Court File and Parties
COURT FILE NO.: CV-17-981-00 DATE: 2018 09 25 CORRECTED: 2018 10 12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maxjoyce Express Inc., Plaintiff AND: Shen Tzu Chang, a.k.a Emma Chang, a.k.a Emma McFarland, Respondent
BEFORE: Lemon J.
COUNSEL: B. Jenkins, Counsel for the Plaintiff J. Russo and G. Janoscik, Counsel for the Respondent
HEARD: August 29, 2018
Endorsement
Correction Notice
October 12, 2018: minor typographical corrections made to counsel. The counsel has been changed to read: B. Jenkins, counsel for the Plaintiff, and J. Russo and G. Janoscik, counsel for the Respondent, instead of B. Jenkins, counsel for Respondent and J. Russo and G. Janoscik, counsel for the Plaintiff.
The Issue
[1] Ms. Chang moves to set aside a Mareva injunction granted by the motions judge on March 2, 2017. She submits that there was material information kept from that judge and that the plaintiff failed to live up to the duty to provide full, fair and frank information on such ex-parte applications.
[2] At the end of argument, I set the order aside for written reasons to follow. These are those reasons.
Background
[3] On March 2, 2017, a Mareva injunction was granted against Ms. Chang preventing her from dealing with a number of bank accounts and freezing her bank accounts. The motions judge also ordered that she account to Maxjoyce for monies transferred from its accounts on February 29, 2017.
[4] In order to understand Maxjoice’s failure to provide full, fair and frank disclosure, one needs to start with what was placed before the court at first instance. I have highlighted the particular items of importance for the purposes of this motion.
[5] On March 2, 2017, Mr. Deng, on behalf of Maxjoyce, swore to the following:
Maxjoyce is a Corporation created pursuant to the Laws of Ontario and has at all material times been in the business of freight forwarding, logistics, and transportation services.
In or around May, 2014, [Ms. Chang] and I entered into a shareholder’s agreement along with Maxjoyce. [Ms. Chang] and I have been operating business together since this time.
At this time, and in accordance with the Shareholders’ Agreement, I am Maxjoyce’s President and hold a 51% shareholder interest, while [Ms. Chang holds] a 49% shareholder interest, and is Vice-President [sic].
Maxjoyce has three bank accounts in total.
Since becoming an Officer of Maxjoyce, [Ms. Chang] has had independent authority along with myself and my wife, Gui Lian Jiang, to carry out transactions, including fund transfers, on the Three Bank Accounts.
Pursuant to the Shareholders’ Agreement, [Ms. Chang] was not authorized to withdraw CAD $50,000 or more from any of the Three Bank Accounts without my prior written approval.
Approximately two weeks ago I was advised by one of Maxjoyce’s vendors that [Ms. Chang] had started a business which directly competes with Maxjoyce. This vendor has requested that I keep its anonymity and not disclose its name for the purposes of this litigation.
On or about February 27, 2017 I confirmed that [Ms. Chang] had started a competing business when I found two emails in the Maxjoyce office printer to and from [Ms. Chang] at her import@umbrellalogisticsinc.com account dealing with freight forwarding job. Later that day I discovered another email, this time it was an email from [Ms. Chang] using her import@umbrellalogisticsinc.com account to then Maxjoyce employee, Jennifer Kwiatkowski. In her email, [Ms. Chang] asks Ms. Kwiatkowski to provide a price quotation on behalf of Umbrella for a freight forwarding job.
Upon learning that [Ms. Chang] had started her competing business I changed the locking mechanisms to Maxjoyce’s office, and currently, I am the only individual able to access the office.
On March 1, 2017 at around 9:00 o’clock in the morning I discovered that all of the funds in the Three Bank Accounts had been taken. Attached hereto and marked as Exhibit “J” to this my Affidavit is a true copy of the transaction receipt I received from TD Bank with respect to the Three Bank Accounts on March 1, 2017 (the “Transaction Receipt”).
On the face of the Transaction Receipt it is evidence that the night before, February 28, 2017, at 10:46 p.m., [Ms. Chang] transferred all of the funds in the Three Bank Accounts to her two personal bank accounts.
