Perdue Farms Inc. v. L & B Transport, LLC

FILED
Sep 05 2023, 9:20 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Danny E. Glass U.S. SECURITY ASSOCIATES,
Adam S. Glass INC.; JENNIFER FREEMAN;
Fine & Hatfield P.C. BRIAN HILL; AND CARL NELSON
Evansville, Indiana Edward M. O’Brien
Wilson Elser Moskowitz Edelman
Gregory L. Mast & Dicker LLP
Stephen A. Kahn Louisville, Kentucky
Fields Howell, LLP
Atlanta, Georgia

IN THE
COURT OF APPEALS OF INDIANA

Perdue Farms, Inc., September 5, 2023
Appellant, Court of Appeals Case No.
22A-PL-2989
v. Appeal from the Daviess Circuit
Court
L&B Transport, LLC; U.S. The Honorable Gregory A. Smith,
Security Associates, Inc.; Judge
William Richardson; Jennifer Trial Court Cause No.
Freeman; Brian Hill; Carl 14C01-2008-PL-491
Nelson; ABC Corporation,
Appellees.

Opinion by Judge Bailey
Judge Kenworthy concurs.
Judge Crone dissents with separate opinion.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 1 of 18
 Bailey, Judge.

Case Summary
[1] In this interlocutory appeal, Perdue Farms, Inc. (“Perdue”) appeals the trial

court’s order granting a motion to dismiss its complaint against U.S. Security

Associates, Inc. (“U.S. Security”) and U.S. Security’s employees Jennifer

Freeman, Brian Hill, and Carl Nelson (collectively, “the Employees”). Perdue

raises two issues for our review, which we revise and restate as whether the

court erred when it granted U.S. Security and the Employees’ motion to dismiss

the complaint pursuant to a forum selection clause. We reverse and remand

with instructions.

Facts and Procedural History
[2] Perdue is a corporation incorporated under the laws of Maryland. It is

registered to do business in Indiana and owns and operates a poultry processing

plant (“the Plant”) in Daviess County, which processes approximately one

million pounds of meat per day. On September 16, 2015, Purdue entered into a

service agreement (“the Agreement”) with U.S. Security pursuant to which

U.S. Security agreed to provide “security services” to Perdue at the Plant.

Appellant’s App. Vol. 2 at 116. The agreement included the following forum

selection clause:

This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland. Any lawsuit
filed by either party arising from or related to this Agreement

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 2 of 18
 shall be brought in the United States District Court for the
District of Maryland. The parties hereby consent to the
jurisdiction of said court.

Id. at 126.

[3] On August 18, 2018, William Richardson, who was employed by L&B

Transport (“L&B”) made an unannounced delivery to the Plant outside of

normal delivery hours.1 When Richardson arrived at the Plant’s gate, he

informed the Employees that he was delivering bleach. The Employees did not

verify Richardson’s statement but allowed him into the Plant and directed him

to the bleach tank. Richardson then connected his truck to the bleach tank and

began filling it. Richardson did not monitor the transfer process but instead

returned to the interior of his truck.

[4] Contrary to his statements to the Employees, Richardson was not transporting

bleach but was transporting aluminum chloride.2 When Richardson transferred

the aluminum chloride into the bleach tank, a “chemical reaction” ensued that

caused “severe amounts of fog and foam to enter multiple rooms of the Plant.”

Id. at 26. As a result, Perdue had to shut the Plant down for multiple days to

clean it and to repair or replace damaged equipment. Perdue sustained

damages of over $1.2 million.

1
We have obtained the underlying facts from Perdue’s amended complaint.
2
Perdue has not made any allegation that Richardson acted intentionally or maliciously when he transferred
the aluminum chloride into the bleach tank.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 3 of 18
[5] On May 19, 2021, Perdue filed an amended complaint in the Daviess Circuit

Court against L&B; Alex C. Ferguson, LLC; Southern Ionics, Inc.; U.S.

