COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. NO. 2021 …

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COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

SUFFOLK, SS. NO. 2021-P-0390

CHARLES M. LIEBER,

Appellant,

v.

PRESIDENT AND FELLOWS OF

HARVARD COLLEGE (HARVARD

CORPORATION) and KATHERINE

N. LAPP,

Appellees.

APPELLANT’S APPLICATION FOR DIRECT APPELLATE REVIEW

BY THE SUPREME JUDICIAL COURT

Date: May 25, 2021

Respectfully submitted,

CHARLES M. LIEBER

By his Attorneys,

McCORMACK SUNY, LLC

/s/ David R. Suny

David R. Suny [BBO #600326]

Andrea L. Davulis [BBO #693761]

MCCORMACK SUNY LLC

100 Cambridge Street, 14th Floor

Boston, MA 02114

Ph: (857) 220-9296

E-Mail: [email protected]

[email protected]

Supreme Judicial Court for the Commonwealth DAR: DAR-28290 Filed: 5/25/2021 4:48 PM

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NOW COMES the Appellant Charles M. Lieber and, pursuant to G.L. c.

211A, § 10(A) and Mass. R. App. P. 11, hereby submits this application for direct

appellate review by the Supreme Judicial Court. This case involves an employer’s

failure to provide mandatory advancement of defense costs and fees to an

employee who is facing a criminal proceeding resulting from actions he took

within the scope of his employment. The purpose of advancement, which has been

described by multiple courts as a “critical” right, is to provide sufficient funds for a

robust defense in light of the time- and cost-intensive nature that is typical of

“white collar” defense early in the course of a criminal proceeding; where

advancement is not awarded early, the benefit of it is lost. Advancement under

Massachusetts law is a matter of first impression, it implicates federal and state

constitutional rights regarding representation by counsel and the right to remain

silent, and is a matter of public interest in that it is a policy designed to attract

skilled corporate officers and, in this case, the denial of advancement has chilled

academic freedom. In further support of this Application, the Appellant relies on

the following:

Statement of Facts and Prior Proceedings

Professor Lieber has taught and conducted research for almost 30 years at

Harvard. The United States Attorney’s Office for the District of Massachusetts is

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prosecuting Professor Lieber for allegedly making false statements to the National

Institute of Health and the Department of Defense made in connection with

Harvard University-based research grants in 2018 and 2019, filing a false tax

return, and failing to report a foreign bank and financial accounts. Professor

Lieber has pleaded Not Guilty to these charges and affirmed under oath that he

“expect[s] to assert at trial, among other things, that [he] lacked criminal intent and

that [he] acted at all relevant times in good faith.” Professor Lieber is unable to

provide information to Harvard refuting the criminal allegations without waiving

his right to remain silent under the Fifth Amendment and Article XII, or divulging

his criminal defense strategy.

Harvard has issued an Indemnification Policy which undisputedly provides

for indemnification and advancement of defense fees and costs. The Policy

provides that a “Qualified Person” acting in a “Covered Role” shall be indemnified

against all liabilities arising from such activities, including but not limited to

“judgments . . . fines and penalties, and reasonable counsel fees,” in connection

with any civil, criminal or other proceeding. Regarding “Advancement of

Expenses,” Harvard has agreed that it shall pay or reimburse counsel fees and

other expenses reasonably incurred by a “Qualified Person” in defending any

claim, demand, action, suit or other proceeding that may be indemnifiable under

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the Policy, in advance of the final disposition thereof. The advancement provision

also contains a contradictory and ambiguous sentence that: “This paragraph shall

not apply if it is determined that it is reasonably likely that the person seeking

indemnification will not be entitled to indemnification under this policy.”

Defendant, Ms. Lapp, on behalf of Harvard, deferred making a decision on

indemnification, but refused to provide advancement because of her purported

determination that Professor Lieber had violated internal Harvard policies and,

thus, his claim was unlikely to ultimately be indemnifiable.

There are no additional facts that could be elicited through discovery that

would shed light on the issue before this Court because the argument is solely

based on the structure of the Indemnification Policy and the public policies at

issue, which are immediately implicated.

Professor Lieber initiated this lawsuit on October 9, 2020, by filing a

Complaint and a Motion for Preliminary Injunction in Middlesex Superior Court.

[Superior Court Docket, attached as Exhibit A.] The Defendants’ Opposition to

the Motion for Preliminary Injunction was supported by affidavits of Harvard

personnel that draw conclusions as to intent – and even as to ultimate questions of

law in this case – drew on a mere “temporal proximity” of some emails and

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disclosures. The same nucleus of facts form allegations in the criminal complaint

and the basis for Harvard’s denial of advancement.

The Court issued its decision denying the Motion for Preliminary Injunction

(hereinafter “PI Decision”) six months after a hearing on March 12, 2021. [PI

Decision, attached as Exhibit B.] The factual basis of the Court’s PI Decision

comprises a three-page recitation of the allegations drawn from the affidavit of the

FBI special agent filed in support of the criminal complaint, followed by a half a

page describing the non-disclosures allegedly made by Professor Lieber. These

“facts” constitute nothing more than allegations made against Professor Lieber in

the criminal action, and personal beliefs and opinions of Harvard administrators

based on mere speculation. The Superior Court erroneously stated that Professor

Lieber did not dispute these “facts,” and relied on the affidavits of the Harvard

administrators as corroborative evidence. [See id. at 2, 4 n.2, 10.] The Court

concluded that Professor Lieber was unlikely to succeed on the merits because the

policy afforded Harvard discretion in awarding advancement. [See id. at 10.]

Professor Lieber has served a Motion for Reconsideration of the PI Decision,

which is still pending. [See Ex. A.]

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Professor Lieber has also filed a Petition for Relief under G.L. c. 211, § 3,

which was recently denied by the Single Justice. [See Docket No. SC-2021-133.]

Professor Lieber is appealing the judgment of the Single Justice to the full panel.

Issues of Law

1. Where advancement and indemnification are distinct concepts, Harvard’s

Indemnification Policy provides for mandatory advancement, and the

alleged exception to the advancement provision applies to a “person seeking

indemnification,” is the award of advancement mandatory so long as a

written undertaking is provided?

