The opinion of the court was delivered by: Legrome D. Davis, J.
Plaintiffs MP III Holdings, Inc., Peter C. Morse, and R. Bruce Dalglish (together, "MP III" or "Insureds") brought this action against their insurer, The Hartford Casualty Insurance Company ("Hartford" or "Insurer"), under Pennsylvania's insurance bad faith statute, 42 Pa. C.S. § 8371, based on Hartford's conduct with regard to its defense and indemnification of underlying claims between MP III and the Pennsylvania Business Bank ("PBB" or "Bank"). The parties have filed cross-motions for summary judgment to determine whether Hartford is liable for bad faith. We hold that no genuine issue of material fact exists, and, because MP III has failed to produce clear and convincing evidence from which a jury could reasonably conclude that Hartford acted in bad faith, we grant Hartford's motion for summary judgment and deny MP III's.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn1
MP III was formerly in the business of training truck drivers. Peter C. Morse and R. Bruce Dalglish were its principal stockholders. Hartford was its insurance company. In early 2002, a financial crisis in the trucking school industry occurred when Student Finance Corporation ("SFC"), a company that securitized truck-driving student loans, collapsed due to a high rate of loan default by students of MP III and its competitors in the industry who had sold loans to SFC. In the resulting tumult, MP III was named as a principal defendant in three separate lawsuits: two in the state courts of Pennsylvania and Texas, and one in the District of Delaware bankruptcy court. MP III called on its insurer, Hartford, to defend and indemnify it in each of the three actions under the terms of an insurance policy Hartford issued to MP III the year before. It would seem that Hartford has not done very good job, however, as the present case constitutes the third time that MP III and Hartford have litigated bad faith insurance allegations related to the three 2002 lawsuits.
The first bad faith claim, brought in 2005 along with an underlying coverage dispute, was settled by the parties in March of 2007. MP III brought a second bad faith claim in 2008 in this court. Upon Hartford's prior request, Judge Mark Bernstein of the Pennsylvania Court of Common Pleas ruled in February, 2010 that the claim was precluded by the agreement that settled the first claim. At the core of this third claim, also filed with us in 2008, and amended in 2010, are MP III's allegations that Hartford acted in bad faith when it (1) allegedly terminated the defense of MP III against underlying claims brought in 2002 by PBB, and sought declaratory judgment in Pennsylvania state court that it did not have a duty to defend MP III against those claims, (2) "threatened" to terminate the defense if MP III did not assert a certain position in arbitration between MP III and PBB that MP III considered frivolous, (3) "intentionally misrepresented" its position by telling MP III that it was not necessarily terminating coverage, when it actually was. (Pl.'s Br. Supp. Mot. Summ. J., Doc. No. 69-2 at 1 & 26.)
While this constitutes the gist of the present claim, the relevant backdrop is a complex and contentious factual mosaic, covering almost a decade of litigation in a half-dozen courts. Because MP III asserts that a range of Hartford's conduct was in bad faith, and because the perceived rights and obligations of the parties hinge on the interplay between a plethora of factors spanning a significant time period, we describe the vast picture in its entirety, below.
A. The Underlying PBB Action and the PBB-MP III Agreement
In 2002, MP III was sued three times. First, The Royal Indemnity Company ("Royal") sued MP III in state court in Texas ("Texas Action" or "Royal Action"). MP III and its competitors had sold student loans to SFC, who securitized them. Royal insured payment to the security holders in the event of default by the student borrowers. In Royal Indemnity Company v. MP III Holdings, Inc. et al, Case No. D 1673 70 (Dist. Ct. Jefferson Cnty., 58th Judicial Dist.), Royal sued MP III and other truck driving schools for engaging in an alleged fraudulent ponzi scheme with SFC in connection with the tuition loans which Royal claimed induced it to provide the insurance. Faced with these claims, MP III called upon its insurer, Hartford, to defend and indemnify it under the terms of a previously-issued Educator's Legal Liability Policy.
Also in 2002, in Stanziale v. MP III Holdings, Inc. et al., Adversary Proceeding No. 04-56408 (Bankr. D. Del. 2002) ("Delaware Action" or "Stanziale Action"), SFC's bankruptcy trustee filed suit against MP III to recover $32 million that SFC had transferred to MP III as a result of the alleged tuition loan fraud at issue in the Royal Action. Again, MP III sought defense and indemnity from Hartford.
