Merrell v. Smith

Merrell v. Smith, 

.


STATE OF NORTH CAROLINA                  IN THE GENERAL COURT OF JUSTICE
                                             SUPERIOR COURT DIVISION
MECKLENBURG COUNTY
                                               19 CVS 21650 [MASTER FILE]
                                                       Related Cases:
CARL E. MERRELL; LYLE RANSON;                          19 CVS 22027
JEANETTE RANSON; CRAIG S.                              19 CVS 23665
MILLER; WANDA EDWARDS
MILLER; and ROBERT J. NASTASE,

                    Plaintiffs,

v.                                            ORDER AND OPINION ON
                                            DEFENDANTS METROPOLITAN
JAMES M. SMITH; JENNIFER
                                           LIFE INSURANCE COMPANY AND
SMITH; and CAROLINA BEVERAGE
                                           MSI FINANCIAL SERVICES, INC.’S
GROUP, LLC f/k/a CAROLINA BEER
                                            PARTIAL MOTION TO DISMISS
& BEVERAGE, LLC,

                    Defendants.


     1.   THIS MATTER is before the Court on the Partial Motion to Dismiss (the

“Motion to Dismiss”) filed by defendants Metropolitan Life Insurance Company

(“MetLife”) and MSI Financial Services, Inc. (“MSI”) (together, the “MetLife

Defendants”) in Strack, et al. v. Smith, et al., (19 CVS 22027). (Mot. to Dismiss, ECF

No. 62.) The Strack action is one of three Mecklenburg County actions currently

pending before the Court involving claims against Carolina Beverage Group, LLC,

f/k/a Carolina Beer & Beverage, LLC (“CBB”), James Michael Smith (“Michael

Smith”), Jennifer Smith (Michael Smith and Jennifer Smith together, the “Smiths”),

the MetLife Defendants, and the estate of the late Richard C. Siskey (“Siskey”), as

administered by F. Lane Williamson (“Siskey’s Estate”). The Court refers to the
three 1 actions—(1) Merrell, et al. v. Smith, et al., (19 CVS 21650); (2) Strack; and (3)

Cochrane, et al. v. Smith, et al., (19 CVS 23665)—together as the “CBB Cases.” 2

    2.      Through the Motion to Dismiss and pursuant to North Carolina Rule of

Civil Procedure 12(b)(6), the MetLife Defendants seek dismissal of the breach of

fiduciary duty and constructive fraud claims brought against them by plaintiffs

Jeffrey A. Strack, Penny N. Strack, James C. Wilson, Pamela Boileau, Dallas Pendry,

Jr., Mallory Johnson, Rita Dilling, Carolyn Crozier, Thomas J. Crozier, Jr., and Kent

Kalina (together, “Plaintiffs”) in the Strack case. 3      (Mot. to Dismiss 1–2).      The

operative complaint challenged by the Motion to Dismiss is Plaintiffs’ Second

Amended Complaint. (Second Am. Compl., ECF No. 33.)

    3.      For the reasons set forth in this Order and Opinion, the Court GRANTS

the Motion to Dismiss.

         Hemmings & Stevens, PLLC, by Aaron C. Hemmings, for plaintiffs.

         Alexander Ricks, PLLC, by Alice C. Richey, Mary K. Mandeville, and
         Benjamin F. Leighton; and Morgan, Lewis & Bockius, LLP, by T. Peter
         R. Pound and John A. Vassallo, III, for defendants Metropolitan Life
         Insurance Company and MSI Financial Services, Inc.

Robinson, Judge.

1  A fourth case involving similar allegations, Short v. Smith, et al., has been voluntarily
dismissed. (ECF No. 86 [19 CVS 23856].)

2 Although the Court has not determined whether the CBB Cases shall be consolidated for
trial, the parties in each case, with the Court’s approval, have agreed on a coordinated
approach to discovery and motions practice. (See ECF Nos. 25, 34 [19 CVS 21650]; 34, 49 [19
CVS 22027]; 18, 33 [19 CVS 23665].)