2. Does Harvard’s Indemnification Policy require mandatory advancement

irrespective of Harvard’s argument that the advancement promise is

discretionary because Harvard’s basis for denying advancement (a) violates

strong public policy toward granting advancement; (b) ignores the

Professor’s attestation that he acted without criminal intent, in good faith,

and that he is Not Guilty of the charges alleged; and (c) infringes on the

Professor’s constitutional rights under the Fifth and Sixth Amendments to

the U.S. Constitution and Article XII of the Commonwealth’s Declaration of

Rights by requiring him to “proving” his innocence of the criminal charges

to Harvard prior to resolution of the underlying criminal proceeding?

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3. Where Professor entered a Not Guilty plea and attested under oath that he

lacked criminal intent and at all times acted in good faith, did the Superior

Court err when it concluded that Professor Lieber does not dispute the

factual allegations in the criminal complaint, which are echoed in the

Affidavits of Harvard’s witnesses, and that he does not contest Harvard’s

determination that it was reasonably likely that he violated University

policies?

4. Did the Superior Court err in giving weight to Harvard’s status as a non-

profit corporation where it is not supported in statute or case law?

5. Did the Superior Court err when it held that to establish “irreparable harm,”

Professor Lieber must show that his criminal defense attorneys would

abandon their representation of him unless the Court ordered Harvard to

advance his defense costs?

Issue nos. 1 and 2 were raised in the Motion for Preliminary Injunction.

Issue nos. 3-5 were raised in Professor Lieber’s Motion for Reconsideration of the

PI Decision, which was docketed in the lower court on April 13, 2021 and remains

pending.

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Argument on Issues of Law

I. Harvard’s Indemnification Policy is Mandatory.

The Superior Court erred in concluding that Harvard retains discretion to

award advancement. [Ex. B, pp. 10-11.] In Stockman v. Heartland Partners, 2009

WL 2096213 (Del Ch. 2009), the first sentence of the company’s bylaws mandated

advancement by using the word “shall.” The second sentence contradicted the first

sentence, purporting to give the corporation the discretion to deny advancement.

The Stockman court concluded that the only reasonable reading was that the

advancement clause was mandatory and “any ambiguity must be resolved against”

the corporation. Id. at *1.

Similarly, Harvard could have, but neglected to, write the policy in a manner

that simply and clearly stated advancement would be a matter left to the

indemnitor’s discretion. Harvard wants its policy to say if the Executive Director

determines that the employee seeking advancement is reasonably likely, based on

the information that she (the Executive Director) knows at the time, to not be

entitled to indemnification in the future because the employee violated a standard

of conduct, then Harvard will not advance fees. However, Harvard’s policy states

that fees shall be advanced if the employee delivers a written undertaking to repay,

which has occurred. Then it states that fees shall be advanced if the person seeking

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indemnification – not the person seeking advancement – is reasonably likely to not

be entitled to indemnification. From Harvard’s perspective, at best the policy is

ambiguous, which would still result in a decision in favor of Professor Lieber. See

Paolino v. Mace Security Int’l, Inc., 985 A.2d 392, 402 (Del. Ch. 2009)

(“ambiguities in advancement provisions generally are construed against the

corporation who drafted them”).

Permitting a corporation to premise advancement on indemnification leads

to absurd results. It permits an employer to “simply wait out the results of an

action before deciding whether to pay the requisite costs; if the ultimate judgment

was adverse to the defendant, [the corporation] could claim that it was no longer

required to pay the expenses previously incurred.” United States v. Weissman,

1997 WL 334966 (S.D.N.Y. June 16, 1997). “[I]t would be in [the] employer’s

financial interest to use all means at its disposal so as to avoid advancing expenses

during trial. In the event of a guilty verdict, the financial loss to the employer

would depend on the success of its delaying tactics. Such a regime would

undermine a central purpose of the advancement agreement.” United States v.

Weissman, 1997 WL 539774 (S.D.N.Y. Aug. 28, 1997).

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II. Harvard’s Basis for Denying Advancement (a) Violates Strong

Public Policy Toward Granting Advancement and (b) Ignores

Professor Lieber’s Attestations of Innocence and Infringes on

His Constitutional Rights.

a. Public Policy Favors Early Award of Advancement.

The primary purpose behind advancement and indemnification, which are

often lumped together under the term “indemnification,” is to encourage the most

talented individuals to serve the institutions that indemnify them. The “larger

purpose [of indemnification] is to encourage capable persons to serve as corporate

directors, secure in the knowledge that expenses incurred by them in upholding

their honesty and integrity as directors will be borne by the corporation they

serve.” Stifel Fin. Corp. v. Cochran, 809 A.2d 555, 561 (Del. 2002) (quotation

omitted). To advance the broad societal benefits underlying indemnification,

courts therefore construe such contracts liberally in favor of finding

indemnification obligations. See Partners Ltd. P’ship v. Spectacular Partners, Inc.,

1993 WL 328079 at *2 (Del. Ch. Aug 6, 1993).

“Advancement is typically not conditioned on a finding that the party

seeking advancement has met any standard of conduct.” Majkowski v. Am.

Imaging Mgmt. Servs., LLC, 913 A.2d 572, 586 (Del. Ch. 2006). “Conditioning

the right to advancement on the consideration of factors relevant to determining a

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person’s ultimate entitlement to indemnification conflates the possibility of

indemnity with ultimate entitlement to indemnity and improperly blurs the line

between the distinct rights of indemnification and advancement.” Wheeler v.

Wheeler, 2018 WL 6133510 at *10 (NC 2018) (unpublished decision). Indeed,

the Model Business Corporation Act – upon which G.L. c. 156D is based –

previously conditioned fee advancement on a finding that the officer seeking

advancement had met a certain standard of conduct, but was “revised because

in many instances it proved unworkable because of its requirement that a

determination be made in advance that a person had met a certain standard of

conduct.” See Johnson v. Gene’s Supermarket, Inc., 453 N.E.2d 83, 88 (Ill.

App. 1983).

“Clearly, to be of any value to the executive or director, advancement must

be made promptly, otherwise its benefit is forever lost because the failure to

advance fees affects the counsel the director may choose and litigation strategy that

the executive or director will be able to afford” (emphasis added). Tafeen v.

