Syngenta Crop Protection, Inc. v. Monsanto Company

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-IA-00530-SCT

SYNGENTA CROP PROTECTION, INC.

v.

MONSANTO COMPANY

DATE OF JUDGMENT: 02/27/2004
TRIAL JUDGE: HON. LARRY O. LEWIS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LAWRENCE D. WADE
ROECHELLE RYANN MORGAN
DAN W. WEBB
ATTORNEYS FOR APPELLEE: CHARLES M. MERKEL, JR.
J. COLLINS WOHNER, JR.
WILLIAM F. GOODMAN, JR.
BENNIE LENARD RICHARD
CHARLES VICTOR McTEER
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 08/04/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

CONSOLIDATED WITH
NO. 2004-IA-00711-SCT

SYNGENTA SEEDS, INC.

v.

MONSANTO COMPANY

DATE OF JUDGMENT: 03/24/2004
TRIAL JUDGE: LARRY O. LEWIS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LAWRENCE D. WADE
ROECHELLE RYANN MORGAN
DAN W. WEBB
ATTORNEYS FOR APPELLEE: CHARLES M. MERKEL, JR.
J. COLLINS WOHNER, JR.
WILLIAM F. GOODMAN, JR.
CHARLES VICTOR McTEER
BENNIE LENARD RICHARD
NATURE OF THE CASE: CIVIL – OTHER
DISPOSITION: REVERSED AND RENDERED - 08/04/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

CONSOLIDATED WITH
NO. 2004-IA-00709-SCT

DOW AGROSCIENCES, LLC

v.

MONSANTO COMPANY

DATE OF JUDGMENT: 03/24/2004
TRIAL JUDGE: LARRY O. LEWIS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LAWRENCE D. WADE
ROECHELLE RYANN MORGAN
DAN W. WEBB
ATTORNEYS FOR APPELLEE: CHARLES M. MERKEL, JR.
J. COLLINS WOHNER, JR.
WILLIAM F. GOODMAN
CHARLES VICTOR McTEER
BENNIE LENARD RICHARD
NATURE OF THE CASE: CIVIL – OTHER
DISPOSITION: REVERSED AND RENDERED - 08/04/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE COBB, P.J., CARLSON AND GRAVES, JJ.

CARLSON, JUSTICE, FOR THE COURT:

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¶1. We granted an interlocutory appeal in these three consolidated cases to consider the

propriety of the trial court’s entry of orders denying motions to quash subpoenas duces tecum

issued at the request of a party to this litigation for service upon non-resident non-parties

commanding them to produce documents located outside the State of Mississippi. Finding that

the trial court committed error, as a matter of law, in the entry of these orders, we reverse

these orders and render.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On January 18, 2000, Delta and Pine Land Company (Delta) sued the Monsanto

Company (Monsanto) in the Circuit of the First Judicial District of Bolivar County,

Mississippi. The complaint filed in circuit court contains numerous allegations of breach of

contract for which Delta seeks a judgment against Monsanto for at least $2 billion in actual and

punitive damages. Some of the allegations, as gleaned from the complaint, are that: (1) In

1997, Delta was the most successful cotton seed company in the nation, with a solid

international reputation; (2) from July 1997, through April, 1998, Delta explored alternative

strategic transactions with various companies in the industry; (3) with the aid of investment

bankers, lawyers and numerous other advisors, Delta conducted due diligence and during this

process, various companies, including Monsanto, received confidential information

concerning Delta; (4) in May, 1998, Delta and Monsanto agreed in principle to a merger

agreement which provided, inter alia, that Monsanto would acquire all outstanding Delta stock

and Delta would “merge with and into Monsanto;” (5) Monsanto assured Delta that Monsanto

would make diligent efforts to satisfy all demands made by the Department of Justice (DOJ)

and the Federal Trade Commission (FTC) to allow the merger to pass muster in accordance

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with the provisions of the Hart-Scott-Rodino Antitrust Improvements Act (HSR),1 and all other

relevant antitrust laws; (6) the merger agreement was finalized on May 8, 1998, however, over

the course of the next year and a half, Monsanto “drug its feet” and never received DOJ and