3  Scott Keck and Roy Lynam, who were originally plaintiffs in the Strack case, have
voluntarily dismissed all their claims against the MetLife Defendants. (ECF Nos. 102, 129.)
The MetLife Defendants are not parties to the Merrell litigation, and the claims against the
MetLife Defendants in the Cochrane case have been voluntarily dismissed. (ECF Nos. 24 [19
CVS 21650]; 113 [19 CVS 23665].)
               I.     FACTUAL AND PROCEDURAL BACKGROUND

    4.    The Court does not make findings of fact on a Rule 12(b)(6) motion to

dismiss. Instead, the Court recites only the factual allegations, taken from the

Second Amended Complaint and its attachments, that are relevant to the Court’s

determination of the Motion to Dismiss.

    A.    The Parties

    5.    Plaintiffs are former members of CBB, a North Carolina limited liability

company. (Second Am. Compl. ¶¶ 4–6, 20.) Plaintiffs were also investment clients 4

of the MetLife Defendants during the time period relevant to the Second Amended

Complaint. (Second Am. Compl. ¶¶ 2–3.)

    6.    MetLife is a New York corporation. (Second Am. Compl. ¶ 23.) MetLife

sells life insurance policies and other financial products. (Second Am. Compl. ¶ 23.)

MSI is a Delaware corporation. (Second Am. Compl. ¶ 24.) MSI was a wholly owned

subsidiary of MetLife during the time period relevant to the Second Amended

Complaint. (Second Am. Compl. ¶ 24.) MSI is registered with the Securities and

Exchange Commission as a broker-dealer under section 15(b)(1) of the Securities

Exchange Act of 1934 and is also a registered investment advisor under N.C.G.S. §

78C-2. (Second Am. Compl. ¶ 24.) At all times relevant to the Second Amended

Complaint, the MetLife Defendants had offices in Charlotte, North Carolina, and they




4 Plaintiffs Carolyn Crozier, Thomas J. Crozier, Jr., and Kent Kalina allege that they were
insurance clients of the MetLife Defendants, as well as investment clients. (Second Am.
Compl. ¶¶ 312, 335.)
conducted business in this State under the registered trade name “Wall Street

Capitol.” (Second Am. Compl. ¶¶ 23–24.)

    B.    The Alleged Fraudulent Scheme at the Center of the CBB Cases

    7.    The CBB Cases all arise from the same alleged fraudulent scheme carried

out by Siskey and the Smiths. The Court previously recited in detail the factual

allegations surrounding this scheme in its 22 December 2020 Order and Opinion on

CBB’s motion to dismiss in each of the CBB Cases. See Merrell v. Smith, 

, at *2–14 (N.C. Super. Ct. Dec. 22, 2020). Therefore, the Court here will

only summarize the core allegations regarding the scheme, taken from the Second

Amended Complaint, to provide context for the Court’s analysis. 5

    8.    Plaintiffs allege that they each purchased ownership interests in CBB

during the early 2000s based on Siskey’s advice. (Second Am. Compl. ¶ 4–5.) At the

time, Siskey worked as an insurance agent and securities broker for the MetLife

Defendants, and he also had a separate preexisting business relationship with

Michael Smith, CBB’s majority interest holder and Chief Executive Officer. 6 (Second

Am. Compl. ¶¶ 70–73.) After Plaintiffs purchased their CBB ownership interests,

they received information about matters relating to the company from CBB, Michael




5  As observed by the Court in its 22 December 2020 Order and Opinion, the operative
complaints in the CBB cases “each contain nearly verbatim factual allegations about the
alleged fraudulent scheme underpinning the CBB Cases.” See Merrell, 

, at *2 n.3.

6The Second Amended Complaint does not allege any business dealings between the MetLife
Defendants and CBB or Michael Smith. (See generally Second Am. Compl.)
Smith, Jennifer Smith (Michael’s wife and an employee of CBB), or Siskey. (Second

Am. Compl. ¶¶ 19, 79.)

   9.      According to Plaintiffs, in 2006, Michael Smith selectively notified Siskey,

who was not a member of CBB, that a private equity firm had expressed interest in

purchasing CBB and that CBB was also close to finalizing a lucrative bottling

franchise deal with Austria-based company Red Bull. (Second Am. Compl. ¶¶ 80–81,

88.) After learning this inside information, Siskey allegedly devised a fraudulent

scheme to purchase Plaintiffs’ respective membership interests in CBB, at less than

the true value of the interests, prior to CBB’s sale. (Second Am. Compl. ¶ 82.)