Although the parties' activities related to these two lawsuits are relevant to the present bad faith claim, the underlying piece of litigation primarily at issue in the instant dispute involves the third 2002 action- PBB's suit against MP III in the Pennsylvania Court of Common Pleas for Philadelphia County ( "PBB Action"). Around the same time that SFC collapsed, Morse and Dalglish sold all their MP III stock to a competitor, Franklin Career ("Franklin"), which took control of MP III's operations. Franklin guaranteed it would repay a $1.5 million loan PBB had made to MP III but it failed to so. PBB brought suit against MP III, Franklin, Morse and Dalglish in connection with the loan default and the MP III -- Franklin merger, which PBB contended was designed to defraud it.
In response to the claims asserted by PBB, MP III asserted cross claims against third-party defendants, Leeds Weld, alleging that Leeds Weld had interfered with the merger contract between MP III and Franklin. Morse and Dalglish also asserted counterclaims individually against PBB. As was the case in Texas and Delaware, MP III sought defense and indemnity from the Hartford in this action.
On October 13, 2006, shortly before trial in front of Judge Bernstein, the two primary parties, PBB and MP III, executed a "Settlement Agreement and General Release" (the "PBB Agreement") in which they expressly agreed to dismiss PBB's claims from court. (Def.'s Mot., Ex. 4, Doc. No. 70-13.) MP III's third party claims against Leeds Weld were to remain in front of Judge Bernstein. Because the present parties dispute the effect of this Agreement on Hartford's coverage obligations, it is worth discussing and quoting in detail.
The Agreement begins with several "whereas" clauses that frame the Agreement, including clauses setting out (1) the nature and parties in the underlying lawsuit,*fn2 (PBB Agreement, Def.'s Mot., Ex. 4, Doc. No. 70-13), (2) the parties' intentions to dismiss the claims with prejudice and resolve them through mediation and, if necessary, arbitration,*fn3 (id. at 1), (3) that PBB's claims are set forth in the Fourth Amended Complaint in the PBB Action and MP III's in the Counterclaim,*fn4 (id.), and (4) that the parties have completed discovery.*fn5 (Id.)
The Agreement then contains fourteen paragraphs detailing the terms of
the settlement. PBB agreed to "dismiss without prejudice and without
costs PBB's lawsuit (namely claims) against Morse, Dalglish and MP III
in its entirety."*fn6 (Id. at ¶ 1.) Morse and Dalglish
agreed to the same regarding their counterclaim. (Id. at ¶ 2.) The
parties agreed to submit their claims and defenses to mediation, which
could occur only after MP III's claims against Leeds Weld had been
resolved.*fn7 (Id. at ¶ 3.) If mediation did not
resolve the issues between PBB and MP III, the Agreement states that
the claims were to be submitted to binding arbitration.*fn8
(Id. at ¶ 4.) The Agreement states that it "represents the
settlement of disputed claims and a counterclaim," and is not
admission of guilt.*fn9 (Id. at ¶ 6.) Importantly, the
Agreement contains a covenant regarding distribution of any proceeds
MP III receives from the Leeds Weld defendants on its claims that
remained in front of Judge Bernstein.*fn10 (Id. at 7.)
Those proceeds were to be "deposited into an
escrow account" and "disbursed either by agreement of the parties or
in accordance with or consistent with an Order or award from the
Arbitration conducted pursuant to this Agreement." (Id.) Next, in the
"Mutual Release" clause, the parties state that they "completely
release, acquit, and forever discharge one another . . . from any and
all claims that in any way relate to, arise out of, or are or could
have been asserted in the Lawsuit . . . ."*fn11 (Id.
at ¶ 8.) Finally, the Agreement contains various provisions regarding
governing law, authorization, entire agreement, and the like.
Within two weeks of the execution of this Agreement, on October 25, 2006, Judge Bernstein docketed the matter as "settled discontinued and ended" as to Defendants MP III, Morse and Dalglish. (State Court Action Docket, Def.'s Mot., Ex. 5, Doc. No. 70-14.) The third party claims by MP III against the Leeds Weld Defendants remained active.