Homestore, Inc., 2005 WL 1314782 (Del. Ch. 2005). “Advancement provides

corporate officials with immediate interim relief from the personal out-of-pocket

financial burden of paying the significant on-going expenses inevitably involved

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with investigations and legal proceedings” (emphasis added). Homestore v.

Tafeen, 888 A.2d 204, 211 (Del. 2005).

b. Professor Lieber is Innocent Until Proven Guilty.

Professor Lieber entered a Not Guilty plea in the criminal proceeding and

attested under oath in the Superior Court proceeding that he lacked criminal intent

and at all times acted in good faith. Yet, Harvard has effectively required

Professor Lieber to “prove” his innocence prior to the resolution of the criminal

proceeding. He is faced with a Hobson’s Choice of either waiving his rights under

the Fifth and Sixth Amendments and Article XII of the Declaration of Rights, or

forgoing a robust criminal defense.

Harvard based its determination that Professor Lieber was unlikely to

receive indemnification by accepting the unproven allegations from the criminal

proceeding as true, reviewing emails without context, and creating personal

opinions about the probability of Professor Lieber’s culpability drawn from the

“temporal proximity” between the unproven allegations and these emails. Harvard

ignored the Not Guilty plea and his attestation of good faith. Despite being aware

of the active criminal proceeding, Harvard is requiring Professor Lieber to produce

more information before it will reconsider its position without regard to his

constitutional rights. Professor Lieber’s reasonable expectations were that his

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employer would, in good faith, advance defense fees and costs immediately, and

not doubt his innocence and require him to waive his constitutional rights. He has

proven likelihood of success on the merits on both contractual and quasi-

contractual grounds.

The high defense costs in corporate criminal cases stem from the legal,

factual, and mens rea questions that must be addressed in white-color criminal

investigations. See Sarah Ribstein, A Question of Costs: Considering Pressure on

White-Collar Criminal Defendants, 58 Duke Law Journal 857 (2008). Professor

Lieber faces irreparable injury if advancement is not awarded now. The criminal

charges against Professor Lieber are complex; span seven years; concern events in

the United States and China; implicate multiple witnesses, many of which may

require Mandarin-to-English translation and interpretation; and will draw in

Harvard personnel and policies. The inherent intricacy of the charges Professor

Lieber faces has required, and will continue to require, a significant investment of

time and cost that is typical of complex federal criminal defense work.

Given the time and expense pressures, the “alternative” remedy of waiting to

recoup fees and expenses through indemnification after the resolution of the

criminal proceeding is truly no remedy at all. “In too many instances, the cash

requirements of funding a legal defense can be so oppressive that it is an almost

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illusory benefit for the officer/director to be able to seek indemnification after the

fact.” David A. Rothstein, et al., Indemnification is Good, but Advancement is

Even Better: Make Sure you know the Difference and Level the Playing Field from

the Start, Florida Bar J., vol. 93:6 (November/December 2019); see also Westar

Energy, Inc., 552 F.3d at 1225 (finding that facing the possibility of a prison term

if convicted and reliance on advances to fund his legal defense constituted

irreparable injury).

III. The Superior Court perpetuated the disregard of Professor

Lieber’s innocence and violation of Professor Lieber’s

constitutional rights.

Like Harvard, the Superior Court erroneously adopted the unproven

allegations asserted in Professor Lieber’s criminal proceeding and ignored the

significance of his Not Guilty plea. The Superior Court also validated the personal

opinions and beliefs of Harvard personnel that were based on conjecture.

Harvard’s process of making its determination is set forth in post-hoc, self-serving

affidavits that were attached to Harvard’s Opposition to the Motion for Preliminary

Injunction.

In assessing Professor Lieber’s likelihood of success on the merits, the

Superior Court stated these “following facts . . . are essentially undisputed”

(emphasis added), accepted one of the affidavits as “corroborat[ing] the allegation

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that Lieber knowingly provided false information,” and then later stated that

“Lieber does not dispute” another affidavit and attached exhibits. [Ex. B, pp. 2, 4

n.2, 10.] The PI Decision includes a recitation of the allegations drawn from the

affidavit of the FBI agent filed in support of the criminal complaint, and the non-

disclosures allegedly made by Professor Lieber. [See Ex. B, pp. 2-5.]

Court may only rely on affidavits to the extent the information contained

therein would be admissible at trial. See O’Neill & Gramer, P.C. v. Nakata, 85

Mass. App. Ct. 1121 at *1 (2014) (unpublished opinion) (noting trial judge

excluded improper affidavits that he described as “infused with speculation,

inadmissible opinion, statements for which personal knowledge is lacking and

irrelevant material”); Plotka v. Hause, 2014 WL 527580 at *9 (Land Court Feb. 7,

2014) (striking portions of affidavits based on hearsay and statements of belief and

personal opinion). As a result, it was plain error to rely on affidavits rife with

speculation and opinion as “corroborat[ing]” mere allegations and accepting them

as “essentially undisputed.” [Ex. B, p. 1.] This statement could not be further

from the truth.

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IV. The Court’s reliance on Harvard’s non-profit status is

unsupported by law or statute.

The Court erred in relying on Harvard’s non-profit status to somehow

distinguish it from the case law. [See Ex. B, p. 10.] Massachusetts case law draws

no distinction between the indemnification and advancement obligations of

corporations based on their non-profit status. Massachusetts law specifically

authorizes non-profits to adopt indemnification policies. See G.L. c. 180, § 6.

Neither the Court nor Harvard cites any law to the contrary. The fact that some of

the case law involves officers of for-profit entities is simply immaterial. Even if it

did matter, Harvard’s policy itself defines President Lieber as an “officer” and

Harvard admitted that Professor Lieber is a “Qualified Person” under the terms of

the policy.

Neither G.L. c. 180, § 6, nor any other law of the Commonwealth, permits

any entity to make an exception to its contractual obligations simply because the

non-profit purports to be a “steward” of donated assets. And no distinction

between the two is drawn in the substantive Massachusetts statutes which dictate

the terms, conditions and rights of persons to seek indemnification from their

employers. See M.G.L. c. 156D § 8.51 et seq.

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V. The Court Created an Extreme Standard, in Contravention of

Public Policy, by Requiring a Showing that Professor Lieber’s

Criminal Defense Counsel Would Withdraw Absent an Order

Compelling Harvard to Award Advancement.