In total [Ms. Chang] transferred USD $331,348.91 from Maxjoyce’s two US bank accounts to her US account Np. 1340-7323 (three digits are redacted from Transaction Receipt), and CAD $64,233.54 from Maxjoyce’s CAD bank account to her personal Account Np. 1340-5292 (three digits are redacted from Transaction Receipt).
[Ms. Chang] had no right to take these funds, and it is my position that her conduct was fraudulent.
Maxjoyce is still carrying on business, notwithstanding the fact that all of its operating funds have been misappropriated by [Ms. Chang]. My short term plan is to financing Maxjoyce’s operating costs myself, which I anticipate to be approximately $40,000.00 up to and including the end of March, 2017.
On or about July 12, 2016 I transferred, with [Ms. Chang]’s knowledge and consent, $125,696.20, being CAD $100,000.00 and the equivalent of USD $19,000.00 from Maxjoyce to myself as a partial repayment of my Loans. After this transfer I was still owed USD $400,000.00 under the Loans. [Ms. Chang] was aware of this. Attached hereto and marked as Exhibit “O” to this my Affidavit are emails between [Ms. Chang] and I in February, 2016 wherein I explain the Loans and her consenting to the $125,696.20 payment, along with the fund transfer record.
In or around October, 2016, I advised [Ms. Chang] that I needed the Loan paid down by another USD $400,000.00, as I needed funds for a new property I was purchasing December 12, 2016. She did not object, but was concerned about Maxjoyce’s cash flow, which I assured her I would personally ensure would not be an issue. On or about December 8, 2016 I transferred, with [Ms. Chang]’s knowledge and consent, USD $300,000.00 (and not $400,000.00) from Maxjoyce to myself as a further partial repayment of my Loans. At this time I am still owed USD $100,000.00 from Maxjoyce under the Loans. Attached hereto and marked as Exhibit “P” to this my Affidavit is my email containing the attached transfer receipt that I sent [Ms. Chang] on December 8, 2016 confirming that I would monitor Maxjoyce’s accounts and ensure that there was no cash flow issues. See also the email correspondence from October, 2016 between [Ms. Chang] and I contained in Exhibit “O”.
[6] In response to the order being granted, Ms. Chang swore an affidavit. There, she said:
Contrary to paragraph 34 of the Deng Affidavit, Deng removed the sum of $125,696.20 CAD from the Maxjoyce bank accounts before asking for my consent in breach of the Shareholders Agreement. Attached at Tab “O” of the Deng Affidavit is the email correspondence surrounding the removal of the $125,696.20 from the Maxjoyce bank accounts.
Contrary to paragraph 35 of the Deng Affidavit, the transfer of the $300,000 USD from the Maxjoyce bank account number 7308236 was not done with my knowledge and/or consent. The emails attached as Exhibit “O” to the Deng Affidavit do not support Deng’s statements that the transfer was done with my knowledge and consent. The opposite is true.
On October 25, 2016 at 3:16 p.m. I received an email from Deng advising that it was his intention to withdraw $400,000 USD from Maxjoyce and advising that after this transfer his shareholder loan will be paid in full. I responded on October 25, 2016 at 3:49 p.m. and advised that I did not think it was a good time right now as I was concerned about Maxjoyce’s cash flow and that I wanted our accounts payables and receivables to be up to date before Deng withdraws any amounts towards his shareholder loan. I conclude by stating, “let’s discuss on this matter together.”
On October 25, 2016 at 3:59 p.m. Deng responded and states that there should be enough funds to run the business. I responded on October 25, 2016 at 4:00:00 p.m. and stated, “Hi Eric, those let’s discuss in person, I prefer to leave more money in the account, also before you withdraw the director’s loan we should take out the dividend for 2014 and 2015 first for the both of us so that we know the true pictures of what’s the company’s cash etc.” Contrary to the statement in the Deng Affidavit, I did not consent as is evident from the emails above. The issue of the dividends was a major issue for me and I was pressing Deng to address the issue.
