. For the parties can bind themselves to a concededly incomplete

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Giverny Gardens, Ltd. P’ship v. Columbia Housing Partners Ltd. P’ship

       agreement in the sense that they accept a mutual commitment to negotiate together
       in good faith in an effort to reach final agreement within the scope that has been
       settled in the preliminary agreement.

The court then noted several factors which help determine whether a preliminary

agreement is binding: (1) the language of the agreement; (2) the existence of open terms; (3) the

context of negotiations; (4) whether there was partial performance; and (5) the custom of such

transactions. 

Given these principles, the district court held that an institutional

lender could sue a prospective borrower for abandoning negotiations, renouncing the deal, or

demanding terms outside the scope of the preliminary agreement, and found for the plaintiff on

summary judgment. See 

508. TIAA is sometimes referred to as exemplifying the “modern

trend” for preliminary agreements. See, e.g., Burbach Broad. Co. v. Elkins Radio Corp., 

, 409 n.6 (4th Cir. 2002).

       The “modern trend” of TIAA is contrasted with the “Kentucky rule,” which is the traditional

“all or nothing” approach to preliminary agreements. See 

n. 7; Beazer Homes Corp. v.

VMIF/Anden Southbridge Venture, LPI, 

, 491 (E.D. Va. 2002). The lead case

for the Kentucky rule is Cinelli v. Ward, 

(Ky. Ct. App. 1998). In that case, a

telecommunications company entered into a preliminary agreement with a buyer, who agreed to lend

the company $2.65 million in exchange for 54% of the stock. 

The agreement left open

various terms, such as the completion of due diligence and obtaining necessary authorizations for

the transfer. 

¶ 8(a)-(b) (agreement attached). However, the agreement explicitly stated

that “The parties acknowledge and agree that this Agreement is a valid and binding agreement,

enforceable against each of them in accordance with its terms.” 

¶ 8 (agreement attached).

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Giverny Gardens, Ltd. P’ship v. Columbia Housing Partners Ltd. P’ship

       The Kentucky Court of Appeals held the contract unenforceable under Kentucky law. The

Court first noted that the “Agreement essentially contemplated the future sale” of the

telecommunications company. 

(emphasis removed). The Court noted that “[w]here an

agreement leaves the resolution of material terms to future negotiations, the agreement is generally

unenforceable for indefiniteness unless a standard is supplied from which the court can supplant the

open terms should negotiations fail.” 

stated:

       It is difficult for us to accept Ward’s position that the Agreement was intended to be
       an iron-clad contract to sell . . . majority interests when: (1) throughout negotiations,
       the parties modified or attempted to modify the Agreement’s settled terms (including
       the ultimate purchase price), and (2) the Agreement itself contemplated the
       possibility that the deal might never close.

The Kentucky court specifically noted the enforceability of preliminary agreements in

other jurisdictions, citing TIAA, and contrasted that approach with the rule in Kentucky.

       Simply stated, we view the Agreement as lacking the necessary definiteness of an
       enforceable contract requiring consummation of the proposed transaction and as
       lacking the requisite intent of the parties to be bound to same. We construe it as
       merely an attempt to bind the parties to good faith negotiations. We note that some
       jurisdictions recognize such agreements to negotiate in good faith and have imposed
       a measure of damages for a party’s failure to so negotiate. See Evans, Inc. v. Tiffany
       & Co., 

(N.D. Ill. 1976), and [TIAA], 

(S.D.N.Y.
       1987). We seem to take the traditional “all or nothing” approach: Either the
       agreement is enforceable as a binding contract to consummate the transaction or it
       is unenforceable as something less.

Kentucky Court of Appeals held the preliminary agreement unenforceable.

and Interpretation of Kentucky Law




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Giverny Gardens, Ltd. P’ship v. Columbia Housing Partners Ltd. P’ship

       On appeal, Parkside concedes that Cinelli is prima facie controlling. Parkside argues,

however, that other principles of Kentucky law indicate that Cinelli is distinguishable or wrongly

decided, and that this Court should apply the reasoning of TIAA.