The Court has invented the standard that a plaintiff’s criminal defense

attorneys must testify under oath in an Affidavit that they would violate their

ethical duties and withdraw from representing their client in the criminal

proceeding should advancement of fees not be forthcoming, or that a criminal

defendant must testify that he will be unable to proceed without his counsel of

choice. [See Ex. B, p. 12.] This is particularly absurd when it is known that the

U.S. Attorney’s Office is monitoring the civil proceeding. Neither Harvard nor the

Court has cited any case law that stands for this proposition. Courts have found

that the prospect of “be[ing] forced to front the whole of his expenses and hop[ing]

to recoup them through indemnity later” constitutes irreparable harm. Roller

Bearing Indus. v. Paul, 2010 WL 1257715 at *5 (W.D. Ky. 2010).

Statement of Reasons Supporting Direct Appellate Review

I. Issue of advancement of defense costs under Massachusetts

statute is an important question of first impression.

The issue of advancement for criminal defense fees and expenses prior to

resolution of the criminal proceeding for a corporation organized under

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Massachusetts law is an important question of first impression.1 Undersigned

counsel have identified no prior Massachusetts case law regarding advancement of

fees under G.L. c. 156D (the Massachusetts Business Corporation Act or MBCA)

or G.L. c. 180, § 6 (statute applicable to non-profit corporations), and no decisions

have been cited by the Defendants either.2

Under Massachusetts law, a nonprofit corporation3 is permitted to indemnify

individuals “to whatever extent shall be specified in or authorized by (i) the articles

1 In the Massachusetts cases that have discussed the payment of a corporate officer’s legal fees under G.L. c. 156B,

§ 67 and/or c. 156D, these fees incurred during an underlying civil proceeding and either (a) the officer sought

payment after the resolution of such proceeding or (b) the officer had already been advanced fees and the corporation sought to cease payments. See, e.g., Astra USA, Inc. v. Bildman, 455 Mass. 116, 118 (2009) (analyzing

trial judge’s ruling that corporation had no obligation to pay officer’s legal fees and consist following a jury trial);

Ellis v. Varney, 17 Mass. L. Rep. 394 at * 52 (Mass. Super. Ct. Jan. 9, 2004) (denying order to cease paying

attorney fees after bench trial where court did not conclude the officer had acted in bad faith). These courts

discussed the payment of legal fees in terms of “indemnification” and not “advancement.”

2 The only decision that touches on advancement under Massachusetts law is that of Pointer v. Castellani, 21 Mass.

L. Rep. 199 (Mass. Super. Ct. May 11, 2006). In this case, the plaintiff corporate officer moved for

“indemnification” from the defendant corporation (organized under Massachusetts law) for the costs of defending

against the corporation’s counterclaim. The corporation’s counterclaim alleged that the plaintiff had

misappropriated corporate opportunities for his own benefit. The indemnification provision had a carve out for

“action or omission [that] was committed in bad faith or was the result of active and deliberate dishonesty or, as a

result of which, he gained in fact a financial profit or other advantage to which he is not legally entitled.” The Superior Court found that the plaintiff was not presently entitled to indemnification because whether the carve out

was triggered would not be known until the case was resolved, and denied the motion. The Court further noted that

the real question was whether the plaintiff was entitled to advancement of fees, which in this case the Court

commented were discretionary and not mandatory. Notably, the provisions of the corporation’s Operating

Agreement quoted in the decision contained no reference to advancement of fees. The Court did not cite to any

bylaw, section of c. 156D, or case decision supporting its opinion that advancement was discretionary. In the

absence of any quoted language from the corporation’s bylaws or policies regarding advancement, the Court’s dicta

is implicit recognition that the concept of advancement has a meaning in the Commonwealth that is separate and

distinct from mere contractual provisions.

3 Harvard has repeatedly argued, without basis in statute or case law, that its incorporation as a charitable

organization has some impact on its decision regarding advancement. In the Decision on the Preliminary Injunction, the Court too adopted this position without support. G.L. c. 180A, § 2 provides a standard of conduct for managing

and investing an institutional fund (i.e., an endowment). One of the factors that must be considered is the

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of organization or (ii) a by-law adopted by the incorporators pursuant to section

three or by the members or (iii) a vote adopted by a majority of the members

entitled to vote on the election of directors.” G.L. c. 180, § 6. The concept of

advancement is not discussed in c. 180; reference may thus be drawn to the

advancement provision of G.L. c. 156B, § 67.4 This section permits

indemnification to the same extent quoted above from c. 180, § 6. Further, the

statute provides:

Such indemnification may include payment by the corporation of

expenses incurred in defending a civil or criminal action or

proceeding in advance of the final disposition of such action or

proceeding, upon receipt of an undertaking by the person indemnified

to repay such payment if he shall be adjudicated to be not entitled to

indemnification under this section which undertaking may be accepted

without reference to the financial ability of such person to make

repayment.

G.L. 156B, § 67.

It is no surprise that the state of Delaware is rife with case law regarding the

concept of advancement. The Massachusetts Superior Court decision of Finnegan

v. Baker (Billings, J.), 32 Mass. L. Rep. 455 (Suffolk County, April 30, 2014),

“charitable purposes of the institution and the purposes of the institutional fund.” Yet Harvard has never once

argued – nor could it – that the only funds available to pay indemnification and/or advancement are from their

endowment and not from other sources. G.L. c. 180A, § 2 is part of the Uniform Prudent Management of

Institutional Funds Act (UPMIFA), was adopted in 2009, and there is no case law interpreting it.

4 G.L. c. 180, § 6 permits a nonprofit corporation to have the powers specified in c. 156B, § 9(d), which includes the power to indemnify corporate personnel. This indemnification power, which includes advancement, is further

explained in G.L. c. 156B, § 67.

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which applied Delaware law to a Delaware corporation, accurately summarized the

concept of advancement. “Although regulated by statute, indemnity and

advancement are . . . delineated by the Bylaws. Each, in other words, is ‘a right

conferred by contract, under statutory auspice.’” Id. at *3 (quoting Stifel Fin.

Corp., 809 A.2d at 559) (applying Delaware law to a Delaware corporation).

