This blog, written by Thomas E. Rutledge, focuses primarily on business entity law in Kentucky. Postings on contract law, contractual and statutory construction, and the entity law of other jurisdictions appear as well. There may as well be some random discussions of classical, medieval and renaissance history.
of Constantinople and the End of the “Middle Ages”
On this day in 1453 the city of
Constantinople, and with it the Byzantine Roman Empire, fell to the forces of
the Ottoman Empire under Mehmed II.Refounded as the Eastern capital of the Roman Empire in the early years
of the 4th Century, it had previously fallen only once, then in 1204 to an army
of Western Crusaders. The strength of its walls, especially those on the land
side, were legendary. The Hun army under Attila is reputed to have ridden up to
the walls, taken a good look and ridden away, knowing they could not take the
city.Since the fall of the Western
Roman Empire in the 5th Century, it was the Eastern “Byzantine” Empire that
continued the traditions and namesake of the “Roman Empire.”
Mehmed was able, however, to utilize the
still relatively new cannon, but cast at sizes never before seen. A combination
of the battering of the city’s walls, siege and the deprivation of supplies,
and a city without the necessary military forces to patrol and protect the
walls set the stage for its downfall. Only some seven or eight thousand
soldiers were available in the city, many of them mercenaries from Italy. Those
forces were stretched even more thinly after the Ottoman forces were able to bring
ships into the “Golden Horn” which ran along a portion of the walls.Now the Ottomans did not sail their ships
into the Horn - it was protected by a large chain that blocked the entrance,
the chain being supported by barrel floats.Rather, the ships were beached and pulled up and over the surrounding
hills, then relaunched in the Golden Horn.The exact figure for the number of defenders of the city really is not
of much import; the attacking army numbered somewhere between seventy-five and ahundred thousand.
Ultimately the Ottoman forces were able
to force entry through a gate left open in the walls through which a wounded
Byzantine commander (he himself was from Genoa) had been evacuated. The last of
the Byzantine emperors, Constantine XI (who as well enjoyed the title as the
Despot of Morea - very Tolkenish), died leading his troops in a final push
against the enemy; or at least it is so assumed - the accounts record him
leading the troops and his whereabouts are never again reported, his body was
Some scholars treat the Fall of
Constantinople as the end of the Middle Ages. An interesting notion, but since
scholars can’t agree as to what are the characteristics of the Middle Ages, it
is hard to say the age ended as of one point in time or another. Maybe for that
reason May 29, 1453 is as good a day as any.
Today is the anniversary of an important
event of which you likely have never heard and which is of itself of interest
only to scholars, the Battle of the Eclipse.
The battle itself took place in 585 BC in
what is now Turkey between a force of Medes and a force of Lydians. Like I
said, this is specialist stuff - the Medes and the Lydians have passed from
history as distinct peoples. Today, if remembered at all, it is likely the
Medes who were cannon fodder against the Spartans under Leonidas at the Battle
The importance of the battle is that it
was interrupted by an eclipse, and the time and date of that eclipse can be
ascertained astronomically. As such it serves as a fixed point from which to
measure dates. In an era in which dates were typically recorded in reference to
rather transient events such as in the thirteenth year of the reign of King
Whomever, a fixed point is very useful. If it is known that the Battle of the
Eclipse took place in the fourth year of the reign of King X, and that his
total reign was of 26 years, then we can know that he died some 22 years after
585 BC, and from there the reign of the successor to the throne can be
measured. When that king, in his fifth year, signs a treaty with a neighbor,
and it is the ninth year of that neighboring king's reign, it is now possible
to start putting a series of events into chronological context.
In a recent decision from a
federal district court in Georgia, it was held that, under the Georgia LLC Act,
a petition for a charging order need not be served on the LLC itself. First Southwestern Financial Services, LLC v. Dennis Waters
Construction, LLC, Civil Action No.: 4:13-CV-260, 2019 WL 1782123 (S.D. Ga.
April 23, 2019).
In this instance, First
Southwestern sought a charging order against the interest of Dennis Waters in
numerous LLCs. Although it is not entirely clear as to why the question arose
(the defendant never responded to the request for a charging order), the court
considered whether it was necessary to serve the application for the charging
order upon the subject LLC. Comparing the Georgia LLC Act’s charging order
statute (O.C.G.A. § 14-11-504) to those of other states including with the
equivalent provision of the Kentucky Uniform Partnership Act (Ky. Rev. Stat. Ann.