At paragraph 35 of the Deng Affidavit he also states that he sent me an email on December 8, 2016 containing the transfer receipt wherein he removed from the Maxjoyce bank account number 7308236 the sum of $300,000 USD. The email is attached as Exhibit “P” to the Deng Affidavit and was sent at 11:11:05 a.m. The email states that he has transferred the amount to Deng’s account and states. “[a]s I agreed that I will monitor company account to make sure there is not issue with our cashflow.” As I stated in the preceding paragraphs I never agreed to Deng removing the $300,000 from the Maxjoyce bank account and the statement in the Deng Affidavit is a complete fabrication and misrepresentation of the events surrounding the removal of the funds by Deng.
I responded to Deng’s December 8, 2016 email delivered at 11:11:05 a.m. which is attached as Exhibit “P” to the Deng Affidavit. In fact, Deng intentionally failed to disclose our email exchange on December 8, 2016 which leaves no doubt that I did not consent to Deng’s removal of the sum of $300,000 USD from Maxjoyce’s bank account. Deng redacted my response on December 8, 2016 from the email included at Exhibit “P” to the Deng Affidavit.
On or about December 8, 2016 at 12:03 p.m. I responded to Deng’s email and stated as follows:
“Hi Eric thanks for your email, however, I do not recall I ever agreed to such below anyways, like I mentioned I would like to get our last 2 years of dividend paid out first, so please calculate and that way instead. I thought we both agreed that no money should be withdrawn unless we both agree on this? Anyways, like I mentioned previously a few times, I want to have our dividend paid out firstly”
On December 8, 2016 at 12:47 p.m. Deng responded to my email and stated that he has already withdrawn this amount as he needs to finish his closing and he states that he will make sure there are no cash flow issues. Once again, I never agreed to his withdrawal of the $300,000 USD and the complete December 8, 2016 email correspondence between the two of us confirms same. Attached to this my Affidavit and marked as Exhibit “F” is a true copy of the December 8, 3016 email chain.
Deng’s transfer of the sum of $300,000 USD is a breach of the Shareholders Agreement.
On or about February 28, 2017 at approximately 8:38 p.m. I noticed that I no longer had access to my email at Maxjoyce. I responded to a text message from Deng wherein he advised me that he was purchasing a new building. I congratulated Deng and asked him what is wrong with the emails as I was unable to log into the Maxjoyce system. Attached to this my Affidavit and marked as Exhibit “J” is a true copy of Deng’s text to me on February 28, 2017 and my responding text message.
After being unable to access my email and upon receiving the text messages from Jennifer and Quennie I tried to log into the TD online banking to review the Maxjoyce accounts. I was unable to access the Maxjoyce accounts without my authorization as he had done in the past. I called Deng just after 10:00 p.m. on February 28, 2017 and I asked what is going on with the email and why I no longer had access to the online banking for Maxjoyce. Deng did not respond and hung up on me.
Immediately after my call to Deng I contacted TD telephone banking and asked the TD employee who answered the call to assist me in determining what happened to my online banking access. The TD employee advised that my personal access card had been cancelled. I asked the TD employee to read to me the last few transactions on the Maxjoyce accounts. The TD employee advised me that someone had transferred out that day $100,000 USD from Maxjoyce bank account number 7308236. I knew that Deng had transferred the $100,000 USD for his personal use. I instructed the TD employee to transfer the balance of the funds to my personal accounts as I was concerned that Deng would transfer the remaining funds and deny me of my dividends. Attached to this my Affidavit and marked as Exhibit “M” is at true copy of the account activity of the Maxjoyce bank account number 7308236 as at February 28, 2017 which shows the transfer of $100,000 USD to account number 7148026 WR210 which is Deng’s personal account.
I had no knowledge or notice from Deng that he was withdrawing the $100,000 USD and I certainly did not agree to this withdrawal. The Deng affidavit does not mention the withdrawal of the $100,000 USD by Deng on February 28, 2017. There is no doubt that these funds were transferred by Deng for his personal account and use as account number 7148026 is the same account that Deng transferred the $300,00 USD to on December 8, 2016. Attached to this my Affidavit and marked as Exhibit “N” is a true copy of a bank statement of Maxjoyce bank account number 7308236 for the period November 30, 2016 to December 30, 2016 showing the transfer of the sum of $300,000 USD to account number 7148026.