Security; William Richardson; the Employees; and ABC Corporation.3 In that

complaint, Perdue alleged in relevant part as follows:

• Count 1: Negligence and Gross Negligence against Richardson and
L&B;
• Count 2: Misrepresentation against Richardson and L&B;
• Count 3: Negligent Hiring, Training, Retraining, and Supervising
against L&B;
• Count 4: Negligence Per Se against Richard and L&B;
• Count 5: Strict Liability against Richardson and L&B;
• Count 8: Negligence against U.S. Security and the Employees
• Count 9: Negligent Hiring, Training, Retraining, and Supervising
against U.S. Security; and
• Count 10: Breach of Contract against U.S. Security

[6] On June 16, U.S. Security and the Employees filed a Trial Rule 12(B)(3)

motion to dismiss Perdue’s complaint pursuant to the forum selection clause or,

in the alternative, to enforce the forum selection clause. U.S. Security and the

Employees asserted that the forum selection clause was “valid, enforceable, and

binding,” that “it is reasonable and just,” and that “there is no evidence of fraud

or overreaching” from either party. Id. at 103. They further asserted that it was

“freely negotiated and bargained-for between two sophisticated, commercial

entities.” Id. at 104.

3
Alex C. Ferguson, LLC and Southern Ionics, Inc. were subsequently dismissed as parties. L&B Transport,
Richardson, and ABC Corporation are not involved in this appeal.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 4 of 18
[7] Perdue responded and asserted that, [u]nder the circumstances,” the Indiana

court is “the only venue that is appropriate to address all of the claims raised in

the lawsuit[.]” Id. at 135. Specifically, Perdue asserted that “enforcing the

forum selection clause will result in multiple concurrent lawsuits” because there

“are claims and parties . . . that the forum selection clause cannot apply to.” Id.

at 136. Perdue maintained that, if the court were to grant the motion to

dismiss, the Indiana lawsuit would “still continue” as to certain parties,

including Richardson and L&B, and it would be “forced to file a separate action

involving the same facts and issues” against U.S. Security and the Employees in

Maryland. Id. Thus, Perdue asserted that the forum selection clause is “not

enforceable under the circumstances.” Id. at 139 (bold and capitalization

removed). In the alternative, Perdue argued that the Employees could not rely

on the forum selection clause because they “were not parties or third-party

beneficiaries” to the agreement. Id. at 143.

[8] U.S. Security and the Employees replied and asserted that their liability “is not

‘inseparably tied’ to nor contingent upon the liability of any other defendant in

this action.” Id. at 153. In particular, they alleged that “[w]hether Perdue

proves its breach of contract or negligence claims against [them] has no bearing

or influence on Perdue’s proof of liability of or ability to recover against” the

other defendants. Id. U.S. Security and the Employees further asserted that the

Employees were in privity with U.S. Security with respect to the Agreement

such that the forum selection clause applied to the Employees.

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[9] On October 13, 2022, the court entered its order granting U.S. Security and the

Employees’ motion to dismiss. Specifically, the court found that the forum

selection clause was “valid and enforceable” and that Perdue’s claims against

U.S. Security and the Employees “are governed by the forum selection clause.”

Appellant’s App. Vol. 2 at 19. This interlocutory appeal ensued.

Discussion and Decision
[10] Perdue contends that the trial court erred when it granted U.S. Security and the

Employees’ motion to dismiss. The parties both agree that our review of this

issue is de novo.4 See Appellant’s Br. at 14-15; Appellees’ Br. at 14 n.7. Perdue

specifically contends that the court erred when it granted the motion to dismiss

based on the forum selection clause because, under the circumstances, that

clause was not valid and enforceable.

[11] It is well settled that parties to a contract “are generally free to bargain for the

terms that will govern their relationship.” O’Bryant v. Adams, 123 N.E.3d 689,

692 (Ind. 2019). Further, Indiana “puts a premium on parties’ freedom of

contract, and we presume that contracts represent the parties’ freely bargained

agreements.” Id. at 694. As such, this Court has stated that “‘forum selection

provisions are enforceable if they are reasonable and just under the

circumstances and if there is no evidence of fraud or overreaching such that the

4
Indeed, the court ruled on a paper record. In such instances, our review is de novo. See Sunburst Chemical,
LLC v. Acorn Distributors, Inc., 922 N.E.2d 652, 653 (Ind. Ct. App. 2010).