§ 362.481), in the absence of a provision in the Georgia statute requiring that
service of the charging order be made as well upon the LLC, as well as a
limited rights afforded one to whom a charging order is granted, it was held
the service on the
LLC is not required.
More on LLCs Must
Be Represented By Attorneys; Alaska Speaks
Across the states, it is
accepted that an LLC may appear in court only through an attorney. On the
recent decision from Alaska’s adopted that same rule. Parlier v. Can-Ada Crushing & Gravel Co., S. Ct. No. S-17358,
2019 WL 2064048 (Alaska May 10, 2019).
In this decision, the Alaska
Supreme Court extended a statute which requires that a corporation be
represented in court only by an attorney to include LLCs, citing in support not
only prior Alaska law but also the decisions from other jurisdictions.
Today, May 19, marks the anniversary of
the execution in 1536 of Anne Boleyn on spurious charges of adultery and
therefore (by one argument) treason.While she would be included in Foxe’s Book of Martyrs, a 16th century
effort at Protestant hagiography, all indications are that Anne died a
Catholic; it is difficult to otherwise understand her request that the
Eucharist be placed in her chambers at the Tower of London in the days before
It was a convoluted process that brought Anne
Previously, Henry VIII had been married
to Catherine of Aragon.That marriage
would ultimately sour on the fact that only one of the children of Henry and
Catherine survived infancy, that being Mary.England was not, it was feared, ready to be ruled by a queen.The only example of it doing so, that being
the reign of the Empress Matilda (daughter of King Henry I) was referred to as
the “Anarchy.”Seeking to perpetuate the
dynasty and avoid the possibility of civil war after his death, Henry pursued
the Divorce (it was actually what we would refer to today as an annulment) so that
he could marry Anne Boleyn.
The Divorce could not easily be had
consequent to at least a pair of factors.Initially, on theological grounds, the basis for the Divorce was
weak.Second, Eleanor’s nephew, Charles
V, was King of both Spain and the Netherlands and as well Holy Roman
Emperor.He was able to delay any Papal decision
on the Divorce, thereby depriving Henry of the one thing he did not have,
namely time.Ultimately, Henry would
schism the English church from Roman communion (an act which earned for Henry
his very own bull of excommunication).The marriage to Catherine of Aragon was then annulled by Thomas Cramer,
Archbishop of Canterbury notwithstanding that he did not have he authority to
do so. Now “single,” Henry proceeded to marry Anne Boleyn.She, already pregnant at the time of the
marriage, would be the mother of Elizabeth.Elizabeth would be their only child.Henry was now in no better position than he was before; two potential
female heirs to the throne did not address the perceived need for a male
heir.Anne’s fortunes would ultimately
be destroyed consequent to a series of events whose genesis is still greatly
debated, but it is clear that the charges of adultery and incest for which she
was convicted and executed were entirely fabricated.Regardless, by some means Thomas Cromwell was
told to make it happen, and he did.
On April 30, 1536 Mark Smeaton, a court
musician and hanger-on, was arrested, this being the first overt step in
Cromwell’s plan to bring down Anne Boleyn.According to one source, Cromwell had Smeaton brought to his own house
and there tortured him.Eventually,
Smeaton would be racked and confess to have committed adultery with Anne
Boleyn.Some five additional men would
be arrested on similar grounds. One of them, Wyatt, was not ultimately charged.
The first trial (albeit indirect) of Anne
Boleyn took place on May 12, 1536.Anne,
however, was not a participant in the trial.Rather, at this trial each of Mark Smeaton, Henry Norris, William
Brereton and Francis Weston were charged with multiple acts of adultery with
the Queen.Sadly, no transcript of the
proceedings, if made (and that is doubtful), survives.All were found guilty, thereby sealing Anne’s
fate.She did not attend the trial;
rather, at that time she was confined in the Tower of London.Her father, Thomas Boleyn, did sit on the
jury – his vote in favor of their conviction sealed the fate of his children.