       As an initial matter, in a diversity case, a “federal court is in effect another court of the forum

state, in this case Kentucky, and must therefore apply the substantive law of that state.” 

. “Where a state’s highest court has spoken to an issue, we are bound by that

decision unless we are convinced that the high court would overrule it if confronted with facts

similar to those before us.” Kurczi v. Eli Lilly & Co., 

, 1429 (6th Cir. 1997). “Where

a state appellate court has resolved an issue to which the high court has not spoken, we will normally

treat [those] decisions . . . as authoritative absent a strong showing that the state's highest court

would decide the issue differently.” Managed Health Care Assocs., Inc. v. Kethan, 

,

928 (6th Cir. 2000) (citing 

)). While “we may refuse to follow intermediate

appellate court decisions where we are persuaded that they fail to reflect state law correctly . . . we

should not reject a state rule just because it was not announced by the highest court of the state, even

if we believe the rule is unsound.” 

(internal quotes omitted). Since no

Kentucky Supreme Court case has ruled on the issue of preliminary agreements between

sophisticated business entities, Cinelli is the authoritative Kentucky law on the subject. See, e.g.,

Poundstone v. DEW Res., 75 Fed. Appx. 353, 364 (6th Cir. 2003) (citing Cinelli as controlling on

Kentucky law); Burbach Broad. 

n.6 (same); Beazer Homes Corp., 

at 491 (same).




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       Parkside argues that Cinelli conflicts with two other Kentucky Supreme Court cases, and

therefore cannot be binding on a federal court. The first is Stevens v. Stevens, 

(Ky.

1990), which concerns the enforceability of the following clause in a divorce property settlement

agreement:

       (3) DAUGHTER’S COLLEGE EDUCATION. HUSBAND hereby declares his
       intention to provide and pay for a four-year undergraduate college education for
       Elizabeth, including tuition, books, room, board, and proper related expenses;
       however, the amount and nature thereof shall hereafter be mutually agreed upon by
       HUSBAND and Elizabeth.

(emphasis removed). The Kentucky Supreme Court noted that as a general matter,

agreements to agree are unenforceable, absent “such an exceptional character as to justify an

exercise of the court’s powers of equity.” 

That Court then held that since “the

respondent’s intent to provide his daughter with a four-year undergraduate education is clear, equity

demands that the respondent be required to pay some amount.” 

case is Simpson v. JOC Coal, Inc., 

(Ky. 1984), which dealt with

the purchase of stock from the majority shareholders of a coal company. A minority shareholder

was not a party to this purchase agreement, but was referenced by the following clause:

       [T]he parties to this agreement acknowledge that two Shareholders . . . are not parties
       to this agreement. It is, however, understood that the JOC Companies will undertake
       to conclude a similar arrangement with [the minority shareholder] under which said
       . . . will also consent to a similar ammending [sic] of the Agreement.

The Kentucky Supreme Court held that the clause was not an unenforceable

agreement to agree, since “the trial court could determine value from a contemporaneous, bona fide




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sale.” 

Accordingly, the clause was properly enforceable, and the minority shareholder

had an enforceable right to performance. 

and Simpson are inapplicable here. As an initial matter, neither case concerns

a preliminary agreement between sophisticated business entities in the process of consummating a

complicated business transaction. Rather, both concern the enforceability of arguably open clauses

in otherwise enforceable agreements.

       Furthermore, Stevens does not stand for the general acknowledgment that preliminary

agreements or agreements to negotiate in good faith are enforceable under Kentucky law. Rather,

Stevens is an exercise of equity power by the Kentucky Supreme Court to force a father to abide by

a promise he made to his daughter. 

. Since Parkside and Columbia are

established, sophisticated business entities, Stevens is clearly distinguishable.

       Nor does Simpson contemplate an agreement to negotiate certain terms in good faith. Rather,

Simpson merely stands for the uncontroversial proposition of contract interpretation that ambiguous

terms may be fixed by viewing the context of the agreement. Since the stock price had been

previously negotiated and executed, it was simple contract interpretation to determine that the same

price should be afforded to the minority shareholder. 