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 6 of 18
 agreeing party, for all practical purposes, would be deprived of a day in court.’”

Carmeuse Lime & Stone v. Illini State Trucking, Inc., 986 N.E.2d 271, 276-77 (Ind.

Ct. App. 2013). Additionally, “the provision must have been freely

negotiated.” Id. at 277. And “the party claiming [unfairness] should bear a

heavy burden of proof.” Id. (citations omitted; alteration in original). Thus, to

determine whether a forum selection is valid, we must examine whether it is

freely negotiated and just and reasonable under the circumstances. See Farm

Bureau General Ins. Co. of Michigan v. Sloman, 871 N.E.2d 324, 329 (Ind. Ct. App.

2007).

[12] Perdue does not make any argument to suggest that the forum selection clause

was not freely negotiated. Indeed, while Perdue is the party seeking to

invalidate the forum selection clause, that clause was clearly drafted to benefit

Perdue. Again, the forum selection clause provides that any lawsuit arising

from or related to the Agreement shall be filed in the United States District

Court for the District of Maryland. And Perdue is a “Maryland corporation”

with a “primary corporate location” in Salisbury, Maryland. Appellant’s App.

Vol. 2 at 116. Further, both parties are large companies with seemingly equal

bargaining power. Thus, we find that the forum selection clause was freely

negotiated.

[13] Still, Perdue contends that the forum selection clause is not just and reasonable

under the circumstances. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585

(1991), the Supreme Court outlined several factors to consider in determining

whether a forum selection clause is just and reasonable. In that case, the

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 Supreme Court validated a forum selection clause included on a cruise line

ticket because: (1) it limited the fora in which the cruise line could potentially

be subject to suit; (2) it dispelled any confusion about where suits arising from a

conflict must be brought and defended; and (3) the cruise line’s customers

received a benefit in the form of reduced fares that reflected the savings that the

cruise line enjoyed by limiting the fora in which it could be sued. Id. at 593-94.

[14] While the Court’s decision in Carnival is based on federal law and not binding

on Indiana state courts, “Indiana has adopted the Supreme Court’s ruling from

Carnival as it relates to the validity of forum selection clauses.” Sloman, 871

N.E.2d at 329. Furthermore, our Court added an additional consideration

beyond the three identified by the Supreme Court: “the threat of multiple

lawsuits,” that is, where a forum selection clause restricting suit to a particular

venue “will likely lead to multiple lawsuits involving the same parties and the

same issues of liability.” Id. And this Court identified that factor to “be of

paramount concern” because, “[g]enerally speaking, multiple litigation

involving similar suits is not favored.” Id.

[15] On appeal, Perdue asserts that, under the particular circumstances of this case,

the forum selection clause is not just and reasonable. In particular, Perdue

contends that “enforcing the [forum selection clause] will result in multiple

litigation involving the same general issues[.]” Appellant’s Br. at 17. Perdue

contends that the “central issue in this case is the apportionment of liability”

between U.S. Security/the Employees and L&B/Richardson. Id. And Perdue

asserts that L&B and Richardson “are not subject to” the Agreement or the

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 8 of 18
 forum selection clause and that neither is a “Maryland citizen nor do they have

any apparent connection to Maryland” such that Maryland would have no

personal jurisdiction over L&B or Richardson. Id. at 18. Thus, Perdue

contends that, if the forum selection clause is enforced, it “will have no choice

but to litigate a separate action in Maryland against [U.S. Security and the

Employees], while also maintaining this Lawsuit [in Indiana] against” L&B

and Richardson. Id. Purdue maintains that “[b]oth lawsuits would be based on

the same [i]ncident, the same facts and legal issues, and virtually the same

discovery and exchange of evidence.” Id. And Perdue contends that the two

lawsuits “will almost certainly lead to inconsistent verdicts and apportionment

of liability[.]” Id. at 20.

[16] To support its assertion, Perdue relies on this Court’s opinion in Sloman. In

that case, Sloman was involved in an automobile accident with Janet Lund.

