UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Proffe Publishing, Inc.

v. Civil No. 16-cv-93-JL Opinion No.

Wolfgang Lindner, et al.

MEMORANDUM ORDER

This case concerns a contract dispute between plaintiff

Proffe Publishing, Inc. (PPI), a financial newsletter publisher,

and defendant Wolfgang Lindner, whom PPI hired as its assistant

editor in 2011. PPI alleges that Lindner, once ensconced in his

new position, executed contracts that purported to serve PPI but

which, in reality, improperly enriched Lindner and various

associates. PPI has sued Lindner, two German-based companies

Lindner allegedly controls, x-services, UG and J.L. Consult,

GmbH, and two of Lindner’s hires, Peter Kunze and Egbert Woelk.

Alleging diversity jurisdiction,

, Proffe asserts

six causes of action: 1) conversion (against Lindner); 2)

fraudulent concealment (against all defendants); 3) breach of

fiduciary duty (against Lindner, Kunze and Woelk); 4) civil

conspiracy (against all defendants); 5) breach of the covenant of

good faith and fair dealing (against all defendants); and 6)

breach of contract (against all defendants). The defendants have

moved to dismiss the case in its entirety, arguing: that this court lacks subject matter jurisdiction to hear the case due to a

contractual forum selection clause; that the plaintiff’s claims

are barred by New Hampshire’s three-year statute of limitations;

and that all of plaintiff's claims fail to state a claim for

which relief can be granted. See Fed. R. Civ. P. 12(b) (1), (6).

The court has reviewed the parties’ submissions, and heard their

oral arguments. As a general matter, the parties’ disagreement

over which of several disputed contracts control this litigation

makes resolution of the case on a motion to dismiss difficult.

More specifically, the court finds that neither of the

potentially operative forum selection clauses are mandatory and

that the Complaint sufficiently alleges both monetary damages

that exceed the jurisdictional threshhold and facts that support

each cause of action. Finally, because the defendants’ statute

of limitations defense targets plaintiff’s claimed damages,

rather than its asserted causes of action, the court need not

resolve that issue at this early stage of litigation.

Accordingly, defendants’ motion is denied.

I. Background

The court culls the following facts from plaintiff’s first

amended Complaint and from information contained in documents on

which the complaint relies. Haley v. City of Bos.,

(1st Cir. 2011).

2 PPI publishes several weekly financial newsletters. One

such newsletter is Proffe's Trend Portfolio, of which Michael

Proffe is editor-in-chief. Defendant Lindner holds 15% of PPI's

stock and served as a director.1 In December 2011, PPI

contracted with Lindner to pay him 5000 euros per month to serve

as Trend Portfolio's assistant editor. Lindner’s

responsibilities included submitting weekly market reports to

Michael Proffe concerning PPI’s own investments. Although

Lindner never returned a signed copy of the contract with PPI,

the parties acted in accordance with its terms until May 2015.

In November 2015, PPI and defendant x-services agreed to an

oral contract, pursuant to which x-services would provide PPI

with information technology, administration, bookkeeping and

customer relations services for a fee of 4500 euros per month.

PPI alleges that Lindner is the sole member of x-services. Both

Lindner and x-services were required to submit monthly invoices

as a prerequisite to payment. Lindner’s role gave him access to

PPI’s financial accounts and information technology systems.

In August 2013, Lindner retained defendant Kunze, a friend

with software (but no management) experience, to act as CEO of

1 The date Lindner became a director is unclear. His directorship was terminated in January 2016.

3 PPI and assume some of Lindner’s responsibilities. Kunze was to

be paid $3000 per month. Lindner’s fee remained unchanged.

In May 2015, Proffe met with Lindner, Kunze and PPI’s

accountants to address Proffe’s concerns that Lindner wasn’t

performing his contractual obligations and that neither Lindner

nor Kunze were properly submitting documentation of PPI’s

revenues and accounting. In particular, Kunze authorized Lindner

to be paid for providing services as a vendor even though Lindner

hadn’t submitted invoices. The failure to document expenses

prevented PPI’s accountants from generating balance sheets or

profit and loss statements. PPI subsequently discovered that

these failures concealed numerous payments to Lindner or entities

he controlled (defendants x-services and J.L. Consult) totalling

$82,000 more than what they were due under their agreements with

PPI.