On May 15, 1536, Anne Boleyn as well as
her brother George were tried on allegations of adultery and incest.As to Anne, the conclusion of this “trial”
was a foregone conclusion.Four of the
men with whom Anne was accused of having engaged in adultery, Mark Smeaton,
Henry Norris, William Brereton and Francis Weston, had already been convicted
on May 12, and, so goes the adage, it does take two to tango.George was convicted on the charges against
Although some incomplete notes of this
trial do survive, sadly no transcript is available; it would no doubt make
interesting reading.It is clear that
both Anne and then George (George’s trial was separate and held after that of
Anne) denied all charges against them.Those denials (as well as the expected denials of the other men charged
with having committed adultery with Anne) must be accepted at face value.As has been demonstrated by several scholars,
most conclusively Eric Ives, the author of the definitive biography of Anne,
Anne and her various co-conspirators could not have been guilty of the charges
made – even with the incomplete records available to us today, it can be
demonstrated that in numerous instances Anne and a particular gentleman were
charged with having committed adultery at a particular time and place when, in
fact, either or both of them were at a different place or even two difference
places.The truth, however, was not the
issue; the outcome of the trial was a foregone conclusion before it ever
started.Henry was tired of Anne, and
Cromwell had been charged to bring about her fall. End of story.
On May 14, Cramner, Archbishop of
Canterbury, had declared the marriage of Henry and Anne to have been invalid ab
initio, possibly (the papers as to his determination have been lost) on the
basis of her prior contract of marriage to Henry Percy the son of the then
Fifth Earl of Northumberland (this Henry would be the Sixth Earl). An
alternative basis was that Mary Boleyn, Anne's sister, had been Henry's
mistress, and on that basis the marriage could have been invalid based upon
consangruity. Regardless as to why, Anne would not die as the Queen of England,
having never been validly married to Henry, and their daughter Elizabeth (the
future Queen Elizabeth I) was rendered illegitimate.
All of Mark Smeaton, Henry Norris,
William Brereton and Francis Weston, along with George Boleyn, would be
executed on May 17.Anne’s death would
not take place until May 19.
Famously, Anne was executed not with the
traditional English ax, but rather by a French swordsman. I have never found a
satisfactory explanation as to why the swordsman was requested over the axeman;
Friedmann (another biographer of Anne) suggested, and Ives admits it as a
possibility, that it was at Anne’s request, she desiring the French manner of
execution in light of her having been raised in the French court. There is,
however, a problem of chronology. Anne was consigned to the Tower on May 2, her
alleged partners in adultery (other than her brother George) were tried on May
12, and she was tried on May 15.The
swordsman, normally resident in Calais, may have been ordered to come to
England before Anne’s trial. If so, there is further evidence that the trials
were for show and the verdicts were pre-determined; even though her trial had
not yet taken place, the manner of her dispatch may have already been
selected.Still she came out ahead (no
pun intended); her sentence was commuted to beheading – the regular sentence
for a woman convicted of treason was burning at the stake.
Anne was buried in St. Peter ad Vincula,
the church on the grounds of the Tower of London.There she joined Sir (now Saint) Thomas More,
another of Henry’s victims.
Henry would marry Jane Seymour, his third
wife, on May 30. She shortly thereafter became pregnant, ultimately delivering
a son who would survive infancy.That
child was Edward VI.Jane would die of
complications from childbirth. While Henry would go on to marry three more
times, namely to Anne of Cleves, Catherine Howard and Catherine Parr, none of
them would have children by him. Edward VI would die, probably of tuberculosis,
in his mid-teens.Mary and then
Elizabeth, the girls Henry feared could not rule, would in turn rule
England.As observed by Peter W. Hogg,
Succession to the Throne, 33 Nat'l J. Const. L. 83 (2014):
[W]hile Henry VIII
was engaged in his obsessive quest for a male heir he could not know that his
daughter Elizabeth by Anne Boleyn (the second of his six wives) was destined to
become the greatest monarch England had ever known.She became Elizabeth I (Good Queen Bess, as
she was known), and ruled for 45 years (1558-1603, England's “golden age”).Henry should have stopped worrying and
settled down with Anne Boleyn instead of beheading her.