“While some matters (notably, the right to advancement) are optional under the

statute, they may be (and very often are) made mandatory by the Bylaws or other

contract.” Id. at *3. “‘The right to advancement is broader than the right to

indemnification.’ The entitlement does not depend on an assessment of the merits

of the claims being defended or the seriousness of the misconduct alleged.” Id. at

*4 citing Homestore, Inc., 888 A.2d at 212. The Court also noted that the “by

reason of the fact” standard – which is implicated in Professor Lieber’s case – is

broadly interpreted in favor of advancement. See id. quoting Underbrink v.

Warrior Energy Services Corp., 2008 WL 2262316 at *7 (Del. Ch. May 30, 2008).

Massachusetts Courts have previously looked to Delaware law to decide

issues of corporate governance. In Mirra v. Mirra, the Superior Court (Salinger, J.)

analyzed the continuing wrong doctrine when applying the derivative action

provision of the Massachusetts Business Corporation Act with respect to a

Massachusetts corporation. 34 Mass. L. Rptr. 41 (Suffolk Superior Court Jan. 31,

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2017). The Court referenced decisions in other jurisdictions (Delaware and the 3rd

and 5th Circuits) and noted that “[i]t makes sense to read the Massachusetts

Business Corporation Act the same way.” Id. at * 6. In Gent v. Teradyne, Inc., the

Superior Court (Fabricant, J.) analyzed the “good faith and proper purpose”

provision of the section of the Massachusetts Business Corporation Act that allows

a shareholder to inspect a Massachusetts corporation’s books and records. 27

Mass. L. Rep. 517 (Suffolk Superior Court Oct. 8, 2010). Noting that the parties

had cited no Massachusetts case law, the Court “therefore looks to the law of other

jurisdictions, particularly the corresponding Delaware statute.” Id. at *7. The

Court then adopted the legal standard cited in Delaware case law. Id.

Given that awarding advancement is a novel issue under Massachusetts law,

it makes sense for the Court to look at the precedential case law in Delaware,

which holds that it is crucial promise that must be fulfilled early in the course of a

criminal proceeding and impacts the substantial rights of a defendant’s right to

counsel and a robust defense.

II. The Issue of Advancement in These Circumstances

Implicates both State and Federal Constitutional Rights.

Depriving a criminal defendant of advancement often deprives him of his

counsel of choice. Advancement protects the “ability [of the employee] to mount .

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. . a defense . . . by safeguarding his ability to meet his expenses at the time they

arise, and to secure counsel on the basis of such an assurance.” United States v.

Weissman, 1997 WL 334966 at *16 (S.D.N.Y. June 16, 1997), supplemented,

1997 WL 539774 (S.D.N.Y. Aug. 28, 1997).

The cost of defending a “white collar” criminal prosecution can be massive.

Even defendants of significant means often cannot afford the cost of representation

necessary to fully defend a complex federal criminal case. See United States v.

Stein (Stein IV), 495 F. Supp. 2d 390, 420 (S.D.N.Y. 2007) (noting that under the

CJA plan for the Southern District of New York, “the retention of assets in excess

of those essential to provide ‘the necessities of life’ would be disqualifying”); see

id. at 423 (discussing the financial states of the defendants and concluding that

“[n]one of them can afford to defend this case at any meaningful level”). Indeed,

in Stein IV, the government conceded that an estimate of $3.3 million in defense

fees for one defendant was “very conservative.” See also In re Adelphia

Communications Corp., 323 B.R. 345, 374 (Bankr. S.D.N.Y. 2005) (finding that

while the indemnitees had some ability to fund their own defense, advancement

was necessary to “fully fund their [criminal] defense” and therefore a failure to

order advancement carried “serious consequences, and [was] irreparable”).

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Most defendants in white collar cases have enough money that they are

likely not eligible for public defenders unless they first spend all of their resources

on their defense. Because of the expense of defending white-collar criminal

proceedings, individual corporate defendants can rarely, if ever, fully fund their

own defenses; instead, these defendants rely on their employers to pay their legal

costs. See, e.g., Laurence A. Urgenson & Audrey Harris, Is the White-Collar

Defense Attorney Headed for Extinction?, LJN BUS. CRIMES BULL., May 2006,

at 1, 2 (“[e]ven if an individual defendant is able to scrape together enough money

to keep his counsel, few can afford the experts, accountants, investigators and

support staff that it takes to sort through (much less, make sense of) the

warehouses of material . . .”). “Corporate officers and directors frequently find

themselves involved in complex legal proceedings in which they face exposure

merely by reason of the fact that they served as an officer or director. Legal

expenses incurred by the officer/director can be devastatingly massive, such that it

would be unfair to require them to pay those expenses, personally, out of pocket.”

Rothstein, supra. But the financial cost is not the sole concern:

Every party, including each director defendant, requires effective

representation. It is impossible to predict or quantify the impact on a

litigant of a failure to have adequate representation at this critical

stage of litigation. The ability to mount a successful defense requires

competent and diligent representation. The impact of an adverse

24

judgment will have ramifications beyond the money that will

necessarily be involved. There is the damage to reputation, the stress

of litigation, and the risk of financial ruin—each of which is an

intangible but very real burden.

In re: WorldCom, Inc. Securities Litigation, 354 F.Supp.2d 455, 469-70 (S.D.N.Y.

2005).

In addition to the constitutional issues that are impacted by advancement of

defense fees and costs, in the unique situation of this case – where Harvard’s

decision to deny advancement is based nearly entirely on accepting criminal

allegations as true – Professor Lieber is faced with a Hobson’s choice of exercising

his constitutional rights or obtaining funding to provide for an adequate criminal

defense. Based on a review of case law in other jurisdictions, it is an exceedingly

rare case where the funds to provide a criminal defendant’s defense have been

entirely premised on proving his innocence to those allegations prior to the

resolution of the underlying criminal proceeding.

This is a narrow issue that will not impact corporate advancement generally,

which should alleviate any broader “slippery slope” concerns, but also calls for the

Supreme Judicial Court’s direct review of the case.

25

III. Professor Lieber’s Hobson’s Choice is a Matter of Public

Interest in that it Impacts Academic Freedom and

Employment Rights.