As a result of the May 2015 meeting, Lindner and Kunze

provided assurances that the Lindner-controlled entities would

not be paid without first submitting invoices. In addition, they

assured Proffe and the PPI accountants that they would timely

provide revenue information, bank and credit card statements and

vendors’ invoices so that accurate financial information could be

made available to PPI management.

4 Proffe also agreed –- on behalf of PPI –- to Lindner’s

request to modify Lindner’s independent contractor agreement.

The new agreement provided that J.L. Consult would assume

Lindner’s obligations under the 2011 contract, and increased the

monthly fee for vendor services from 5,000 to 7,000 euros.

Proffe signed the new contract on behalf of PPI and delivered it

to Lindner. As with the earlier contract, Lindner did not return

a signed copy. Nevertheless, PPI and Mr. Lindner acted according

to its terms for about six months.

Roughly six weeks after his May 2015 meeting with Proffe,

Lindner and the accountants, Kunze resigned from PPI citing a

conflict of interest. Nevertheless, in August 2015 Kunze signed

an agreement, in his role as CEO of PPI, to retain defendant

Woelk as an independent contractor to take over Kunze’s

responsibilities under his vendor agreement with PPI.2 Woelk was

paid $3,000 per month to work 4 hours per week under the August

2015 agreement.

Proffe first suspected during October 2015 that something

was awry at PPI when an x-service employee resigned and informed

Proffe that Lindner was engaging in questionable business and

2 Plaintiff alleges on information and belief that Woelk’s principal occupation is to provide technology consultant services to chemical vapor deposition users and equipment makers. Thus, PPI avers, it is doubtful that Woelk has any meaningful experience as a business manager.

5 accounting practices. Upon further examination, Proffe

discovered that neither Lindner nor Kunze provided PPI’s

accountants with any financial information after June 30, 2015,

and that J.L. Consult and x-services continued to receive

payments without first submitting invoices. Additionally, Proffe

discovered that Lindner, Kunze and Woelk had concealed the

unauthorized payments to Lindner, J.L. Consult and x-services in

amounts totaling at least $82,000, and that x-services failed to

maintain software systems and provide accountants with financial

information, in contravention of its agreement with PPI.

Lindner, Kunze and Woelk concealed the unauthorized payments by

limiting the paper trail. One method they employed was to list

PPI’s accounts payable in lump sums by aggregating multiple

vendors in a single ledger entry, thus hindering the discovery of

improper payments. In addition, while bank statements revealed

the precise amounts paid to vendors, only Lindner, Kunze and

Woelk had access to them.

On November 21, 2015, Proffe ordered the suspension of

payments to J.L. Consult and x-services until Lindner provided a

satisfactory explanation for these vendors’ failure to submit

invoices before being paid and for the failure to provide PPI’s

accountants with the financial information promised at the May

2015 meeting. Proffe gave Lindner a December 10, 2015 deadline

6 to comply. Lindner did not meet the deadline, and on December

18, 2015, made arrangements for PPI to pay x-services 6,250 euros

despite Proffe’s order to suspend payments to it. Lindner

proceeded to make it difficult, if not impossible, for PPI to

operate without his direct involvement. He blocked Proffe’s

access to PPI bank accounts and refused to turn over corporate

documentation, passwords for servers and firewalls, and

information to access PPI’s account with its internet service

provider. PPI spent a substantial amount of time and money

retaking control of its accounts. On January 17, 2016, Lindner

accessed the PPI accountants’ servers and downloaded all of PPI’s

bookkeeping information. He also accessed PPI’s accounts at a

financial institution at around the same time.

In January 2016, PPI shareholders holding 85% of PPI’s stock

voted to remove Lindner as a PPI director and to terminate PPI’s

agreements with Lindner, J.L. Consult and x-services effective

January 18, 2016. These shareholders also resolved to initiate

legal action against Lindner to recover PPI’s property. At

around the same time, PPI terminated Woelk’s vendor agreement and

demanded that he return all PPI property. A few weeks later,

Woelk turned over some of PPI’s property in a meeting with

Proffe. PPI alleges on information and belief that Woelk failed

to bring with him several binders of financial information that

7 PPI needed to file its tax returns. Consequently, PPI was forced

to incur the expense of recreating its 2015 financial records.