LLCs May Appear in Court Only Through an Attorney
Most states now have a ruling to the
effect that an LLC may appear in court only through an attorney.In Illinois that ruling is Stone Street Partners, LLC v. City
of Chicago Department of Administrative Hearings, 12 N.E.3d 691 (May 20, 2014), aff’d
88 N.E.3d 699 (Feb. 20, 2017). A recent decision applied that rule in a
question over jurisdiction.Cross v. Wal-Mart Stores, Inc., 2019 IL
App. (5th) 180350-U, 2019 WL 1984604 (Ill. App 5th May 2, 2019).
involved a medical LLC’s claims for payment on services rendered to Cross after
a slip and fall injury in a Wal-Mart store. The LLC was never served, and the
question was whether a non-attorney’s participation in a hearing served to
waive the requirement of service and a consent to the court’s jurisdiction. It
was held that an LLC had not made a general appearance in an action when the
company representative was not an attorney. Rather:
Finally, it cannot be said that the Non-Parties submitted to the
court’s jurisdiction when James appeared at the hearing on Plaintiff’s amended
petition to adjudicate liens and inchoate claims under the Act. The Plaintiff’s
contention that James’ appearance at the hearing to adjudicate the liens was a
“general appearance” by the Non-Parties sufficient to waive service of process
is misplaced. The Non-Parties are limited liability companies, which can only
appear in legal proceedings via an attorney. See Stone Street Partners, LLC, 2014 IL App (1st) 123654, ¶¶ 17,
21. It is undisputed that James, while an employee of the Non-Parties, was not
an attorney and was unable to present evidence and argument on behalf of the
Non-Parties at the hearing. As a non-attorney, James’ attempted
“representation” of the Non-Parties at the hearing does not legally constitute
an “appearance” on behalf of the Non-Parties, waiving the right of the
Non-Parties to service of process to acquire personal jurisdiction.
In Peter Mahler’s blog New
York Business Divorce, Franklin C. McRoberts has posted a summary of the
requirements applicable, under New York corporation law, for the prosecution of
a dissenter rights action. Why your state may not follow the exact same
procedure, this posting provides a useful outline of what you need to look for
under the laws of other jurisdictions.
That posting, entitled How to Initiate a Fair Value Appraisal
Proceeding as a Dissenter’s Checklist, is available at the following link: HERE IS A LINK.
Business Law Update: Cases (and a Few Statutes) of Which You
Need To Be Aware
On Thursday, June 13,
at the KBA Annual Convention, the KBA Section of Business Law will be presenting Business Law Update: Cases (and a Few
Statutes) of Which You Need to be Aware.
Business Law Update is designed to bring attendees
up to speed on the most important cases
handed down by Kentucky and other courts over the last two years. The developments being reviewed are important
for both the business law practitioner and the business law litigator. While there
will not be time to review every case in the voluminous outline, presenters Elizabeth M.
Reeder and Thomas E. Rutledge will highlight particular
decisions. In addition, their presentation will
address a number of cases that have come down after the due date for the outline.
This presentation will be from
3:45 through 4:45 in
the French Room.
Business Organizations Must
Be Represented By Attorneys In Unemployment
In a recent decision
from Kentucky Court of Appeals, it struck down as unconstitutional a statute allowing
(corporations, partnerships, LLCs, etc.) to appear at hearings on unemployment compensation through
persons who are not attorneys. Rather, it was held that the employer must be represented by an attorney. Nichols v. Kentucky Unemployment
Insurance Commission, No. 2017-CA-001156-MR, 2019 WL 1868589 (Ky. Ap. April 26, 2019).
dispute, Norton Healthcare, the employer of Nichols, appeared before an Unemployment Insurance Commission
Skinner, the Director of Clinical Engineering
at Norton (and not an attorney). Nichols’ application for
was denied. Before the Court of
Appeals the question
was valid because of the employer’s
a non-attorney. Ultimately, the denial of
benefit would be
because of Norton’s improper representation
by a non-attorney.
There was a statute, KRS § 341.470(3), that permitted a partnership or
to appear through non-lawyers at unemployment hearings. In this ruling, the Court of Appeals would strike down
is unconstitutional, finding that:
The statutory provision
allowing corporate or partnership employers to appear pro se through non-lawyer
representatives in unemployment proceedings, violates the separation-of-powers
provisions of the Kentucky Constitution. Since Norton was represented by a
non-attorney in the administrative proceedings before the Commission, we must
vacate the circuit court’s order with directions to remand this matter to the
Commission for a new administrative hearing.