When I was advised of the unauthorized transfer by Deng of the $100,000 USD, I assumed he was trying yet again, to remove funds from Maxjoyce without my consent and in frustration of my efforts to have him agree to the dividends issue. As I stated above, in order to avoid and prevent Deng to transfer any further funds from Maxjoyce without my consent, I transferred the remaining funds from the Maxjoyce bank accounts to my personal accounts. I had transferred the sum of $74,311.81 USD from Maxjoyce bank account number 7307523, $256,037.10 USD from Maxjoyce bank account number 7308236 and $64,233.54 CAD from Maxjoyce bank account number 5227592. A portion of these funds are dividend payments due and owing to me by Maxjoyce. Attached to this my Affidavit and marked as Exhibit “O” are the Maxjoyce bank account statements with respect to Maxjoyce Bank account numbers 7307523 and 5227592 as at March 1, 2017. The Maxjoyce bank account statement for the bank account number 7308236 is attached as Exhibit “L” to my Affidavit.
I never intended to misappropriate any funds from Maxjoyce as has been set out in the Deng Affidavit. I have set out my reasons in the preceding paragraphs. If my intention was to misappropriate any funds I would have removed the funds from my personal accounts and deposited funds in an account to which Deng has no knowledge. The funds remained in my accounts from February 28, 2017 to the date of the Order of Justice Trimble.
46 [sic] On March 1, 2017 I wrote to Deng and confirmed that I had advised him that I had removed the funds out of distrust for him, in particular on the issue of dividends. Attached to this my Affidavit and marked as Exhibit “S” is a true copy of my email dated March 1, 2017 in response to an email from Deng dated February 28, 2017 at 9:44 p.m.
- Attached an Exhibit “L” to the Deng Affidavit are a series of text messages between myself and Deng. As can be seen from the text messages my intention is to engage in a discussion with Deng about our differences. Deng refused to speak with me unless I returned 50% of the funds to the Maxjoyce bank accounts. He never requested the full amount as he knows that at least 50% of those funds are in payment of the dividends that are due and owing to me by Maxjoyce. Deng refused to allow me to retrieve my personal items from the Maxjoyce premises.
[7] Mr. Deng filed a reply affidavit. At first, counsel for Ms. Chang objected to that affidavit as it was not before the court in support of the original Mareva injunction. On further thought, counsel properly realized that the affidavit would be of benefit to his argument that there had not been full, fair and frank disclosure. In that reply affidavit, Mr. Deng attempted to explain the evidence he placed before the motions judge:
In my Affidavit, sworn Mach 2, 2017 (“March 2nd Affidavit”) I did not intentionally omit the fact that [Ms. Chang] was a director of Maxjoyce, and I hereby attest that this omission was inadvertent. Indeed, I attached and marked as Exhibit “A” to my March 2nd Affidavit a copy of Maxjoyce’s Corporation Profile Report, produced March 1, 2017, which clearly identifies [Ms. Chang] as a Maxjoyce director. In my haste of preparing the March 2nd Affidavit, I made other inadvertent errors.
With respect to the $300,000.00 U.S.D. payment, at the time that I swore my March 2nd Affidavit, I had no doubt in my mind that she had consented to this payment. I still have no doubt that [she] consented to this payment, and any issues raised in [Ms. Chang]’s Affidavit as to this payment or the $125,696.20 payment are being raised as mere a pretexts, crafted after the fact, in an attempt to rationalize and excuse her misconduct.
In hindsight, I should have included our full email string through to December 21, 2016; however, I was in a rush to get my motion materials completed so that I could have the matter heard that day. I recall that when I carried out my search for the email contained at Exhibit “P” of my March 2nd Affidavit, I did so primarily with a focus of locating the email wherein I notified [Ms. Chang] of my withdrawal.
I did withdraw the amount of $100,000.00 U.S.D. from one of the USD Maxjoyce’s banks account, on February 28, 2017.