FTC antitrust clearance under the HSR, thus causing Monsanto to be liable for payment of a

termination fee in the amount of $81 million pursuant to the terms of the merger agreement;

(7) during the period of time that Monsanto was failing to diligently pursue antitrust clearance

for the Delta/Monsanto deal, Monsanto negotiated and closed other corporate acquisitions

which required Monsanto to seek and successfully receive antitrust clearance; (8) on

December 20, 1999, Monsanto issued a press release announcing its official withdrawal of the

filing seeking approval of the proposed Delta/Monsanto merger, faulting “continued delays in

the [HSR] review and demands by the [DOJ];” (9) Monsanto’s action caused Delta to suffer

substantial damages by way of, inter alia, a significant reduction in the value of Delta’s stock,

damage to Delta’s relationships with others in the industry, loss of opportunities to negotiate

with other companies in the industry, and extreme loss of morale among Delta employees; and,

(10) Monsanto did not pay the mandated termination fee of $81 million until Delta filed suit

in a separate action. 2

¶3. The twenty-three page trial court docket in today’s case reveals that after suit was

commenced, extensive discovery occurred between the parties. Some of this discovery was

commenced and obtained by way of the issuance of letters rogatory and commissions for the

issuance of subpoenas duces tecum.

1
See 15 U.S.C. § 18(a).

2
Needless to say, Delta’s allegations are hotly contested by Monsanto.

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¶4. However, on approximately April 14, 2003, April 18, 2003, and February 19, 2004, in

connection with this pending litigation, Monsanto caused subpoenas duces tecum to be issued

and served upon nonresident nonparties Syngenta Crop Protection, Inc. (“Syngenta Crop”),

Dow AgroSciences LLC (“Dow”), and Syngenta Seeds, Inc. (“Syngenta Seeds”) respectively

through their registered agents in the State of Mississippi. Monsanto’s explanation for this

action is that it believes that these companies are in possession of voluminous documents

which would aid Monsanto in defending Delta’s claims that because of Delta’s time and effort

expended on what turned out to be a failed effort to consummate the merger agreement with

Monsanto, Delta was unable to successfully enter into negotiations for mergers with other

companies involved in the agricultural and chemical seed markets. These nonparties thereafter

filed motions in the pending litigation to quash these subpoenas duces tecum, and on February

19, 2004, and March 26, 2004, the trial court entered orders denying the motions to quash;

however, the trial court did make applicable to each nonparty a previously entered protective

order regarding confidential documents. The trial court likewise stayed the effect of these

orders and granted these nonparties’ motions for certification of an interlocutory appeal to this

Court.3 By order entered on May 10, 2004, a three-justice panel of this Court granted these

nonparties’ petition for an interlocutory appeal, consolidated these causes for appeal purposes,

and directed the nonparties and parties in this interlocutory appeal to proceed consistent with

the provisions of M.R.A.P. 10 & 11.

3
This Court amended M.R.A.P. 5 effective December 9, 2004, for all trial court orders entered from
and after March 1, 2005, by eliminating the necessity of seeking trial court certification prior to petitioning this
Court for permission to bring an interlocutory appeal. Thus, this amended rule did not apply to the case sub
judice.

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 DISCUSSION

¶5. The trial court entered separate certification orders as to the nonparties, and while the

issue certified is stated differently in each order, a review of these orders clearly reveals that

the trial court deemed worthy of this Court’s consideration via interlocutory appeal:

“[W]hether, under Mississippi law, a non-resident, non-party corporation located outside the

State of Mississippi, whose [only] significant contact with Mississippi is its formal business

registration and a registered agent for service of process, is subject to the subpoena power of

the Mississippi courts.” Thus the trial court’s entry of orders denying the nonparties’ motions

to quash subpoenas duces tecum on the grounds as stated by the trial court presents to us a pure

question of law. The standard of review for questions of law, such as questions concerning

motions to quash subpoenas and personal jurisdiction of courts, is de novo. See Columbia

Land Dev., LLC v. Secretary of State, 868 So.2d 1006, 1011 (Miss. 2004); G. B. “Boots”

Smith Corp. v. Cobb, 860 So.2d 774, 777 (Miss. 2003); Sanderson Farms, Inc. v. Gatlin, 848

So.2d 828, 834 (Miss. 2003); Burch v. Land Partners, L.P., 784 So.2d 925, 927 (Miss.