This decision is consistent with
of the Kentucky Supreme
Court with respect
by a non-attorney of a business organization. Applying that prior law, this panel of the Kentucky Court of Appeals wrote:
However, in Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998), our Supreme Court held
that a similar statute authorizing non-attorneys to represent and advise
workers’ compensation claimants encroached on the exclusive power of the
judiciary to establish rules relating to the practice of law. Id. at 562-63. See alsoKY. CONST. § 116. “Legal representation by a lay person before an
adjudicatory tribunal, however informal, ... as such representation involves advocacy
that would constitute the practice of law.” Turner, 980 S.W.2d at 564. Furthermore, the Court
expressly declined to extend comity to the statute at issue in Turner. Id. at 563.
We emphasize that individual
employers, such as a sole proprietorship, have the right to represent
themselves in any administrative or legal proceeding. We also recognize that KRS 341.470(3) has a laudable goal of trying to simplify
proceedings before the Commission. However, it is well-established that
representation of a corporate or non-natural entity by a non-attorney
implicates the unauthorized practice of law. SeeSCR
3.020. See alsoStatewide Environmental Services, Inc. v. Fifth Third Bank, 352 S.W.3d 927, 929 n.4 (Ky. App. 2011). Based on Turner, we are compelled to conclude that this
restriction also applies to proceedings before administrative agencies.
Therefore, to the extent that KRS 341.470(3) provides otherwise, the statute violates the
separation-of-powers provisions of the Kentucky Constitution.
Ninth Circuit Court
of Appeals Addresses Distinction Between Traditional and Business Trusts for
Purposes of Diversity Jurisdiction
In a decision rendered earlier
this month by the Ninth Circuit Court of Appeals, it addressed whether a
particular trust would be treated as a traditional trust or a business trust
for purposes of diversity jurisdiction. In this instance, having examined the
documents that brought the trust into existence, it was determined that it
would be treated as a traditional trust. Demarest
v. HSBC Bank USA, N.A., ___ F.3d___, No. 17-56432, 2019 WL 1510430 (9th
Cir. April 8, 2019).
Demarest brought this action in
state court challenging the foreclosure of her property. HSBC, as the trustee
of the deed of trust holding as assignee the mortgage, along with other
defendants, removed the action to federal court, where they were granted
summary judgment. In this appeal, Demarest sought a determination that the
removal of the action to federal court was deficient. She would lose that
While the law in this area has
noteworthy exceptions, the generally accepted rule is that, with respect to a
traditional trust, its citizenship, for purposes of determining whether or not
there exists federal diversity jurisdiction (28 U.S.C. § 1332) will be that of
the trustees (i.e., the citizenship of the beneficiaries as beneficiaries will not
be attributed to the trust). In contrast, a “business trust,” a category that
includes a variety of business organizations that, while utilizing “trust” in
their respective names, do not share the elements of a traditional trust, will
be assessed like any other unincorporated organization and the citizenship of
all of the members (i.e., the trust’s beneficiaries) will be
attributed to the trust. In this instance the plaintiff was alleging that, as
HSBC had not demonstrated that none of the beneficiaries of the trust were
California citizens, the removal of the action failed.
The plaintiff’s position was
based upon the US Supreme Court's decision in Americold, wherein it clarified the law with respect to traditional
trust versus unincorporated business organizations; HERE IS A LINK to my review of the Americold decision. Also HERE IS A LINK to my review of two
subsequent decisions applying the holding in Americold. The plaintiffs reliance on Americold was rejected on the basis that the trust here at issue
for which HSBC served as the trustee was a traditional common law trust and not
a business trust as contemplated by the Americold
ruling. As observed by the court:
things, the Agreement established the Trust, enumerated its assets, and
appointed HSBC as trustee, and it described the Trust as a common-law trust
governed by New York law. Id.
In addition, the trust afforded
the trustee, in that capacity, the power to institute a “suit or proceeding in
its own name as Trustee.” Id. *6.
Based upon these characteristics, it was determined that the trust at issue is
a common-law trust subject to the rule of Navarro
Savings Ass’n v. Lee, 446 U.S.
458 (1980), under which only the citizenship of the trustees, and not the
citizenship of the beneficiaries, would apply in determining citizenship for
purposes of diversity jurisdiction.