Sloman was insured by Farm Bureau General Insurance Company of Michigan

(“Farm Bureau”). 871 N.E.2d at 326. Sloman filed a claim with Farm Bureau,

which ultimately denied his claim. Id. at 327. Sloman filed suit against Farm

Bureau in Indiana despite a forum selection clause in his policy requiring him

to file suit in the county and state in which he had purchased the policy, which

was Cass County, Michigan. Id. Based on the forum selection clause, Farm

Bureau filed a motion to dismiss or, in the alternative, a motion for summary

judgment. Id. The court denied Farm Bureau’s motion.

[17] On appeal, Farm Bureau asserted that the forum selection clause was just and

reasonable. This Court first noted “the unique challenges” presented by the

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 case because it did not just focus “on the two parties in privity of contract

(Sloman and Farm Bureau)” but also “additionally considered Lund, the

uninsured motorist.” Id. at 328. The Court then noted that it must “determine

what effect a third party uninsured motorist has on” its analysis. Id. It then

considered the “two unique components,” including “(1) the potential liability

and damages owed by Lund to Sloman and (2) Farm Bureau’s liability to

Sloman under his uninsured motorist provision.” Id.

[18] The Court concluded that the forum selection clause had been freely negotiated

and then turned to whether it was just and reasonable under the circumstances.

Id. at 330. In its analysis, the Court specifically noted that there was a “case

within a case” because Farm Bureau would only be liable to Sloman if the

accident was the fault of Lund and if Sloman suffered damages. Thus, the

Court stated that “any action against Farm Bureau on the contract is

inseparably tied to the legal liability of Lund, and Sloman’s action against Lund

is but the first link in an unbroken chain leading to the contractual liability of

Farm Bureau.” Id. The Court then turned to the three Carnival factors.

[19] Regarding the first factor, the Court held that implementing the forum selection

clause “would not result in a limitation of the fora in which it potentially could

be subject to suit” because “even if Sloman were required to file suit against

Farm Bureau in Michigan, any suit maintained against Lund must be filed in

Indiana.” Id. at 331. Similarly, the Court concluded that the forum selection

clause did not conserve judicial resources because it “le[d] to greater confusion

and expenditure of greater judicial resources” due to suits in multiple states. Id.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 10 of 18
 at 332. And it found no economic benefit to the customer because the forum

selection clause “increase[d] the cost for both parties and fail[ed] to provide

Farm Bureau with any certainty as to where a lawsuit may arise.” Id.

[20] After considering the three Carnival factors, the Court then turned to the

consideration of “paramount concern”—whether the forum selection clause

would result in multiple suits. Id. The Court specifically concluded that

“enforcement of the clause would require Sloman to maintain his action against

Lund in Indiana while also having to litigate the same case against Farm

Bureau in Michigan.” Id. at 333. Because “none of the [Carnival] policy

reasons” were present and because “avoidance of multiple lawsuits involving

the same parties and the same issues has historically been of great concern in

Indiana,” the Court held that the Indiana venue was “proper” and affirmed the

court’s denial of Farm Bureau’s motion. Id.

[21] Here, Perdue contends that Sloman is analogous such that we should reach a

similar result. On the other hand, U.S. Security and the Employees argue that

the Agreement’s forum selection clause is valid and enforceable. First, they

assert that “the distance between Indiana and the preselected forum of

Maryland may be traversed by automobile within several hours.” Appellees’

Br. at 17 (quotation marks omitted). Second, they contend that Perdue has not

presented any “evidence of fraud or overreaching” and that “[n]o such evidence

exists.” Id. at 19. Finally, they contend that Sloman is inapplicable because

their liability “is not ‘inseparably tied’ to nor contingent upon the liability of

any other defendant to this action.” Id. at 22. Rather, they maintain that each

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 “theory of liability advanced by Purdue against the other defendants is

predicated on separate and distinct factual allegations.” Id. at 23.