.

       Indeed, at least one Kentucky Supreme Court case would appear to support Cinelli. In

Walker v. Keith, 

(Ky. 1964), a lease contained a ten-year renewal option under the

same terms and conditions of the lease. The option stated:

       rental will be fixed in such amount as shall actually be agreed upon by the lessors
       and the lessee with the monthly rental fixed on the comparative basis of rental values



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       as of the date of the renewal with rental values at this time reflected by the
       comparative business conditions of the two periods.

That Court noted that the parties’ attempt to fix the future rent based on “comparative

business conditions” was insufficient, since it was unclear whether the parties had “in mind local

conditions, national conditions, or conditions affecting the lessee’s particular business.” 

Accordingly, the Kentucky Supreme Court held this clause unenforceable, since there was no

proper quantum to determine what the future rent would be. 

205.

       Walker appears to support the Cinelli rule that agreements to bind parties to future

negotiations in good faith are unenforceable agreements to agree. Since the “comparative business

conditions” at the time of renewal were not specified in Walker, the clause would be open to further

negotiations between the parties. 

. Similarly, the structured process of

engaging in due diligence and obtaining the necessary regulatory approval for the transfer of a

telecommunications company in 

, left much of the deal open to future

substantive negotiations.

       Given this Kentucky case law, there is no “strong showing” that the Kentucky Court of

Appeals misinterpreted Kentucky law in Cinelli. See Managed Health Care Assocs., 

(6th Cir. 2000) (“Where a state appellate court has resolved an issue to which the high court

has not spoken, we will normally treat [those] decisions . . . as authoritative absent a strong showing

that the state's highest court would decide the issue differently.”)

       3. Application




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       Application of Cinelli resolves this case in Columbia’s favor. First, the preliminary

agreements in both cases are complicated and long, detailing numerous terms and conditions of the

proposed business arrangment. See 

(appending five-page preliminary

agreement); (Columbia Letter of Intent (nine-page letter of intent)). Second, the parties in each of

these cases are sophisticated business entities in an arms-length negotiation to consummate a

significant business deal. See 

(stock sale of telecommunications

companies for $2.65 million); (Columbia Letter of Intent at 1-3 (noting financial terms of deal)).

Third, in both cases, the parties left the consummation of the deal dependent on the completion of

due diligence and regulatory approval. See 

, ¶ 8(a)-(b); (Columbia Letter

of Intent at ¶ 9.A). Fourth, though the parties in both cases apparently intended the preliminary

agreements to be binding, the terms of the agreements specifically contemplated the possibility that

the deal could fall through. See 

, ¶ 8 (specifically noting that the

agreement is “binding,” but also noting that the “obligations of Ward shall be conditioned upon” the

completion of due diligence and regulatory approval); (Columbia Letter of Intent at ¶ 9.A (noting

that Columbia will negotiate in “good faith, any open terms” after the due diligence review, and

stating the Acquisition Review Committee may “decline the investment” after the review)).

       On this last point, Parkside argues that failure to enforce the letter of intent would frustrate

the clear intention that both parties act in good faith in an attempt to consummate the transaction.

See Deerfield Ins. Co. v. Warren County Fiscal Court, 

, 873 (Ky. Ct. App. 2002)

(“The goal of any court in interpreting a contract is to ascertain and to carry out the original

intentions of the parties.”). This is the primary appeal for the “modern trend” towards enforceability

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of comprehensive preliminary agreements executed by sophisticated business entities. 

. However, federal courts are bound to apply state law in diversity cases, even if such

law is “unsound,” 

, and federal courts should resist the urge to “modernize”

state common law. Combs v. Int’l Ins. Co., 

, 578 (6th Cir. 2004) (“Federal courts

hearing diversity matters should be extremely cautious about adopting substantive innovation in

state law.”) (quotations omitted) . Here, the traditional Kentucky rule is clear — preliminary

agreements such as the letter of intent in this case are unenforceable.