2001); State v. Bapt. Mem’l Hosp.-Golden Triangle, 726 So.2d 554, 557 (Miss. 1998).

¶6. Syngenta Crop, Syngenta Seeds, and Dow are not parties to the underlying litigation.

Syngenta Crop is incorporated under the laws of the state of Delaware and maintains its

principal place of business in Greensboro, North Carolina. Thus, Syngenta Crop is neither

incorporated in nor maintains its principal place of business in Mississippi. The record reveals

that other than having a registered agent for service of process in Mississippi, Syngenta Crop’s

only contact with this state is its ownership of a small research facility with a few employees

in Leland, Mississippi. Syngenta Seeds is incorporated under the laws of the state of Delaware

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and maintains its principal place of business in Golden Valley, Minnesota. Thus, Syngenta

Seeds is neither incorporated in nor maintains its principal place of business in Mississippi.

Syngenta Seeds does not own or maintain offices, production facilities or other property in

Mississippi. Dow is incorporated under the laws of the state of Delaware and maintains its

principal place of business in Indianapolis, Indiana. Thus, Dow is neither incorporated in nor

maintains its principal place of business in Mississippi. Dow does not own or maintain offices,

production facilities or records within the state of Mississippi, nor does it have employees in

this state.

¶7. In the present action, Monsanto is seeking to obtain documents maintained by

nonresident nonparties outside of the State of Mississippi. In ruling on the motions to quash

the subpoenas duces tecum, the circuit court recognized that “there is no authority in

Mississippi directly addressing” this issue presented on appeal. However, the circuit court

found that Syngenta Crop, Syngenta Seeds and Dow were qualified to do business in

Mississippi and had designated agents for service of process. Although noting that the

documents in question were located outside of the State of Mississippi, citing Miss. Code Ann.

§ 79-4-15.05(b), the circuit court determined that because “a foreign corporation with a valid

certificate of authority has the same but no greater rights and has the same but no greater

privileges and . . . is subject to the same duties, restrictions, penalties and liabilities now or

later imposed on a domestic corporation,” a qualified nonresident corporation must also

comply with a properly-issued subpoena.

¶8. Although this is a case of first impression in this state, several jurisdictions have held

that a court’s subpoena power does not extend beyond the state in which it sits. In the case of

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In re Nat’l Contract Poultry Growers’ Ass’n, 771 So.2d 466 (Ala. 2000), a group of poultry

growers sued ConAgra, Inc., among several other defendants, alleging improper business

practices. ConAgra requested that the trial court issue a nonparty subpoena to The National

Contract Poultry Growers’ Association (“NCPGA”) for production of documents. Id. at 466.

NCPGA was incorporated in Arkansas with its principal place of business in Rushton,

Louisiana. Id. While NCPGA was not qualified to do business in Alabama, it did have an

affiliated state organization, the Alabama Contract Poultry Growers’ Association. Id. The

subpoena was served by certified mail on NCPGA at its office in Rushton, Louisiana. Id. at

467. The subpoena sought the production of documents kept at the Louisiana office. Id.

¶9. NCPGA refused to respond to the subpoena, and a motion to compel was filed by

ConAgra. Id. The trial court entered an order directing NCPGA to comply with the subpoena;

however, the NCPGA argued that the “trial court lacked the jurisdiction to issue, as well as

enforce, a subpoena directed to a nonparty located outside the State of Alabama.” Id. The trial

court once again rejected NCPGA’s argument. NCPGA appealed to the Alabama Supreme

Court which reversed the judgment of the trial court. The Supreme Court of Alabama

determined that:

The fact that NCPGA may have sufficient contacts with the State of Alabama to
subject it to the jurisdiction of the Alabama courts under the Alabama long-arm
personal-jurisdiction provisions is irrelevant to the question presented in this
case. However, a finding that NCPGA is subject to the personal jurisdiction of
Alabama courts would not necessarily mean that it was obligated to respond to
a subpoena by having to appear and produce documents in an Alabama court in
a lawsuit to which it is not a party. The underlying concepts of personal
jurisdiction and subpoena power are entirely different. Personal jurisdiction
is based on conduct that subjects the nonresident to the power of the Alabama
courts to adjudicate its rights and obligations in a legal dispute. For example, a

8
 foreign corporation that qualifies to do business in Alabama subjects itself to
the jurisdiction of an Alabama court, even if it is not a party to a lawsuit. Ex
parte Nissei Sangyo America, Ltd., 577 So.2d 912, 914-15 (Ala. 1991). By
contrast, the subpoena power of an Alabama court over an individual or a
corporation that is not a party to a lawsuit is based on the power and authority
of the court to compel the attendance of a person at a deposition or the
production of documents by a person or entity. See Ex parte Leverton, 536
So.2d 41, 44 (Ala. 1988) (state trial court does not have jurisdiction over a
nonparty, out-of-state witness).

When one seeks a subpoena to secure the attendance of a witness, or to procure
the production of documents, located outside the state, a different procedure is
warranted. Although we find no Alabama decision addressing this specific
situation, one commentator has stated the applicable procedure:
“Process beyond the jurisdiction of the courts to which these
rules apply must depend upon the existence of a rule or statute in
the other state or country which makes available compulsory
process to foreign litigants who desire to return to their home
state for trial with the fruits of discovery thus obtained. For our
rule extending this courtesy to foreign litigants who need
discovery in Alabama for actions pending outside of Alabama, see
Rule 28(c) which makes our Rule 45 available.”
1 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 45.2 (3d
ed.1996). This procedure accords with the procedure used in other jurisdictions
to secure the issuance of a subpoena for the attendance of a person, or the
production of documents from a nonparty, located outside the state's
boundaries. See, e.g., Craft v. Chopra, 907 P.2d 1109, 1111 (Okla.App. 1995);
Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1189 (La.
1994); In re Special Investigation No. 219, 52 Md.App. 17, 24-25, 445 A.2d
1081, 1085-86 (1982).

771 So. 2d at 469 (emphasis added). Therefore, the Alabama Supreme Court held that to

obtain documents located in Louisiana, “the subpoena had to be issued by a Louisiana court and

had to be served in accordance with Louisiana law.” Id. We likewise note that in making its

decision, the Alabama Supreme Court relied at least in part on cases from Maryland and

Oklahoma.

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¶10. In Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186 (La. 1994),

Phillips issued a subpoena to an out-of-state, nonparty corporation, CKB Petroleum, requiring

the nonparty to appear and produce documents at a deposition in Louisiana. The Supreme Court

of Louisiana held that “a Louisiana court has no statutory or other authority to order a

nonresident corporation, not a party to the litigation, to appear and produce documents at a

deposition to be taken in Louisiana, even when the nonresident corporation is otherwise

subject to the personal jurisdiction of the court.” Id. at 1187.

¶11. As in the case sub judice, this was an issue of first impression for the courts of

Louisiana. Like Monsanto, Phillips argued that CKB’s having an agent for service of process

was enough to subject CKB to the jurisdiction of the Louisiana courts. Id. Although the

Louisiana Supreme Court agreed with Phillips, the court further held that:

Finding CKB subject to the personal jurisdiction of Louisiana courts, however,
does not necessarily mean that this Texas corporation is bound to respond to a
subpoena, duly received, by having to appear and produce documents in a
Louisiana court in a lawsuit in which they are not a party. The concepts, and/or
underlying purposes, of personal jurisdiction and subpoena power are
simply different. Personal jurisdiction is based on conduct which subjects the
nonresident to the power of the Louisiana court to adjudicate its rights and
obligations in a legal dispute, sometimes arising out of that very conduct. On the
other hand, the subpoena power of a Louisiana court over a “person” which is not
a party in a lawsuit is based on the power and authority of the court to compel
the attendance at a deposition of that person in a legal dispute between other
parties. Whereas the long-arm statute extends Louisiana's personal jurisdiction
over persons or legal entities beyond Louisiana's borders, there is no similar
authority for extending the subpoena power of a Louisiana court beyond state
lines to command in-state attendance of nonresident nonparty witnesses.