The benefits of indemnification apply with special force in the context of the

university-professor relationship. To attract the top-most talent, a university must

make professors secure in the knowledge that the university will stand behind them

in upholding their honesty and integrity, and clearing their reputations. Moreover,

denying an academician this security will doubtlessly chill the scholar’s freedom to

push the outermost bounds of thought and discourse, which is the bedrock

principle that defines the university. This is the fear expressed by six Nobel

laureates and 29 Harvard professors who recently authored an editorial in the

Boston Globe. See Fernandes, Deirdre, Nobel Prize winners and other scientists

come to defense of Harvard professor Charles Lieber, Boston Globe, March 1,

2021.5

At bottom, a university’s refusal to indemnify a professor causes “a

detrimental effect on scholarly research and writing that stifles academic progress.”

Julie H. Margetta, “Guarding the Ivory Tower: The Duty to Defend and Indemnify

Faculty Publications,” 12 Tex J.C.L. & C.R. 133, 151-52 (2006); see also Sweezy

5 Available at https://www.bostonglobe.com/2021/03/01/metro/nobel-prize-winners-other-scientists-come-defense-harvard-professor-charles-lieber/.

26

v. State of N H by Wyman, 354 U.S. 234, 262-63 (1957) (“Freedom to reason and

freedom for disputation on the basis of observation and experiment are the

necessary conditions for the advancement of scientific knowledge. A sense of

freedom is also necessary for creative work in the arts which, equally with

scientific research, is the concern of the university.”).

The public interests favoring advancement and academic freedom both call

for direct review of this appeal by the Supreme Judicial Court.

Relief Requested

WHEREFORE, given the important and novel issues involved in this appeal,

the Appellant Charles M. Lieber respectfully requests that the Supreme Judicial

Court grant direct appellate review of this appeal.

CERTIFICATE OF COMPLIANCE WITH MASS. R. CIV. P. 16(k)

I hereby certify that this Application meets the word limit requirement of

Mass. R. Civ. P. 11(b). I utilized Microsoft Word’s word count feature to ensure

that the Argument section is 1,995 words, including the Section Titles, of

proportionally spaced font in Times New Roman.

/s/ David R. Suny


27

CERTIFICATE OF SERVICE

I, David R. Suny, Attorney representing Appellant Charles M. Lieber,

hereby certify that I have this 25th day of May, 2021 served the within:

APPELLANT’S APPLICATION FOR DIRECT APPELLATE

REVIEW BY THE SUPREME JUDICIAL COURT

upon the attorneys of record for the appellees by electronic mail as follows:

Joan Lukey, BBO No. 307340

Justin Wolosz, BBO No. 643543

Samuel N. Rudman, BBO No. 698018

Choate, Hall & Stewart LLP

Two International Place

Boston, MA 02110

[email protected]

[email protected]

[email protected]

/s/ David R. Suny


MCCORMACK SUNY LLC

100 Cambridge Street, 14th Floor

Boston, MA 02114

Ph: (857) 203-7739

[email protected]

Exhibit A

2081CV02441 Lieber, Charles M, vs. President and Fellows of HarvardCollege (Harvard Corporation) et al

Case Type:

Contract / Business Cases

Case Status:

Open

File Date

10/09/2020

DCM Track:

F - Fast Track

Initiating Action:

Employment Contract

Status Date:

10/09/2020

Case Judge:

Next Event:

Case Details - Massachusetts Trial Court 3 https://www.masscourts.org/eservices/search.page.5?x=yZ69cZjNWXR...

1 of 9 5/20/2021, 3:45 PM


2 of 9 5/20/2021, 3:45 PM

Docket Information

Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.

10/09/2020 Attorney appearance

On this date David R Suny, Esq. added as Private Counsel for Plaintiff Charles M, Lieber

10/09/2020 Case assigned to:

DCM Track F - Fast Track was added on 10/09/2020

Image

10/09/2020 Original civil complaint filed. 1 Image

10/09/2020 Civil action cover sheet filed. 2 Image

10/09/2020 Demand for jury trial entered.

10/09/2020 Charles M, Lieber's MOTION for appointment of Special Process Server.

Motion Allowed. (Kazanjian, J.) Copy Given In Hand

3 Image

10/09/2020 Plaintiff(s) Charles M, Lieber's Motion for

a short order of notice on preliminary injunction

4 Image

10/09/2020 Plaintiff(s) Charles M, Lieber's Motion for a Preliminary Injunction 5 Image

10/09/2020 Charles M, Lieber's Memorandum in support of

his motion for a preliminary injunction

6 Image


3 of 9 5/20/2021, 3:45 PM

Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.

10/09/2020 Affidavit

of David R. Suny In Support of Charles M. Lieber's Motion For A Preliminary Injunction

7 Image


of Charles M. Lieber In Support Of Plaintiff's Motion For A Preliminary Injunction

8 Image


of Marc L. Mukasey In Support of Charles M. Lieber's Motion For A Preliminiary Injunction

9

10/09/2020 Summons and order of notice issued on a Motion for a Preliminary Injunction , returnable on

10/15/2020 11:00 AM Hearing on Preliminary Injunction.

10 Image

10/09/2020 Defendants President and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp's

EMERGENCY Motion to

Continue Preliminary Injunction Hearing

11 Image


On this date Joan Ann Lukey, Esq. added as Private Counsel for Defendant President and Fellows of

Harvard College (Harvard Corporation).


On this date Joan Ann Lukey, Esq. added as Private Counsel for Defendant Katherine N Lapp.


On this date Justin J Wolosz, Esq. added as Private Counsel for Defendant President and Fellows of

Harvard College (Harvard Corporation).


On this date Justin J Wolosz, Esq. added as Private Counsel for Defendant Katherine N Lapp.


On this date Samuel Newland Rudman, Esq. added as Private Counsel for Defendant President and

Fellows of Harvard College (Harvard Corporation).


On this date Samuel Newland Rudman, Esq. added as Private Counsel for Defendant Katherine N

Lapp.

10/13/2020 Opposition to Defendants' Emergency Motion to Continue Preliminary Injunction Hearing filed by

Charles M, Lieber

12 Image

10/13/2020 Endorsement on Motion to continue / reschedule an event Preliminary Injunction Hearing (#11.0):

ALLOWED

without conditions. New date is 10/22/20 at 2:00 PM.