[22] To support their argument, U.S. Security and the Employees rely on this

Court’s opinion in Carmeuse. In that case, John Ruiz, an employee of a

subcontractor of Illini State Trucking (“Illini”), was injured while on the

property of Carmeuse. 986 N.E.2d at 272. Ruiz filed a complaint against

Carmeuse but ultimately settled out of court. Id. at 272-73. Carmeuse then filed

a complaint against Illini in Lake Superior Court. 986 N.E.2d at 274. Illini

filed a motion to dismiss the complaint based on a forum selection clause

contained in an agreement between the two parties, which required any action

to be filed in Pennsylvania. The trial court granted the motion to dismiss. Id. at

275.

[23] On appeal, this Court held that Carmeuse had not made any “claim that the

forum selection clause was not freely negotiated.” Id. at 277. The Court also

noted that, because Pennsylvania was Carmeuse’s principal place of business, it

appeared as though the “forum selection clause was negotiated for” Carmeuse’s

benefit.” Id. at 278. And the Court noted that the “distance between” Indiana

and Pennsylvania “may be traversed by automobile in several hours,” such that

the Pennsylvania venue was not “too remote.” Id. at 279. As such, the Court

held that the forum selection clause was not unjust or unreasonable and

affirmed the court’s dismissal of the lawsuit. Id.

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[24] Here, we agree with Perdue that the instant case is much more analogous to

Sloman than to Carmeuse, and we hold that the forum selection clause is not just

and reasonable under the facts of this case. First, as in Sloman, we note that this

case presents a “unique challenge” that requires us to not only consider the

parties to the contract—Perdue and U.S. Security/the Employees5—but also

Richardson and L&B. 871 N.E.2d at 328. Perdue has alleged that Richardson,

while employed by L&B, delivered aluminum chloride to the Plant and

proceeded to empty it into a bleach container without supervising the process,

which caused a chemical reaction and over $1.2 million in damages. Perdue

also alleged that the incident occurred because the Employees allowed

Richardson into the Plant after hours and directed him to the bleach containers

without confirming that he was indeed delivering bleach. Based on those

actions, Perdue filed a complaint against all relevant parties. It will be up to a

fact-finder to determine whether any or all parties are liable and, if it finds all

parties to be liable, the amount for which each party is responsible for the

damages. Consequently, any action against U.S. Security and the Employees is

“inseparably tied” to the legal liability of Richardson and L&B. Id. at 330.

[25] Further, there is no dispute that the forum selection clause does not apply to

Richardson or L&B, and there is no dispute that a Maryland court would not

have personal jurisdiction over either Richardson or L&B. As a result, if we

5
The parties dispute whether the Agreement applies to the Employees. Because we hold that the forum
selection clause is unjust and unreasonable under the circumstances of this case, we need not decide whether
the Agreement applies to Employees.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 13 of 18
 were to enforce the forum selection clause, Perdue would be forced to litigate its

claims against U.S. Security and the Employees in Maryland while maintaining

an action against Richardson and L&B in Indiana. That is the very problem

Sloman seeks to avoid. Indeed, for those very reasons, the Carnival, factors are

not present. Enforcing the forum selection clause would not limit the fora for a

lawsuit, it would not conserve judicial resources, and it would not reduce costs.

See id. at 331-32. In particular, we note that the result of enforcement of the

forum selection clause would be two-fold. First, as discussed above,

enforcement of the clause would require Perdue to maintain its action against

Richardson and L&B in Indiana while having to litigate substantially the same

case against U.S. Security and the Employees in Maryland, which would

almost certainly result in differing, if not completely conflicting, outcomes for

Perdue. Second, there is no dispute that Perdue, but not U.S. Securities or the

Employees, have connections to Maryland. If we were to enforce the forum

selection clause, an Indiana company and its employees would be required to

defend themselves in Maryland, and all witnesses to the events that occurred in

Indiana would be required to participate in a Maryland lawsuit, which does not

conserve resources.

[26] Finally, while we acknowledge that there are some similarities between the

present case and Carmeuse, as this Court held in Sloman, the issue of multiple

lawsuits is of “paramount concern[.]” 871 N.E.2d at 323. And the Court in

Carmeuse specifically concluded that there was “no possibility of multiple

lawsuits” because Carmeuse had already settled with Ruiz, who was a party

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 that would not have been bound by the forum selection clause contained in the

contract between Carmeuse and Illini. Id. at 279. As such, Carmeuse is readily

distinguishable from the instant case.