I acknowledge that I should have made it explicitly clear in my Affidavit, sworn March 2, 2017, that I had withdrawn this USD $100,000.00 on February 28, 2017. I had thought that I had conveyed this withdrawal to my lawyer, Mr. Van Sickle, and in our rush to complete my materials, it would appear that there was a miscommunication between us. In reviewing paragraph 35 of my Affidavit, sworn March 2nd, 2017, I note that is states that “at this time I am still owed USD $100,000.00 from Maxjoyce under the loans”, which I interpreted to mean that at the time I withdrew the USD $300,000.00 I was still owed USD $100,000.00.
It was not my intention or desire to deceive the Court. Indeed, I produced evidence of this transfer, contained as Exhibit “C” to my Affidavit, sworn March 2nd, 2017, in the form of an account statement, dated March 1, 2017.
Authorities
[8] Rule 39.01(6) of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), states that where “a motion or application is made without notice, the moving party shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.”
[9] In Chitel et al. v. Rothbart et al. (1982), 39 O.R. (2d) 513, at para. 18, the Ontario Court of Appeal noted that a plaintiff’s failure to make full and fair disclosure can result in obtaining an incomplete and misleading picture of the parties’ relationship:
There is no necessity for citation of any authority to state the obvious that the plaintiff must, in securing an ex parte interim injunction, make full and frank disclosure of the relevant facts, including facts which may explain the defendants’ position if known to the plaintiff. If there is less than this full and accurate disclosure in a material way or if there is a misleading of the Court on material facts in the original application, the Court will not exercise its discretion in favour of the plaintiff and continue the injunction. [Emphasis added.]
[10] In Derochie v. Derochie, 2003 ABQB 345, at para. 13, Mahoney J. said:
The choice to continue or dissolve the injunction is one of discretion. Innocent or merely technical non-disclosure should not deny relief to a worthy plaintiff. Nevertheless, the importance of demanding full candour before the court cannot be over-emphasized. The rationale for this rule is well-stated in the text by Sharpe, Injunctions and Specific Performance, [Canada Law Book, 2002], at paragraph 2.40 quoting the case United States of America v. Friedland, [1996] O.J. 4399 (Ont. Gen. Div.).
The judge hearing the ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with danger that an injustice will be done to the absent party.
... For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts and law. The moving party must state its own case fairly and must inform the court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a judge is asked to grant an order without hearing from the other side.
If the party seeking ex parte relief fails to abide by this duty to make full and frank disclosure by omitting or misrepresenting material facts, the opposite party is entitled to have the injunction set aside. That is the price the plaintiff must pay for failure to live up to the duty imposed by the law. Were it otherwise, the duty would be empty and the law would be powerless to protect the absent party.
Positions of the Parties
[11] Ms. Chang submits that Mr. Deng intentionally omitted and misrepresented, among other things, the following material facts:
(a) that Ms. Chang is a director of Maxjoyce, but did not authorize the commencement of these proceedings;
(b) that Mr. Deng withdrew funds totaling $400,000 USD without the consent of Ms. Chang and in breach of the Shareholder’s Agreement between Mr. Deng and Ms. Chang. She points out that the agreement requires the consent of both Mr. Deng and Ms. Chang to withdraw any amount over $50,000 CAD;
(c) that Mr. Deng withdrew $100,000 USD of this amount from Maxjoyce’s bank account a few days before bringing this motion, without the consent of Ms. Chang;
(d) that the reason Mr. Deng withdrew these funds was to purchase property for his personal use;
(e) that despite numerous requests by Ms. Chang, he refused to issue dividends owing to Ms. Chang;
(f) that Mr. Deng is a director of various corporations that operate businesses in direct competition with Maxjoyce;
(g) that Mr. Deng has breached the shareholder’s agreement in various respects, including his failure to provide the required financial disclosure to Ms. Chang and his intentional exclusion of Ms. Chang from the financial management of Maxjoyce; and
(h) that Mr. Deng failed to include pertinent documents such as email correspondence between Ms. Chang and Mr. Deng where she explicitly refused to consent to Mr. Deng’s removal of funds from Maxjoyce’s bank account.
[12] On the first point, Ms. Chang points out that she is a director, officer and shareholder of Maxjoyce. By commencing this action without her consent or without leave of this court, the motion and the action are a nullity.