At the same time, Woelk also delivered to Proffe papers that

purported to be PPI contracts3 with J.L. Consult and x-services

bearing dates of May 20, 2015, and signatures by Lindner and

Kunze (“the Woelk contracts”). PPI argues that these purported

contracts are invalid because Proffe neither approved of nor

signed them, and did not even know about them until February 1,

2016. The Woelk contracts differ from the revised contracts

bearing Proffe’s signature in ways that are disadvantageous to

PPI but highly favorable to J.L. Consult and indirectly to

Lindner. For example, the contract increases the fees to be paid

to J.L. Consult while reducing its obligations to PPI. In

addition, the J.L. Consult contract was backdated to 2010,

contained no non-compete provision, gave J.L. Consult a

unilateral right to increase the fees charged by up to 5% per

year and provided J.L. Consult with broad indemnification rights

and highly favorable termination rights.

The Complaint alleges that Lindner continues to submit

“worthless” copy for weekly newsletters despite PPI’s termination

of its contracts with J.L. Consult and x-services and denial of

3 Plaintiff refers to these contracts as “The Bogus Contracts.” The court does not adopt that nomenclature, but mentions it only to point out that PPI disputes their validity.

8 access to records of PPI’s investments that form the basis for

the newsletters. In addition, Lindner continues to send invoices

on behalf of J.L. Consult and x-services in the amounts specified

in the contracts delivered by Woelk.

II. Applicable legal standard

To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff must state a claim to relief by pleading “factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Martinez v. Petrenko,

(1st Cir. 2015) (quoting

Ashcroft v. Iqbal,

(2009)). In ruling on such

a motion, the court accepts as true all well-pleaded facts set

forth in the complaint and draws all reasonable inferences in the

plaintiff’s favor. See, e.g., Martino v. Forward Air, Inc.,

(1st Cir. 2010). The court “may consider not only the

complaint but also facts extractable from documentation annexed

to or incorporated by reference in the complaint and matters

susceptible to judicial notice.” Rederford v. U.S. Airways,

Inc.,

(1st Cir. 2009) (internal quotations

omitted).

9 III. Legal Analysis

A. Forum selection clause

Before turning to plaintiff’s substantive claims, the court

first addresses the defendants’ argument that the court lacks

subject matter jurisdiction as a result of forum selection

clauses in the Woelk contracts, which state that both parties

(PPI and J.L. Consult) “consent to the personal jurisdiction of

the courts in Rostock, Mecklenburg-Vorpommem, Germany.” The

court declines to dismiss the case on these grounds.

Initially, the court notes that the First Circuit Court of

Appeals treats a motion to dismiss based on a forum-selection

clause as one alleging failure to state a claim under Fed. R.

Civ. P. 12(b)(6). Silva v. Encyclopedia Britannica, Inc.

(1st Cir. 2001). The Complaint highlights a

dispute as to whether the Woelk contracts are valid. That is not

an issue that can be resolved in the present procedural posture

-– a motion to dismiss under Rule 12(b)(6). Moreover, even if

the Woelk contracts are the operative ones, the above forum

clause appears to be permissive rather than mandatory, and thus

does not deprive this court of jurisdiction. As the Court of

Appeals has observed, “[p]ermissive forum selection clauses,

often described as ‘consent to jurisdiction' clauses, authorize

jurisdiction and venue in a designated forum, but do not prohibit

10 litigation elsewhere . . . In contrast, mandatory forum selection

clauses contain clear language indicating that jurisdiction and

venue are appropriate exclusively in the designated forum.”

Rivera v. Centro Medico de Turabo,

(1st Cir 2009)

(quoting 14D Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)

(emphasis added)). The clause presented here is such a “consent”

clause because it lacks any mandatory language and invokes the

parties’ “consent.” The court therefore finds that, even if

operable, the clause is permissive, rather than mandatory.