C.     Duty of Good Faith and Fair Dealing

       Under Kentucky law, it is well-established that the implied covenant of good faith and fair

dealing arises from an enforceable contract. See Auto Channel, Inc. v. Speedvision Network LLC,

, 791 (W.D. Ky. 2001); Ranier v. Mt. Sterling Nat’l Bank, 

, 156

(Ky. 1991). Since this letter of intent is unenforceable under Kentucky law, Parkside cannot assert

a claim for a breach of the implied duty.

D.     Fiduciary Duty

       Parkside also claims that Columbia breached a fiduciary duty by not consummating the

transaction. Parkside notes that it had cooperated with Columbia on several low-income housing

tax credit transactions. Parkside argues that this history of a working relationship establishes a

“joint adventure” which can give rise to a fiduciary duty. See Greenup v. Hewett, 

,

1002 (Ky. 1951) (“The relationship between joint adventurers, like that existing between partners,

is fiduciary in character, and imposes upon all the participants the obligation of loyalty to the joint




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concern and of the utmost good faith, fairness, and honesty in their dealings with each other with

respect to matters pertaining to the enterprise.”).

        Parkside’s argument is unpersuasive. Under Kentucky law, a joint adventure is “an informal

association of two or more persons, partaking of the nature of a partnership, usually, but not always,

limited to a single transaction in which the participants combine their money, efforts, skill, and

knowledge for gain, with each sharing in the expenses and profits or losses.” Roethke v. Sanger, 

, 364 (Ky. 2001). There are four elements necessary for the establishment of a joint

adventure:

        (1) an agreement, express or implied, among the members of the group; (2) a
        common purpose to be carried out by the group; (3) a community of pecuniary
        interest in that purpose among the members; and (4) an equal right to a voice in the
        direction of the enterprise, which gives an equal right of control.

and Columbia were not engaged in a joint adventure. As noted above, Kentucky

law does not recognize the enforceability of a preliminary agreements such as the letter of intent

executed in this case. Nor is there additional evidence that some other enforceable agreement was

contemplated by the parties. Accordingly, Parkside and Columbia had no express or implied

agreement necessary to support a joint adventure.

        Absent a finding of a joint adventure, Parkside cannot show that Columbia had a fiduciary

duty.   The Kentucky Supreme Court has articulated the following definition of a fiduciary duty:

        [A]s a general rule, we can conclude that such a relationship is one founded on trust
        or confidence reposed by one person in the integrity and fidelity of another and
        which also necessarily involves an undertaking in which a duty is created in one
        person to act primarily for another's benefit in matters connected with such
        undertaking . . . .



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       The relation[ship] may exist under a variety of circumstances; it exists in all cases
       where there has been a special confidence reposed in one who in equity and good
       conscience is bound to act in good faith and with due regard to the interests of the
       one reposing confidence.

Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 

, 485 (Ky. 1991) (internal quotes and

citations omitted).

       Given this definition, Columbia did not owe Parkside a fiduciary duty. Parkside and

Columbia are sophisticated business entities who were attempting to consummate a complicated

business transaction. The terms of the letter of intent required Columbia to engage in a lengthy

period of due diligence to verify the costs, profits, and feasibility of the Project, and determine

whether Columbia would make an investment therein. Here, Columbia and Parkside were acting

in their own interests in determining whether the Project was viable. Other courts have previously

found that such arms-length negotiations preclude a finding of a fiduciary relationship. Hendrickson

v. Peabody Coal Co., 

, 954 (W.D. Ky. 1997) (applying Indiana law); Phoenix

Mut. Life Ins. Co. v. Shady Grove Plaza Ltd. P’ship, 

, 1192 (D. Md. 1990) (“A

fiduciary relationship hardly arises when commercial parties engage in contract negotiations.”).

Accordingly, Columbia had no fiduciary duty to Parkside.

E. Dismissal of Affiliated Entities

       Finally, Parkside claims that the district court erred in dismissing Columbia’s affiliated and

parent entities. However, since Parkside offers no independent allegations against Columbia’s

affiliated and parent entities, there are no separate claims.

                                                 III.



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       For the foregoing reasons, we AFFIRM the judgment of the district court in all respects.




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