[13] She relies on rule 15.02(4) of the Rules, which provides that where a proceeding is commenced by a lawyer without the authority of his or her client, the court may, on a motion, stay or dismiss the proceeding and order the lawyer to pay costs of the proceeding.
[14] In response, Maxjoyce submits that while some information was forgotten in the motion for the Mareva injunction, that information was not material. Alternatively, the information that was left out was an honest, “sloppy” error that should not result in the order being set aside.
[15] Maxjoyce submits that the duty of full, fair and frank disclosure is not to be imposed in a formal or mechanical manner. He relies upon Verma v. Nagra, 2015 ONSC 2774, 253 A.C.W.S. (3d) 697, at para. 61, where the court stated that a “plaintiff should not be deprived of a remedy because there are mere imperfections in the affidavit or because inconsequential facts have not been disclosed.”
[16] Of greatest concern to Maxjoyce is that the setting aside of the order would expose Maxjoyce to a costs order.
Analysis
[17] In my view, Mr. Deng failed to provide full, fair and frank disclosure to the motions judge.
[18] On the issue of Mr. Deng’s authority to commence this action without Ms. Chang’s consent or without leave of the court, a presiding judge should be able to rely on counsel to ensure that matters of formality have been completed. Given the amount of material to review, simple matters of process should be completed. I have little doubt that leave would have been granted if the issue of authority were raised at the motion. While the corporate records were within the extensive brief, that issue should have been brought to the attention of the motions judge in clear terms and leave should have been requested.
[19] However, no motion has been brought to end the litigation on this basis. Similarly, I would not set aside this order on that basis. If it is still a live issue, that motion can be brought another day.
[20] Turning to Ms. Chang’s allegations that Mr. Deng intentionally omitted and misrepresented material facts, I note that the order cannot be set aside merely on the basis that Ms. Chang may have another side to the story. If there is an issue of credibility, that is for the trial judge. However, the record here discloses numerous instances of an admitted lack of candour.
[21] Mr. Deng accused Ms. Chang of “fraudulent” conduct but left out that he had engaged in the same type of conduct grounding his claim shortly before filing the motion.
[22] While relying on emails to support his case, Mr. Deng left out emails that conflicted with his evidence. Clearly, Ms. Chang did not agree with his taking of funds, but that is not what Mr. Deng put before the motions judge.
[23] Despite suggesting to the judge that he needed immediate assistance or he would have to operate on his own funds, Mr. Deng had corporate funds to do so as a result of his withdrawal of funds from the bank accounts.
[24] At the time of his affidavit of March 2, 2017, he knew Ms. Chang’s position on the removal of funds from her email of March 1, 2017. That should have been set out in clear terms for the motions judge.
[25] Combined, the plaintiff has failed to comply with his duty to the court on such a motion. These are not matters of sloppy and rushed materials; they are material facts that should have been brought to the attention of the motions judge.
[26] While that failure may have costs consequences for Maxjoyce, this is not a factor in determining whether the order should be set aside. Maxjoyce has already undertaken to abide by any order concerning damages that may be made if it appears that the granting of the order has caused damages to Ms. Chang.
[27] For those reasons, the Mareva order of March 2, 2017, is set aside.
Costs
[28] If costs cannot be agreed upon, Ms. Chang shall provide her costs submissions within the next 15 days. Maxjoice shall provide its response within 15 days thereafter. No reply submissions shall be filed unless I request them.
[29] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
[30] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Lemon J.
Date: September 25, 2018
Corrected: October 12, 2018
COURT FILE NO.: CV-17-981-00 DATE: 2018 09 25 CORRECTED : 2018 10 12 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Maxjoyce Express Inc., Plaintiff – and – Shen Tzu Chang, a.k.a. Emma Chang, a.k.a. Emma Farland, Respondent BEFORE: Lemon J. COUNSEL: B. Jenkins, Counsel for the Plaintiff J. Russo and G. Janoscik, Counsel for the Respondent ENDORSEMENT Lemon J. DATE: September 25, 2018 CORRECTED : October 12, 2018