Plaintiffs claim that the Smiths helped Siskey defraud Plaintiffs by concealing the

inside information about CBB from Plaintiffs, and in return for their help, Siskey

gave the Smiths many lavish gifts. (Second Am. Compl. ¶¶ 83–88, 91.)

   10.     Siskey allegedly acquired Plaintiffs’ shares of CBB stock by employing two

tactics. One tactic was to advise some Plaintiffs that the time was right to redeem

their CBB stock for a profit. (Second Am. Compl. ¶¶ 149–51, 168–71, 260–63, 282–

84, 301–03, 323–25, 342–45.) After these Plaintiffs agreed to redeem their stock,

Siskey bought the stock for himself. (See, e.g., Second Am. Compl. ¶ 345.) Siskey’s

other tactic was to offer to purchase the CBB stock directly from a Plaintiff at a price

higher than the price the Plaintiff had paid for the stock. (Second Am. Compl. ¶¶

238–42.)

   11.     The Smiths processed the transactions that transferred Plaintiffs’ CBB

stock to Siskey, and Michael Smith approved those transactions as the holder of a
majority interest in CBB. (Second Am. Compl. ¶¶ 103, 105.) Plaintiffs allege that

Siskey and the Smiths never disclosed to Plaintiffs the same CBB inside information

Michael Smith had previously given to Siskey. (Second Am. Compl. ¶¶ 389–90.)

Plaintiffs assert that they would not have sold their CBB stock had they known about

this information. (Second Am. Compl. ¶ 389.)

    12.   From late 2007 through early 2008, Siskey purchased 15.25 shares of CBB

stock from his clients, including Plaintiffs, for a total sum of $3,872,500. (Second Am.

Compl. ¶¶ 102, 489, Ex. 22.) When CBB was eventually sold to a private equity firm,

SunTx Partners, Siskey allegedly received over $20,000,000 in distributions based on

the 15.25 shares of CBB stock he had fraudulently purchased from his clients,

including Plaintiffs, while Plaintiffs received nothing from the sale. (Second Am.

Compl. ¶¶ 130–32.)       At about that same time, CBB also finalized a profitable

distribution contract with Red Bull.       (Second Am. Compl. ¶¶ 88, 135.)          SunTx

Partners ultimately sold its majority interest in CBB to Byrnwood Partners in early

2018, leading to more distributions for CBB’s members, including Siskey’s Estate,

but not Plaintiffs, as a result of that transaction. (Second Am. Compl. ¶¶ 137–38.)

    C.    Allegations Against the MetLife Defendants

    13.   Plaintiffs seek to hold the MetLife Defendants directly liable for the alleged

fraudulent scheme perpetrated by Siskey and the Smiths. 7 (See generally Second Am.

Compl.)




7Plaintiffs also seek to hold the MetLife Defendants vicariously liable for Siskey’s alleged
misconduct based on the respondeat superior doctrine. (See Second Am. Compl. ¶ 530.)
   14.    Plaintiffs allege that the MetLife Defendants allowed Siskey to continue

providing financial advice, through the Wall Street Capitol Charlotte office, to

MetLife clients, including Plaintiffs, even after the MetLife Defendants became

aware in 2004 that Siskey had been disciplined by the National Association of

Securities Dealers (“NASD”) for his involvement in fraudulent securities

transactions. 8 (Second Am. Compl. ¶¶ 49–59.) According to Plaintiffs, although “it

was foreseeable that . . . Siskey would continue these illegal transactions and

harm . . . other MetLife customers going forward,” the MetLife Defendants took no

action to stop Siskey from engaging in future misconduct, such as informing their

clients of Siskey’s disciplinary history. (Second Am. Compl. ¶¶ 51, 59.)

   15.    In addition, Plaintiffs allege that the MetLife Defendants were closely

monitoring “Siskey’s client files, marketing material, incoming and outgoing

correspondence,” as well as his “movement of funds,” in the wake of Siskey’s NASD-

issued discipline. (Second Am. Compl. ¶¶ 52, 366.) As a result of this enhanced

supervision of Siskey, Plaintiffs assert that the MetLife Defendants were “aware”

that “Siskey was engaged in insider trading with regard to his purchase of [Plaintiffs’]

ownership shares in [CBB],” since distribution checks pertaining to these

transactions were mailed to Siskey at the Wall Street Capitol Charlotte office.