The defendants’ fallback forum selection position is that a

clause in the December 2011 PPI-Lindner and PPI-J.L. Consult

contracts (the contracts that plaintiff claims are the operative

agreements) also contain a forum selection clause which prevents

this court from hearing the case. The court disagrees. The

clause in the original contracts states that

“Nashua (NH) will be the court of jurisdiction for this

contractual agreement.”4 While there are state courts in Nashua,

N.H. -– Circuit and Superior -– the lack of specificity as to

which court is the subject of the clause, as well as the fact

that this court has jurisdiction over cases originating in

Nashua, N.H., counsels against a conclusive finding at this stage

4 Complaint, Exh. 1, 2 (doc. nos. 1-1 and 1-2).

11 of the litigation. Moreover the court is not convinced that the

language used is that of a mandatory clause. See, e.g. Arguss

Comm. Group, Inc. v. Teletron, Inc., No. 99-257-JD,

at *7, n.8 (D.N.H. Nov. 19, 1999) (“when only jurisdiction is

specified the clause will generally not be enforced without some

further language indicating the parties intent to make

jurisdiction exclusive” quoting Docksider, Ltd. V. Sea Tech.,

Ltd.

, 764 (9th Cir. 1989)) (and cases cited

therein).

Based on the foregoing, the court declines to dismiss the

case based on either of the forum selection clauses that may be

at issue.

B. Amount in controversy

The defendants also claim that the court lacks subject

matter jurisdiction over this case because the plaintiff has

failed to satisfy the amount in controversy requirement of

, which provides that “[t]he district courts shall

have original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs . . . .” Ordinarily, “the sum claimed by the

plaintiff controls if the claim is apparently made in good faith.

St. Paul Mercury Indem. Co. v. Red Cab Co.,

(1938). If the opposing party challenges the jurisdictional

12 amount, then the plaintiff must demonstrate “that it is not a

legal certainty that the claim involves less than the

jurisdictional amount.” Stewart v. Tupperware Corp.,

(1st Cir. 2004). Plaintiff alleges two categories of

damages: 1) $82,000 converted by Lindner5; and 2) the $100,000

cost to repair the damage caused by the defendants.5 Either

alone or taken together, the damage allegations satisfy the

plaintiff’s obligation to demonstrate the lack of a legal

certainty that its damages fall below the jurisdictional

threshhold. While the defendants forcefully argue that neither

amount is legally or factually supportable, these arguments do

not defeat the plaintiff’s showing. As such, the court finds

that the plaintiff satisfies the jurisdictional amount in

controversy requirement.

5 Complaint (doc. no. 1) at § 18. 5 Complaint (doc. no. 1) at §§ 18, 38.

13 C. Statute of limitations6

Defendants next argue that New Hampshire’s three-year

statute of limitations excludes any damage that accrued prior to

March 14, 2013. See

, I. At oral

argument, however, defense counsel indicated that this defense is

focused on limiting plaintiff’s damages to those occurring only

within the three years immediately prior to this lawsuit, rather

than striking claims from the suit. The court declines to

address this issue in the context of a motion to dismiss.

D. Count 1 - Conversion7

Delaware law defines conversion as “any distinct act of

dominion wrongfully exerted over the property of another, in

denial of [the plaintiff’s] right, or inconsistent with it.”

Kuroda v. SPJS Holdings, L.L.C.,

(Del. Ch.

2009) (quoting Drug, Inc. v. Hunt,

(Del. 1933).

PPI alleges that Lindner and the companies he controlled engaged

6 The parties apply New Hampshire law to the statute of limitations issue, and the court does as well. This is likely the correct approach, as PPI’s principal place of business is in New Hampshire. See Klaxon v Stentor Elec. Mfg. Co.,

(1941) (holding that federal court sitting in diversity applies forum state's choice of law rules); Waterfield v. Meredith Corp.,

(2011) (observing that New Hampshire applies its own statute of limitations “in any case in which either party is a New Hampshire resident or the cause of action arose in this State.”). 7 The parties apply Delaware law to the substantive claims. The court will follow suit.