[27] Under the specific circumstances of this case, where one incident resulted in a

complaint against multiple parties—some of whom are subject to the forum

selection clause and others who are not, enforcement of the forum selection

clause would result in multiple lawsuits involving the same facts and evidence

in multiple locations. We therefore hold that Perdue has met its heavy burden

to demonstrate that enforcement of the forum selection clause would not be just

or reasonable.

Conclusion
[28] In sum, while we generally favor parties’ freedom of contract, under the

particular facts of this case, the forum selection clause is not just and reasonable

because enforcing the forum selection clause would result in Perdue having to

litigate two interrelated lawsuits involving the same parties, the same evidence,

and the same issues in two different venues, which has historically been of great

concern in Indiana. Accordingly, we reverse the trial court’s order granting

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 U.S. Security and the Employees’ motion to dismiss, and we remand for further

proceedings.6

[29] Reversed and remanded with instructions.

Kenworthy, J., concurs.

Crone, J., dissents with separate opinion.

6
Because we agree with Perdue that the forum selection clause should not be enforced under these specific
circumstances, we need not address its argument that that the agreement does not apply to the Employees.

Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 16 of 18
 Crone, Judge, dissenting.

[30] I believe that Perdue has no valid basis for crying “foul” here and chickening

out on the forum selection clause that it undoubtedly insisted on including in its

contract with U.S. Security to shield it from being haled into court in Indiana.

[31] The majority observes that “Indiana ‘puts a premium on parties’ freedom of

contract, and we presume that contracts represent the parties’ freely bargained

agreements.’” Slip op. at 7 (quoting O’Bryant, 123 N.E.3d at 692). “[T]o

determine whether a forum selection is valid, we must examine whether it is

freely negotiated and just and reasonable under the circumstances.” Id. The

majority acknowledges that “both parties are large companies with seemingly

equal bargaining power” and correctly finds that “the forum selection clause

was freely negotiated.” Id. at 8.

[32] But, for several reasons, I think that the majority has laid an egg in relying on

Sloman to conclude that the clause is not just and reasonable under the

circumstances. First, the disparity of the bargaining power between the insurer

and the insured in Sloman was vast. Second, the Sloman court’s multiple-

lawsuits consideration was a dubious (and apparently spontaneous) add-on to

the criteria set forth in Carnival. Third, the issues regarding liability in Sloman

would have been exactly the same in both lawsuits, since the second lawsuit

would have affected only the coverage issue. Here, there could be different

outcomes regarding liability among the various defendants, and there is nothing

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 unjust or unreasonable about forcing Perdue “to litigate its claims against U.S.

Security and the Employees in Maryland while maintaining an action against

Richardson and L&B in Indiana” pursuant to the forum selection clause that it

freely bargained for. Id. at 14. The nonparty defense is tailor-made for such

situations. Based on the majority’s reasoning, a party could avoid a forum

selection clause that it freely agreed to simply by adding additional local parties

as defendants.7

[33] As for the Carnival factors themselves, I find them to be of limited relevance in

this case. Unlike a cruise ship, which may travel to and host customers from

dozens of different jurisdictions, Perdue’s Indiana plant is stationary and likely

operated and serviced almost exclusively by persons and entities that reside or

are registered in Indiana; thus, Perdue could potentially be subject (or subject

others) to suit only in Indiana or Maryland. That same consideration also

dispels any confusion about where suits arising from a conflict must be brought

and defended. And customer savings are not an issue in this dispute between

two sophisticated corporate entities. In sum, Perdue should have to live with

the contractual bargain that it freely struck with U.S. Security, and therefore I

respectfully dissent.

7
In contracting with U.S. Security to provide security for its Indiana plant, Perdue should have reasonably
anticipated that it might have to file suit against third-party Indiana residents as well as U.S. Security and the
Employees, who I assume arguendo are privies. Thus, Perdue also should have reasonably anticipated the
attendant concerns regarding multi-jurisdiction discovery, inconsistent verdicts, and claim preclusion that are
trotted out as a parade of horribles in its appellate brief.

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