(Second Am. Compl. ¶¶ 367–68.) Plaintiffs also claim that the MetLife Defendants

did not inform their clients, including Plaintiffs, of Siskey’s participation in this

alleged insider trading scheme. (Second Am. Compl. ¶ 371.)


8 These particular fraudulent securities transactions by Siskey were not related to his alleged

participation in the fraudulent scheme at the center of the CBB Cases.
     16.   Finally, Plaintiffs assert that they “reasonably relied upon MetLife’s

globally recognized name and reputation as a safe, secure investment company and

placed their trust and confidence in MetLife to look out for their best interests

regarding the transactions conducted with . . . Siskey and MetLife’s Wall Street

Capitol [Charlotte] office.” (Second Am. Compl. ¶ 369.)

     17.   Based on the above allegations, as well as the allegation that some plaintiffs

were “inexperienced” and “unsophisticated” investors, 9 Plaintiffs allege that the

MetLife Defendants “held all the cards” and thus owed a fiduciary duty to Plaintiffs.

(Second Am. Compl. ¶¶ 99, 145, 163, 234, 276, 315, 338, 370.)

     D.    Procedural History

     18.   Plaintiffs initiated the Strack litigation on 14 November 2019. (ECF No.

3.) On 19 December 2019, the Strack action was designated to the North Carolina

Business Court by Order of the Chief Justice of the North Carolina Supreme Court,

(ECF No. 1), and assigned to the undersigned by Order of the Chief Business Court

Judge, (ECF No. 2).

     19.   Plaintiffs filed the Second Amended Complaint on 10 March 2020, asserting

several claims against CBB, the Smiths, the MetLife Defendants, and Siskey’s

Estate. 10 (Second Am. Compl.) Against the MetLife Defendants, Plaintiffs have

brought claims for (1) breach of fiduciary duty, (2) fraud by omission and concealment,



9Plaintiffs Rita Dilling and Dallas Pendry do not allege that they were inexperienced and/or
unsophisticated investors. (Second Am. Compl. ¶¶ 252, 293.)

10 Plaintiffs have voluntarily dismissed their claims against Home Run Holdings, LLC, an
entity that was originally a defendant in the Strack case. (ECF No 56.)
(3) violation of the North Carolina Securities Act, (4) violation of the North Carolina

Investment Advisers Act, (5) constructive fraud, (6) negligent supervision in the

alternative, and (7) vicarious liability/respondeat superior. (Second Am. Compl. 70,

76, 85–86, 92–93, 102, 105.)

   20.    The MetLife Defendants filed the Motion to Dismiss on 1 June 2020, along

with a supporting brief. (Mot. to Dismiss; Mem. in Supp., ECF No. 63.) As noted, the

MetLife Defendants only move for dismissal of the breach of fiduciary duty and

constructive fraud claims raised against them.

   21.    After full briefing, the Court held a hearing on the Motion to Dismiss by

video conference on 20 November 2020 (the “November 20 Hearing”), at which all

parties were represented by counsel.       The Motion to Dismiss is now ripe for

resolution.

                               II.   LEGAL STANDARD

   22.    When ruling on a Rule 12(b)(6) motion to dismiss, the Court views the

complaint’s allegations in the light most favorable to the plaintiff. See Christenbury

Eye Ctr., P.A. v. Medflow, Inc., 

 (2017). The Court analyzes “whether, as

a matter of law, the allegations of the complaint . . . are sufficient to state a claim

upon which relief may be granted under some legal theory[.]” Harris v. NCNB Nat’l

Bank, 

 (1987). As part of this analysis, the Court treats all well-

pleaded factual allegations as true. See Krawiec v. Manly, 

 (2018).

The Court, however, is not required “to accept as true allegations that are merely

conclusory, unwarranted deductions of fact, or unreasonable inferences.” Good Hope
Hosp., Inc. v. N.C. Dep’t of Health & Human Servs., 

 (2005)

(citation omitted). Additionally, the Court may consider documents attached to and

incorporated into the complaint without converting the Rule 12(b)(6) motion to

dismiss into a motion for summary judgment. See Moch v. A.M. Pappas & Assocs.,

LLC., 

 (2016).