Judge: Cowin, Hon. Jackie

Image

10/13/2020 Event Result:: Hearing on Preliminary Injunction scheduled on:

10/15/2020 11:00 AM

Has been: Rescheduled For the following reason: By Court prior to date

Hon. Jackie Cowin, Presiding

Staff:

Maria Pantos, Assistant Clerk Magistrate

10/13/2020 The following form was generated:

Notice to Appear

Sent On: 10/13/2020 11:39:47

Notice Sent To: David R Suny, Esq. McCormack Suny LLC 100 Cambridge St 14th Floor, Boston, MA

02114

Notice Sent To: Joan Ann Lukey, Esq. Choate Hall & Stewart LLP Two International Place, Boston, MA

02110

Notice Sent To: Justin J Wolosz, Esq. Choate, Hall & Stewart LLP Two International Place, Boston,

MA 02110

Notice Sent To: Samuel Newland Rudman, Esq. Choate Hall & Stewart LLP 2 International Place 34th

Floor, Boston, MA 02110


4 of 9 5/20/2021, 3:45 PM

Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.

10/19/2020 Defendants President and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp's

Assented to Motion to

Impound

13 Image


declaration of Joan A.Lukey

13.1 Image

10/20/2020 Event Result:: Hearing on Preliminary Injunction scheduled on:

10/22/2020 02:00 PM

Has been: Rescheduled For the following reason: By Court prior to date

Hon. Maureen Hogan, Presiding

Staff:

Arthur T DeGuglielmo, Assistant Clerk Magistrate

10/22/2020 Opposition to Plaintiff's Motion for Preliminary Injunction filed by President and Fellows of Harvard

College (Harvard Corporation)

14 Image


of Marie Letellier

14.1 Image


of Katherine Lapp

14.2 Image


of Richard McCullough

14.3 Image


of Jennifer Ponting

14.4 Image


of Patricia Harrington

14.5 Image

10/26/2020 Matter taken under advisement: Hearing on Preliminary Injunction scheduled on:

10/26/2020 02:00 PM

Has been: Held - Under advisement

Comments: Event conducted by ZOOM conference.

Hon. Maureen Hogan, Presiding

Appeared:

Plaintiff

David R Suny, Esq., Private Counsel

Defendant

Joan Ann Lukey, Esq., Private Counsel

Justin J Wolosz, Esq., Private Counsel

Staff:


10/29/2020 Answer to original complaint

by Defendants President and Fellows of Harvard College and Katherine N. Lapp

15 Image

10/29/2020 Answer to original complaint

AMENDED

16 Image

10/29/2020 Exhibits/Appendix

to Answer

16.1 Image

10/30/2020 Endorsement on Motion to Impound (#13.0): ALLOWED

Judge: Hogan, Hon. Maureen

Image

10/30/2020 ORDER: ON ASSENTED TO MOTION FOR IMPOUNDMENT

This matter having come before the Court on Defendant's assented to Motion for Impoundment,

pursuant to Rule 2 of the Trial Court's Uniform Rules on Impoundment Procedure and Superior Court

Rule 18, to impound certain materials filed in response to Plaintiff's Motion for Preliminary Injunction, it

17 Image


5 of 9 5/20/2021, 3:45 PM

Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.

is hereby ORDERED: Good cause having been shown, the Assented-to Motion for Impoundment is

GRANTED. Defendants may file the un-redacted Opposition to Plaintiff's Motion for Preliminary

Injunction and declarations of Patricia Harrington and Marie Letellier under seal. Defendants will file on

the public docket redacted versions of the documents, with the referenced financial information

redacted. This order of impoundment shall last until the conclusion of the case.



On this date Andrea Lynn Davulis, Esq. added as Private Counsel for Plaintiff Charles M, Lieber ( Filed

in Court this day )

Image

11/19/2020 Defendant President and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp's

Motion for

Judgment on the Pleadings

18 Image

11/19/2020 President and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp's Memorandum in

support of

Motion for Judgment on the Pleadings

18.1 Image

11/19/2020 Opposition to Motion for Judgment on the Pleadings filed by Charles M, Lieberand Cross Motion for

Judgment on the Pleadings on Plaintiff's Advancement Claims

18.2 Image

11/19/2020 Plaintiff Charles M, Lieber's Motion for

Judgment on the Pleadings

18.3 Image

11/19/2020 Opposition to Cross Motion for Judgment on the Pleadings on Advancement Claims filed by President

and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp

18.4 Image

11/19/2020 Defendant President and Fellows of Harvard College (Harvard Corporation), Katherine N Lapp's

Certificate of

9C compliance

Applies To: Suny, Esq., David R (Attorney) on behalf of Lieber, Charles M, (Plaintiff)

18.5 Image

01/08/2021 The following form was generated:

Notice to Appear

Sent On: 01/08/2021 11:00:37

Notice Sent To: David R Suny, Esq. McCormack Suny LLC 100 Cambridge St 14th Floor, Boston, MA

02114

Notice Sent To: Andrea Lynn Davulis, Esq. McCormack Suny LLC 100 Cambridge St, Boston, MA

02114

Notice Sent To: Joan Ann Lukey, Esq. Choate Hall & Stewart LLP Two International Place, Boston, MA

02110

Notice Sent To: Justin J Wolosz, Esq. Choate, Hall & Stewart LLP Two International Place, Boston,

MA 02110

Notice Sent To: Samuel Newland Rudman, Esq. Choate Hall & Stewart LLP 2 International Place 34th

Floor, Boston, MA 02110

03/01/2021 Matter taken under advisement: Rule 12 Hearing scheduled on:

03/01/2021 02:00 PM

Has been: Held - Under advisement

Comments: Event conducted by ZOOM conference.

Hon. Michael Doolin, Presiding

Appeared:

Plaintiff

David R Suny, Esq., Private Counsel

Andrea Lynn Davulis, Esq., Private Counsel

Defendant

Joan Ann Lukey, Esq., Private Counsel

Justin J Wolosz, Esq., Private Counsel

Samuel Newland Rudman, Esq., Private Counsel

Staff:


03/17/2021 ORDER: MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR

PRELIMINARY INJUNCTION: (Which see 13 pages). ORDER: For the foregoing reasons, the

plaintiff, Charles M. Lieber's, motion for a preliminary injunction is DENIED. Dated: March 12, 2021.

Copies mailed 3/17/21.

19 Image


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Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.