In the Newest Members of the Papal Swiss Guard
Yesterday, on the anniversary of the
Sack of Rome in 1527 by troops of Charles V,Holy Roman Emperor, twenty-three new members of the Papal Swiss Guard
were sworn into service.
Since the late 15th Century Italy (or
at least the region we today identify as Italy – the notion of the region as a
nation was long in the future) had been repeatedly invaded by forces from
Northern Europe, each seeking to claim dominion over one area or another. Rival
claimants to the crown of Naples caused as much trouble as did anything, but
economic rivalry between for example Genoa and Venice did nothing to calm the
waters.Pope Alexander VI gave command
of the papal army to his son/nephew (which is a matter of dispute) Cesare in
order to bring some order, and Pope Julius II would actually don armor and lead
his army into battle, again in an effort to bring some stability to the
situation.While Erasmus would condemn
Julius for doing so, he did ignore the fact that the targeted cities
surrendered to him.
But back to the Sack of Rome.Charles’ forces were at this point battling
the League of Cognac, it being comprised of France, Milan, Venice, Florence and
the Papal States.Keeping track of the
various Leagues through the Italian Wars is a troubling task; the League of
Cambrai was initially formed against Venice by the Papacy, France, Spain and
the Holy Roman Empire. Later the initial members would be allied against France
with Venice as an ally. In the next permutation Venice and France would be
against the Papacy, Spain and the Holy Roman Empire. After a significant victory
over the French army Charles’ troops were restive in that they had not been
paid – most were mercenary. Pillaging Rome would be a way of paying the troops.
The city was not well defended, although its formidable walls did need to be
and were breached.Their commander
having fallen in the course of the attack, discipline immediately broke down among
the troops, and a sack of over three days began.
The Pontifical Swiss Guard, created
only in 1506 under Pope Julius II, rose to the occasion. Of its then number of
189, 147 would fall defending Pope Clement VII, affording him time to take
refuge in the Castel Sant’Angelo (Hadrian’s Mausoleum). In recognition of this
event, new members of the Pontifical Swiss Guard are sworn in on May 6.
There was in 2013 an event unique to
the Guard, namely the recognition of a Pope’s retirement. Benedict XVI left the
Vatican as Pope, flying to the Castle Gandolfo. The Swiss Guard accompanied him
to the castle and there stood guard. When the moment his resignation became
effective, and Benedict became not Pope but Pope Emeritus, the Guards left
their station at the castle and returned to Rome. While the Vatican has its
security forces, and they no doubt continued to provide protection for
Benedict, the Swiss Guard serve the Pope.
You Cannot Sue
Somebody For Not Doing What They Never Agreed To Do
In a recent decision from the
Delaware Court of Chancery, the court considered and rejected a variety of
claims brought by a member of an LLC. One of those claims was that the managers
of the LLC never sent to the plaintiff certain company books and records. The
problem with this aspect of the suit was that the manager never undertook that
responsibility. Ross v. Institutional
Longevity Assets LLC, Civ. Act. No. 2017-0186-TMR, 2019 WL 960212 (Del. Ch.
Feb. 26, 2019).
The plaintiff, Ross, brought
suit against a number of parties who were members in Institutional Pooled Benefits
LLC (“IPB”). It is important that at this juncture in the litigation IPB was no
longer a defendant. Rather, as matters were here proceeding, Ross asserted that
members Institutional Longevity Assets, LLC (“ILA”) and MRB Pooled Benefits, LLC
(“MRB”), as well as certain of their individual constituents, violated certain
duties arising out of the operating agreement.
Ross brought a claim couched as
breach of contract for failure to send to him certain financial statements. The
problem with this complaint was that none of the defendants had undertaken the
obligation to provide to Ross those financial statements. Rather, as the
Chancery Court would note, “The terms of the Operating Agreement unambiguously
refer to IPB as the responsible party, not the Defendants.” 2019 WL 960212, *4.
On that basis, the claim was
dismissed as a matter of law.
In a recent decision from a federal
district court in Iowa, it held that certain relationships are not fiduciary in
nature.Meardon v. Register, 3:18-cv-00042, 2018 WL 7858345 (S.D. Iowa Dec.
Responding to the suggestion that a
fiduciary relationship arose out of a long-term business relationship gave rise
to a fiduciary duty, the court wrote “Business relationships alone are not
fiduciary relationships; nor are friendships.” Id, *7.