After the Agreement was entered into on October 13, 2006, counsel for MP III, Alan Cotler of the law firm Reed Smith, sent the Agreement to John Grugan of the law firm Ballard Spahr, who was then counsel for MP III's insurer, Hartford. The facsimile cover sheet stated that the Agreement "sever[ed] those claims out of the . . . case and put them into mediation or arbitration. The . . . case will continue with respect to Dalglish's and Morse's claims against Leeds Weld." (Pl.'s Mot. Ex. I, Doc. No. 69-10.) Grugan, along with Warren Freiman-Hartford's Claims Manager for PBB's claims against MP III, and Naomi Kinderman-Hartford's in-house lawyer, all testified that they reviewed the agreement. (Grugan Dep. at 86 & 91, Pl.'s Mot, Ex. G, Doc. No. 69-10; Freiman Dep. at 97-100, Pl.'s Mot., Ex. C., Doc. No. 69-9; Kinderman Dep. at 144-144, Pl.'s Mot., Ex. I, Doc. No. 69-10.) None of these individuals opined at that time of the agreement on its effect on Hartford's defense of MP III. Internal communications at Hartford and reinsurance reports throughout 2007 show an awareness that the PBB Action was severed from court, with Freiman stating by email that the case "has by stipulation been referred to arbitration." (Pl's Mot., Ex. M, Doc. No 69-11.)
In January of 2008, sixteen months after the PBB Agreement, Judge Bernstein issued an opinion ruling against MP III on its remaining third party claims against Leeds Weld. (Def.'s Mot. Ex. 2, Doc. No. 70-7.) Judge Bernstein noted in his opinion that, at oral argument, MP III had "conceded that they had no valid claim against the majority of the defendants whom they had named and against whom they had prosecuted their claims for over four years. . . . [MP III] admitted that several of [the defendants] do not exist and that no evidence had been offered to show that the others had anything to do with either Franklin or the proposed merger."*fn12 (Id.)
Soon after Judge Bernstein handed down his decision, MP III informed its insurer, Hartford, that it was planning to appeal. In a letter of February 21, 2008, Hartford, by way of new outside counsel Ronald Schiller, then of the law firm DLA Piper, expressed its opinion that it had a lack of a contractual obligation with respect to the funding of the appeal of those affirmative claims, and further expressed its opinion that the October 2006 Agreement between PBB and MP III released PBB's claims, therefore, there was nothing left to defend in the PBB Action ("Schiller's February 21st Letter," Pl.'s Mot., Ex. 10, Doc. No. 69-4.) Hartford brought a subsequent declaratory judgment action in the Philadelphia Court of Common Pleas in this regard.*fn13
On appeal of Judge Bernstein's decision against MP III on the Leeds Weld claims, the Pennsylvania Superior Court affirmed the directed verdict, noting that MP III had "blatantly misrepresent[ed]" witness testimony. Pennsylvania Business Bank v. Franklin Career Services, LLC, et al., No. 1481 EDA 2007 at 16 (Pa. Super. Ct., Mar. 27, 2009) (Def.'s Mot, Ex. 6, Doc. No. 70-15). The Pennsylvania Supreme Court denied MP III's petition for appeal.
B. Prior MP III -- Hartford Coverage Dispute and Settlement Agreement
In 2005, prior to the PBB Agreement, during the pendency of the three actions against MP III, MP III sued Hartford in Pennsylvania state court alleging that Hartford breached its duty to defend it in the PBB Action and the two other cases that were proceeding concurrently in Texas and Delaware. The suit, which sought coverage under the insurance policies and damages for bad faith conduct, was removed to the U.S. District for the Eastern District of Pennsylvania.