03/30/2021 Plaintiff Charles M, Lieber's EMERGENCY Motion to

dispense with rule 9A filing requirements and to shorten the time period for defendants' response to his

motion for leave to file an amended complaint.

20 Image

03/31/2021 Opposition to "Plaintiff's Emergency Motion to Dispense with Rule 9A Filing Requirements and to

Shorten the Time Period for Defendants' Response to His Motion for Leave to File an Amended

Complaint" (the "Emergency Motion") filed by President and Fellows of Harvard College (Harvard

Corporation), Katherine N Lapp

21 Image

03/31/2021 Endorsement on Motion of dispense with rule 9A filing requirements (#20.0): DENIED

after review

Judge: Doolin, Hon. Michael

Image

03/31/2021 Plaintiff's Notice of Appeal of the Superior Court March 12, 2021 Order Pursuant to G.L. c. 231, 118

and G.L. c. 211,3: hereby provides notice that he is taking an appeal of the Superior Court denial of his

motion for a preliminary injunction by way of its March 12, 2021 order.

Applies To: Davulis, Esq., Andrea Lynn (Attorney) on behalf of Lieber, Charles M, (Plaintiff)

22 Image


leave for leave to file first amended complaint

24 Image


Motion for leave for leave to file first amended complaint

24.1 Image

04/13/2021 Exhibits/Appendix Image

04/13/2021 Opposition to PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT filed by 24.2 Image


AFFIDAVIT OF COMPLIANCE WITH SUPERIOR COURT RULE 9A

24.3 Image

04/13/2021 Plaintiff Charles M, Lieber's Motion to

extend tracking order deadlines for filings

25 Image

04/13/2021 Opposition to PLAINTIFF'S MOTION TO EXTEND TRACKING ORDER DEADLINES filed by 25.1 Image


AFFIDAVIT OF COMPLIANCE WITH SUPERIOR COURT RULE

25.2 Image


RECONSIDERATION OF THE COURT'S ORDER DENYING HIS OCTOBER 9, 2020 MOTION FOR A

PRELIMINARY INJUNCTION

37 Image


HIS MOTION FOR RECONSIDERATION OF THE COURT'S ORDER DENYING HIS OCTOBER 9,

2020 MOTION FOR A PRELIMINARY INJUNCTION

37.1 Image

04/13/2021 Plaintiff Charles M, Lieber's Submission of

Certificate of Service

Image

04/13/2021 Opposition to PLAINTIF'S MOTION FOR RECONSIDERATION filed by 37.2 Image


AFFIDAVIT OF COMPLIANCE WITH SUPERIOR COURT RULE 9A

37.3 Image

04/13/2021 Plaintiff Charles M, Lieber's Notice of

Filing

37.4 Image



Image

04/13/2021 Plaintiff Charles M, Lieber's Motion to

STRIKE PORTIONS OF THE DEFENDANTS' ANSWER AND PORTIONS OF THE AFFIDAVITS OF

RICHARD MCCULLOUGH, JENNIFER PONTING, AND KATHERINE LAPP

38 Image


7 of 9 5/20/2021, 3:45 PM

Docket

Date

Docket Text File

Ref

Nbr.

ImageAvail.


PLAINTIFF'S MOTION TO STRIKE PORTIONS OF THE DEFENDANTS' ANSWER AND PORTIONS

OF THE AFFIDAVITS OF RICHARD MCCULLOUGH, JENNIFER PONTING, AND KATHERINE LAPP

38.1 Image



Image

04/13/2021 Opposition to TO PLAINTIFF'S MOTION TO STRIKE PORTIONS OF THE DEFENDANTS¿ ANSWER

AND PORTIONS OF THE AFFIDAVITS OF RICHARD MCCULLOUGH, JENNIFER PONTING, AND

KATHERINE LAPP filed by

Applies To: President and Fellows of Harvard College (Harvard Corporation) (Defendant)

38.2 Image


OF COMPLIANCE WITH SUPERIOR COURT RULE 9A

38.3 Image


Notice of filing

Image


Certificate of service

Image

04/14/2021 CD of Transcript of 10/26/2020 02:00 PM Hearing on Preliminary Injunction received from Donna

Holmes Dominguez. 1

39

04/23/2021 MEMORANDUM & ORDER:

on Parties' Cross Motions for Judgment on the Pleadings: The defendants' motion for judgment on the

pleadings is ALLOWED on the portions of Counts I, III, VI and

VIII seeking indemnification or related relief for Lieber's defense of the criminal charges against him for

filing a false tax return and failure to report foreign bank and

financial accounts. The cross motions for judgment on the pleadings are otherwise DENIED. The

portion of Counts I, III, VI and VIII seeking indemnification or related relief for Lieber's defense of the

criminal charges against him for making a false statement to a government agency are STAYED

pending the resolution of those

criminal charges (*which see complete Memorandum of Decision and Order scanned to docket, dated

04/14/2021)

Judge: Doolin, Hon. Michael

40 Image

04/28/2021 Notice of assembly of record sent to Counsel 41 Image

04/28/2021 Notice to Clerk of the Appeals Court of Assembly of Record 42 Image

04/28/2021 Appeal: Statement of the Case on Appeal (Cover Sheet). 43 Image

05/04/2021 Appeal entered in Appeals Court on 05/04/2021 docket number A.C. 2021-P-0390 44 Image

05/14/2021 Judgment.

It is ORDERED and ADJUDGED::

This matter came before the court, Georges, Jr., J., on a petition for relief pursuant to G.L. c. 211 3. On

May 6, 2021 the petitioner filed a supplemental petition for relief under G.L. c. 211, 3. The petitioner

seeks relief from two orders of the Middlesex Superior Court. The first docketed on March 17, 2021, in

the Superior Court, denying a motion for preliminary injunction. The second docketed on April 23,

2021, in the Superior Court, denying in part, a judgment on the pleadings. Relief under G.L.c. 211 3, is

available only under exceptional circumstances, and generally is not available where there are

alternative remedies. See, e.g., McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). The

petitioner has not demonstrated that such extraordinary relief is appropriate here. Upon consideration

thereof, it is hereby ORDERED that the petition be, and the same hereby is, DENIED without hearing.

Dated: May 13, 2021

45 Image


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Exhibit B

Documents

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. NO. 2021 …