   23.    Granting a Rule 12(b)(6) motion to dismiss is proper when “(1) the

complaint on its face reveals that no law supports the plaintiff’s claim; (2) the

complaint on its face reveals the absence of facts sufficient to make a good claim; or

(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”

Corwin v. British Am. Tobacco PLC, 

 (2018) (citation omitted). The

Supreme Court of North Carolina “routinely uses [this] Rule 12(b)(6) standard . . . in

assessing the sufficiency of complaints in the context of complex commercial

litigation.” 

 at 615 n.7.

                                   III.   ANALYSIS

   24.    The MetLife Defendants contend that Plaintiffs’ breach of fiduciary duty

and constructive fraud claims against them “should be dismissed because Plaintiffs

failed to allege facts establishing a fiduciary relationship with [the MetLife

Defendants].” (Mot. to Dismiss 2; see also Mem. in Supp. 2.)

   25.    Although breach of fiduciary duty and constructive fraud are legally

distinct claims, see White v. Consol. Planning, Inc., 

, 294–95 (2004),

both claims here rest on an alleged fiduciary relationship between Plaintiffs and the

MetLife Defendants. (See Second Am. Compl. ¶¶ 370, 479; see also Mem. in Opp’n 1–
6, ECF No. 95.) A fiduciary relationship “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.”

Lockerman v. S. River Elec. Membership Corp., 

, 635 (2016)

(quoting Abbitt v. Gregory, 

 (1931)). A fiduciary relationship may

arise by operation of law (a de jure fiduciary relationship) or based on the facts and

circumstances surrounding the underlying relationship between the parties (a de

facto fiduciary relationship). 

 at 635–36.

   26.    Plaintiffs do not argue that they had a de jure fiduciary relationship with

the MetLife Defendants, and the facts alleged in the Second Amended Complaint do

not reveal such a relationship. As previously explained by this Court, North Carolina

law currently does not recognize a de jure fiduciary relationship premised on an

underlying broker-dealer/investor relationship, the underlying relationship that

Plaintiffs allege existed here between them and the MetLife Defendants. See, e.g.,

Aldridge v. Metro. Life Ins. Co., 

, at *68–69 (N.C. Super. Ct.

Dec. 31, 2019); Edwards v. Vanguard Fiduciary Trust Co., 

,

at *17 (N.C. Super. Ct. Dec. 21, 2018); NNN Durham Office Portfolio 1, LLC v. Grubb

& Ellis Co., 

, at *99 (N.C. Super. Ct. Dec. 5, 2016).

   27.    Plaintiffs do contend, however, that they allege facts in the Second

Amended Complaint that “establish a de facto fiduciary duty” owed by the MetLife

Defendants to Plaintiffs. (Mem. in Opp’n 2.) The Court disagrees.
   28.    “The standard for finding a de facto fiduciary relationship is a demanding

one: ‘Only when one party figuratively holds all the cards—all the financial power or

technical information, for example—have North Carolina courts found that the

special circumstance of a [de facto] fiduciary relationship has arisen.’ ” Lockerman,

250 N.C. App. at 636 (quoting S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 

 (2008)). For a de facto fiduciary relationship to exist, there must

be “confidence reposed on one side, and resulting domination and influence on the

other.” Dalton v. Camp, 

 (2001) (emphasis in original) (quoting

Abbitt, 

); see also Stone St. Partners, LLC v. Williamson, 

, at *34 (N.C. Super. Ct. July 26, 2018) (stating that facts showing

“domination and control” are “necessary for the creation of a de facto fiduciary duty”).

   29.    With these principles in mind and having reviewed the allegations

contained within the Second Amended Complaint, the Court concludes that Plaintiffs’

factual allegations do not permit the conclusion that a de facto fiduciary relationship

arose between them and the MetLife Defendants.

   30.    Although Plaintiffs allege in conclusory fashion that the MetLife

Defendants “held all the cards and owed . . . Plaintiffs a fiduciary duty of care,”

(Second Am. Compl. ¶ 370), the facts alleged in the Second Amended Complaint do

not support this assertion. To begin with, Plaintiffs, do not plead facts showing that

the MetLife Defendants had any, let alone all, the financial power or technical

information with respect to the CBB transactions at issue in this litigation (i.e., the

transferring of Plaintiffs’ CBB ownership interests to Siskey). Indeed, there are no
allegations that Plaintiffs treated the MetLife Defendants as a source of technical

information regarding matters pertaining to CBB, a company that was not affiliated

with the MetLife Defendants. Instead, Plaintiffs allege that they received

information about CBB matters from CBB, Michael Smith, Jennifer Smith, or Siskey.