Id. at 1187-88 (citing Hohner v. Travelers Ins. Co., 246 So.2d 727 (La. Ct. App. 4th Cir.

1971); La. Code of Civil Procedure article 1431 (now 1435)) (emphasis added).

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¶12. Syngenta Crop, Syngenta Seeds and Dow are nonresident nonparties to the underlying

lawsuit. These corporations maintain their principal places of business outside the state of

Mississippi, but have designated registered agents within the State of Mississippi to maintain

their business registrations and to permit service of process in connection with any legal

dispute arising from the companies’ conduct or contacts with the State. However, in the case

sub judice, Syngenta Crop, Syngenta Seeds and Dow are not involved in any legal disputes. The

fact that these nonresident corporations are subject to the personal jurisdiction of our state

courts in cases in which they are parties is of no moment in today’s case. Their registered

agents were merely used by Monsanto in an effort to gain access to documents located outside

of the state to be used in a legal dispute between Monsanto and Delta. As noted by the supreme

courts of our sister states, the basic concepts of personal jurisdiction and subpoena power are

vastly different. In re Nat’l Contract Poultry Growers’ Ass’n, 771 So.2d at 469; Phillips

Petroleum, 634 So.2d at 1187-88.

¶13. All of this having been said, we find a Mississippi statute to be of significant import in

aiding us in today’s case. Miss. Code Ann. § 79-4-15.10(a) states:

The registered agent of a foreign corporation authorized to transact business in
this state is the corporation’s agent for service of process, notice or demand
required or permitted by law to be served on the foreign corporation.

In addressing the interpretation and application of this statute, Monsanto and Syngenta Crop,

Syngenta Seeds and Dow say very little. In its brief, Monsanto asserts:

The [Mississippi Business Corporation] Act expressly provides for service on
foreign corporations that obtained a certificate of authority. Miss. Code Ann.
§ 79-4-15.10 (“Service of foreign corporations”). Where a registered agent has
been designated and is amenable to service as required by the Act, the Act
declares that the registered agent shall be the foreign corporation’s agent for all

11
 forms of service, this is, for any “process, notice or demand required or
permitted by law.” § 79-4-15.10(a). Where a registered agent has not been
maintained as required, the Act authorizes service by registered or certified mail
addressed to the secretary of the foreign corporation at its principal office.
§ 79-4-15.10(b).

On the other hand, Syngenta Crop, Syngenta Seeds and Dow counter Monsanto’s argument in

a footnote in their reply brief as follows:

Moreover, Monsanto’s argument renders the Act internally inconsistent.
Monsanto’s interpretation of the word “process” in § 79-4-15.05 to include
subpoenas is inconsistent with the method of service for such process provided
for by § 79-4-15.10, which states “a foreign corporation may be served by
registered or certified mail.” § 79-4-15.10(b). Subpoenas, however, cannot be
properly served by mail; they must be served in person. Miss. R. Civ. P.
45(c)(1). Accordingly, the term “process” simply cannot include subpoenas
without rendering the statute internally inconsistent. See Miss. Gaming
Comm’n v. Imperial Palace of Miss., 751 So.2d 1025, 1029 (Miss. 1999)
(applying the rules of statutory construction when interpreting several
provisions of an act, and stating that “[s]tatutes on the same subject, although in
apparent conflict, should if possible be construed in harmony with each other
to give effect to each”) (quoting Roberts v. Miss. Republican Party Executive
Comm., 465 So.2d 1050, 1052 (Miss. 1985) (internal quotes omitted). The fact
that a foreign corporation may be served in various ways under the Act pursuant
to § 79-4-15.10(d) means only that the process that can be mailed (Summons)
can also be served in different ways. Recognizing that the summons described
in the Act can be served in multiple ways in no way expands the definition of
process to include subpoenas, which must be served only one way – personally,
Miss. R. Civ. P. 45(c)(1).