14 in a scheme to misappropriate money to which they were not

entitled from PPI. Defendants originally argued that the

Complaint does not allege that Lindner personally benefitted from

the contracts. They also argue that Lindner, as a PPI officer

and director, had the authority to enter into contracts with x-

services and J.L. Consult. Therefore, they assert, a clause in

PPI’s Articles of Incorporation exculpates him and no cause of

action can lie. As to the first argument, the defendants

conceded at oral argument that a conversion can occur even if the

defendant does not personally enrich himself. Regardless, since

Lindner was allegedly the sole member of the LLCs with whom he

contracted, the Complaint sufficiently “allows the court to draw

the reasonable inference” that he benefitted personally.

Martino,

. Moreover, whether, as Lindner argues,

PPI’s Articles of Incorporation shield him from liability depends

on a question that cannot be answered at this stage of the

litigation –- whether he acted in bad faith, in breach of his

duty of loyalty, in his self-interest, or engaged in intentional

misconduct. In re Cornerstone Therapeutics Stockholders Litig.,

(Del. Ch. 2014) (“When a director is

protected by an exculpatory charter provision, a plaintiff can

survive a motion to dismiss by that director defendant by

pleading facts supporting a rational inference that the director

15 harbored self-interest adverse to the stockholders’ interests,

acted to advance the self-interest of an interested party from

whom they could not be presumed to act independently, or acted in

bad faith.”).

Finally, the defendants’ argument that this claim is more

properly brought as one for breach of a fiduciary duty of loyalty

and is therefore duplicative of Count 3 misses the mark because

plaintiffs are permitted to plead alternative theories. Fed. R.

Civ. P. 8(d)(2). The motion to dismiss is denied as to Count 1.

E. Count 2 – Fraudulent concealment

Proof of fraudulent concealment under Delaware law requires:

1) deliberate concealment by the defendant of a material past or

present fact, or silence in the face of a duty to speak; 2) that

the defendant acted with scienter; 3) an intent to induce the

plaintiff’s reliance upon the concealment; 4) causation; and 5)

damages resulting from the concealment. Nicolet, Inc. v. Nutt,

(Del. 1987). Defendants argue that this count

should be dismissed as to all defendants except Lindner because

the Complaint fails to specifically allege that x-service, J.L.

Consult, Kunze or Woelk took any affirmative action to defraud

PPI. As to x-service and J.L. Consult, the court finds that the

Complaint quite adequately alleges facts that the two Lindner-

controlled entities concealed facts regarding allegedly improper

16 payments to Lindner and to the entities from both PPI and its

accountants.

As to Woelk and Kunze, the argument that, “from their

perspective,” they were continuing under an oral agreement8 is

insufficient to support dismissal at this stage, where the

plaintiff alleges that, as Chief Operating Officers, they failed

to disclose that Lindner and his companies were not submitting

invoices even though they were being paid. In addition, the

Complaint explicitly alleges that Kunze reneged on his May 2015

promise not to pay Lindner in the absence of invoices. As for

Woelk, the Complaint alleges that he assumed Kunze’s

responsibilities in August 2015 and that payments to Lindner

continued after Proffe ordered them suspended. Finally, it was

Woelk that delivered the contracts that PPI claims are fraudulent

in February 2016. Whether they ultimately prove to be

legitimate, as the defendants claim, is not the issue presently

before the court. The allegations in the complaint are

sufficient to state a claim for fraudulent concealment against

all defendants.

8 Memorandum of Law (doc. no. 21-1) at 8.

17 F. Count 3 – Breach of Fiduciary Duty

A claim for breach of fiduciary duty under Delaware law has

two elements: 1) that a fiduciary duty existed and 2) that the

defendant breached that duty. Beard Research v. Kates,

(Del. Ch. 2010). Directors, or others with high-ranking

corporate positions “unquestionably owe fiduciary duties” to the

corporation.