   31.    Moreover, Plaintiffs fall short of alleging facts that would permit a

conclusion that the MetLife Defendants had the type of domination and influence

over Plaintiffs that could give rise to a de facto fiduciary relationship. As set forth in

the Second Amended Complaint, Siskey advised Plaintiffs on the disputed CBB

transactions and the Smiths processed/approved the transactions.

   32.    The MetLife Defendants, on the other hand, did not exercise any control

over Plaintiffs’ decision to sell their CBB stock. See Lockerman, 250 N.C. App. at

635–40 (affirming a trial court’s grant of summary judgment in the defendant’s favor

as to the plaintiffs’ contention that a de facto fiduciary relationship existed, where

the plaintiffs exercised some control over the disputed transaction and thus could not

show that the defendant figuratively held all the cards); Aldridge, 

, at *69–71 (concluding that the plaintiffs failed to allege facts sufficient to support

a de facto fiduciary relationship, where, among other things, they failed to plead facts

showing that the defendants had any domination over them or that the plaintiffs had

to “rely exclusively on their investment advisors’ advice and actions”).

   33.    That some of the Plaintiffs were “inexperienced” and “unsophisticated”

investors does not change this result. Cf. White, 166 N.C. App. at 293–94 (holding

that the plaintiffs’ allegation that they “lack[ed] . . . expertise in financial affairs”
coupled “with further facts and circumstances set forth in the complaint, adequately

plead the existence of a fiduciary relationship”) (emphasis added).

   34.    The same goes for Plaintiffs’ allegation that the MetLife Defendants were

aware, but failed to inform Plaintiffs, of Siskey’s disciplinary history and the alleged

insider trading scheme. Indeed, in Aldridge, a case involving an alleged Ponzi scheme

perpetrated by Siskey, this Court dismissed a constructive fraud claim against the

MetLife Defendants, concluding that the operative complaints did not reveal a de

facto fiduciary relationship between the plaintiff investors and the MetLife

Defendants even though the plaintiffs had alleged that the MetLife Defendants were

aware of Siskey’s disciplinary history and his involvement in the Ponzi scheme, but

failed to share this information with the plaintiffs. See Aldridge, 

, at*14–15, *17–18, *65–71.

   35.    Thus, Plaintiffs fail to state claims against the MetLife Defendants for

breach of fiduciary duty and constructive fraud.

   36.    One additional point bears mention. Citing to Hardin v. KCS Int’l, Inc.,

 (2009), Plaintiffs argue in their opposition brief that “if this

Court finds no fiduciary relationship” between Plaintiffs and the MetLife Defendants,

the Court should nonetheless determine that Plaintiffs have stated a claim for

constructive fraud based on a purported “duty” that the MetLife Defendants “owed”

Plaintiffs “due to the extraordinary circumstances of knowingly allowing . . . Siskey,

a MetLife employee previously found in violation of securities laws, to continue to

manage [the] Wall Street Capitol [Charlotte] office and sell securities,” (Mem. in
Opp’n 6). The Hardin case, however, did not deal with the pleading requirements for

a constructive fraud claim, see Hardin, 

 (“[The plaintiff’s]

evidence fails . . . to establish the necessary elements of a claim for fraud, and we

therefore affirm the trial court’s order.”) (emphasis added), and Plaintiffs’ theory is

not supported by North Carolina law.

                                  IV.    CONCLUSION

     37.     For the foregoing reasons, the Court hereby GRANTS the Motion to

Dismiss. Plaintiffs’ claims for breach of fiduciary duty and constructive fraud against

the MetLife Defendants are DISMISSED. 11

           SO ORDERED, this the 4th day of March, 2021.


                                           /s/ Michael L. Robinson
                                           Michael L. Robinson
                                           Special Superior Court Judge
                                             for Complex Business Cases




11  In light of the Court’s ruling, the Court need not consider the MetLife Defendants’
contention, raised for the first time at the November 20 Hearing, that they cannot be held
vicariously liable for Siskey’s alleged breach of fiduciary duty and constructive fraud.