We agree with Syngenta Crop, Syngenta Seeds, and Dow. As to Miss. R. Civ. P. 45(c)(1), the

applicable provisions state that “[s]ervice of the subpoena shall be executed upon the witness

personally.” Conversely, the provisions of Miss. R. Civ. P. 4 allow for different methods of

service of a summons, such as personally, by first-class mail (postage prepaid), by publication,

and by certified mail (return receipt requested). The unequivocal language of Section 79-4-

15.10(b) provides for service upon a foreign corporation “by registered or certified mail,

12
return receipt requested, addressed to the secretary of the foreign corporation” if the foreign

corporation has no registered agent, has withdrawn from transacting business in the state, or

has had its certificate of authority revoked. However, as correctly pointed out by Syngenta

Crop, Syngenta Seeds and Dow, Rule 45 (c)(1) does not provide for service of subpoena other

than by way of personal service. Thus in reading Section 79-4-15.10(a) and Section 79-4-

15.10(b), as well as our rules of civil procedure, in pari materia, there is no doubt that the

statutory language stating that a foreign corporation’s registered agent is that corporation’s

agent “for service of process, notice or demand required or permitted by law to be served on

the foreign corporation,” does not authorize a party’s service of a subpoena duces tecum upon

nonresident nonparties. Thus, we unhesitatingly find that the provisions of Section 79-4-

15.10(a) do not provide for the issuance of a subpoena duces tecum for service upon a foreign

corporation’s registered agent for service of process, when that foreign corporation is not a

party to the litigation. As we have hopefully made abundantly clear, the concepts of personal

jurisdiction and subpoena power are altogether different.

¶14. Because we find that there is no statutory or other authority which would allow a

Mississippi court to compel Syngenta Crop, Syngenta Seeds and Dow, as nonresident

nonparties, to produce documents located outside of this state, the orders denying the motions

to quash subpoenas duces tecum must be reversed.

¶15. Notwithstanding today’s decision, Monsanto is not without recourse. A review of the

twenty-three page trial court docket in the case sub judice reveals that the commission process

has been utilized by the parties and the trial court on numerous occasions. Although the docket

does not reflect at whose behest the commissions were issued by the trial court, the nonparties

13
submit to us, unchallenged, in their brief that Monsanto has utilized the commission process

in this case “on at least thirty-six occasions.” The commission process is hardly foreign to

Mississippi jurisprudence. See Barnes v. Confidential Party, 628 So.2d 283, 285 (Miss.

1993); Rogers v. Rogers, 290 So.2d 631, 632-33 (Miss. 1974); Int’l Paper Co. v. Wilson,

243 Miss. 659, 669, 139 So.2d 644, 648 (1962); Electric Reduction Co. of Canada, Ltd. v.

Crane, 239 Miss. 18, 24-25, 120 So.2d 765, 767 (1960). Thus, Monsanto, or any party, has

available the process whereby the circuit court could consider the issuance of a commission

to the appropriate out-of-state forum requesting that a subpoena duces tecum issue from that

forum for service on the nonparty resident in that state.

CONCLUSION

¶16. In sum, we hold that a Mississippi court cannot subpoena a nonresident nonparty to

appear and/or produce in Mississippi documents which are located outside the State of

Mississippi, even if that nonresident nonparty is subject in another context to the personal

jurisdiction of the court. We find that the circuit court improperly issued subpoenas duces

tecum to Syngenta Crop, Syngenta Seeds, and Dow, being nonresident nonparties, for

documents located outside of the State of Mississippi. Thus, we reverse the orders denying the

motions to quash subpoenas duces tecum filed by Syngenta Crop, Syngenta Seeds and Dow, and

we render judgment here quashing the subpoenas duces tecum served on Syngenta Crops

Protection, Inc., Syngenta Seeds, Inc., and Dow Agrosciences, LLC.

¶17. REVERSED AND RENDERED.

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 SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.

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