. Thus, the remaining question is

whether the Complaint sufficiently alleges that Lindner, Kunze or

Woelk breached their duties of loyalty and care to PPI. In re

Rural Metro Corp.,

(Del. Ch. 2014). The court

finds that it does, as the allegations that Kunze and Woelk

improperly paid the Lindner companies or failed to report their

lack of invoices could be a breach. To the extent that the

defendants rely on the business judgment rule, an exculpatory

clause in PPI’s Articles of Incorporation, or 8 Del. C. §

102(b)(7)9 to insulate Woelk and Kunze from liability, those

9 As relevant here, 8 Del. C. § 102(b)(7) provides that an entity's articles of incorporation may contain:

A provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation

18 defenses are dependent on facts more appropriately presented

under Rule 56 (motion for summary judgment) or Rule 50 (motion

for judgment as a matter of law). See supra, pp. 14-15. The

motion to dismiss Count 3 is denied.

G. Count 4 – Conspiracy

Under Delaware law, the elements of a civil conspiracy are:

1) a confederation or combination of two or more persons; 2) an

unlawful act done in furtherance of the conspiracy; and 3) actual

damage. AeroGlobal Capital Mgmnt., LLC v. Cirrus Industries,

Inc.,

, 437 n.8 (Del. 2005). Defendants argue that

the Complaint fails to set forth facts in support of the second

and third elements because, it argues, the only contracts that

were signed by the Lindner-controlled companies and PPI permitted

the payments that are the subject of this lawsuit. But, as

previously noted, the legitimacy and applicability of those

contracts is in dispute, and thus they cannot be the basis of

dismissal. Woelk argues that his failure to return PPI records

“was not unlawful.” However, as the plaintiff points out, the

records unquestionably belonged to PPI, not Woelk. At this stage

of law; . . . or (iv) for any transaction from which the director derived an improper personal benefit.

19 of the proceedings that allegation is sufficient to proceed. The

motion to dismiss Count 4 is denied.10

G. Counts 5 and 6 – Breach of contract and of the covenant of good faith and fair dealing11

The court addresses these two counts in reverse order.

Resolution of the breach of contract count requires resolution of

the dispute as to which contracts are operative. The defendants’

motion is premised on the assertion that the 2015 contracts are

the only ones in play. As previously noted, the Complaint

alleges otherwise. Defendants also allege that Lindner would

have complied with his obligations but for PPI’s anticipatory

breach. At a minimum, this suggests that he did not fulfill his

obligations. Whether he was justified in doing so is not fodder

for Rule 12(b)(6) because of the court’s obligation to “accept[]

as true all well-pleaded facts set forth in the complaint and

draw[] all reasonable inferences in the plaintiff's favor.”

Martino,

. More generally, defendants’ broad-brush

argument that the Complaint lacks any indication of what the

defendants were supposed to do and what they did falls short.

The complaint sufficiently alleges that each defendant took

10 Defendants’ motion makes no specific argument as to Kunze in the context of Count 4. 11 Because the parties briefed these two causes of action together, the court addresses them in one section.

20 actions that were at least inconsistent with, and at most,

outright violated, the agreements that PPI alleges were in place.

Whether PPI’s allegations withstand scrutiny is a question for

another day in another procedural posture.

As to Count 5, the covenant of good faith and fair dealing

under Delaware law is “best understood as a way of implying terms

in the agreement, whether employed to analyze unanticipated

developments or to fill gaps in the contract’s provisions.”

Dunlap v. State Farm Fire and Cas. Co.,

(Del.

2005). Existing contract terms control, however, such that

implied good faith cannot be used to circumvent the parties’

bargain, or to create a “free-floating duty . . . unattached to

the underlying legal document.”

(citations omitted). Thus,

one generally cannot base a claim for breach of the implied

covenant on conduct authorized by the terms of the agreement.

Defendants argue simply that the Complaint lacks specific

allegations of any breach of an implied obligation. The court

disagrees. The allegations that defendants engaged in

transactions that benefitted themselves, but were hidden from, or

in contravention of directions from, PPI are sufficient to allow

the case to proceed.

21 IV. Conclusion

The defendants’ forum selection clause and amount-in-

controversy arguments fail, and they largely withdrew their

damages based statute of limitations arguments. Their

substantive arguments are inappropriate for disposition under

Rule 12, and will be better suited under Rule 56 or at trial.

Defendant's motion to dismiss12 is therefore DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 22, 2016

cc: David K. Pinsonneault, Esq. Jeremy David Eggleton, Esq.

12 Doc. no. 21.

22