Hartford filed a motion to dismiss the Count of that complaint alleging it had breached the duty to defend MP III in the Texas case, and MP III cross moved for summary judgment on the same Count. Judge Norma Shapiro, in an opinion dated September 14, 2006, held that Hartford had a duty to defend MP III as long as the negligent misrepresentation count remained in the underlying Texas action. MP III Holdings Inc. et al., v. The Hartford, Civ. A. No. 05-1589, 2006 WL 2645156 (E.D. Pa. 2006). Six months later, on March 19, 2007, the parties settled the remaining aspects of the dispute by executing a "Confidential Settlement Agreement and Mutual General Release." ( "Hartford Release," Pl.'s Mot., Ex. 64, Doc. No. 69-6.) In this Agreement and the incorporated recitals, Hartford agreed to pay $4.8 million to settle outstanding fees and bad faith claims relating to the underlying suits, and pay certain hourly rates for any ongoing defense costs in the Texas and PBB actions under a reservation of rights. (Def.'s Mot, Ex. 9, Doc. No. 70-18.) The Hartford Release and associated recitals state that the Texas and PBB actions are "ongoing and have not been concluded." This release between MP III and Hartford was executed five months after the agreement between MP III and PBB settling their lawsuit and agreeing to mediate/arbitrate.
C. The February 21st and March 4th Schiller Letters
In mid-2007, following the settlement of the first bad faith action in Texas, Hartford retained Schiller to represent Hartford's interest as insurer of MP III in the underlying claims in the Texas action. Im early 2008, shortly after Judge Bernstein decided against MP III in its affirmative claims against Leeds Weld, additional disputes arose between MP III and Hartford related to the PBB Action in Pennsylvania. On February 21, 2008, Schiller sent a letter to counsel for MP III, which he characterizes in his Response to MP III's Request for Written Interrogatories as aiming to:
[C]larify whether the MP III Defendants intend to seek further reimbursement for any fees or costs, incurred in the appeal of the Leeds Weld Claims or the defense of any future PBB claims since none existed at the time but MP III was still demanding payment . . . [and to state] Hartford's legal conclusion that the PBB "Settlement and General Release Agreement" released all claims and counterclaims between PBB and the MP III Defendants, except for any mediation and/or arbitration that would occur to divvy up the spoils if, but only if, the MP III Defendants prevailed in their affirmative claims against the Leeds Weld Defendants. The MP III Defendants did not prevail in those affirmative claims and, absent reversal on appeal, The Hartford concluded there was no likely claim left to defend under the PBB "Settlement and General Release Agreement." (Pl.'s Mot., Ex. P, Doc. No. 69-11.)
Because MP III places significant weight on this letter in its allegations of bad faith, it is worth summarizing and quoting its contents in detail. Schiller begins the letter, which is addressed to MP III counsel Cotler, by stating that, the day before, Hartford had forwarded to Schiller two documents-(1) Judge Bernstein's decision in the PBB Action ruling against MP III's affirmative claims against Leeds Weld, and (2) the October 13, 2006 settlement agreement between PBB and MP III. He states that this was the first time he had seen either document though he understood that MP III "may have discussed the PBB settlement agreement with [Hartford's previous outside counsel,] Ballard Spahr." (February 21st Letter, Pl.'s Mot., Ex. 10, Doc. No. 69-4.) Schiller states that he and Hartford were "surprised" when they received the PBB settlement agreement, especially in the context of the Hartford-MP III settlement agreement discussion and negotiations. (Id.) "As recently as last week," the letter states, "MP III failed to expressly inform Mr. Freiman that PBB's claims had been released, while . . . providing him a lengthy discourse of the status of [MP III's] affirmative claims against the Leeds Weld entities." (Id.) Schiller states that, "MP III knew that Hartford never had a contractual obligation with respect to those claims, and as of the date of the PBB/MP III release, no obligation to defend MP III against the PBB claims." (Id.)
The letter then outlines Schiller's interpretation that the settlement agreement between PBB and MP III, according to its terms, was "entered into to resolve, dismiss and release all 'claims' and 'counterclaims' between PBB and MP III." (Id.) Paragraph 7 of that settlement agreement, according to Schiller, provided for subsequent mediation and/or arbitration "solely to decide the rights of PBB and MP III in the event that any 'Lawsuit Proceeds' resulted from [MP III's affirmative claims against Leeds Weld]." (Id.) Therefore, after the date of the PBB Agreement, "there were no claims left from PBB to defend." (Id.) Mediation or arbitration would occur "only to divvy up the spoils" if MP III recovered something as third party plaintiff in its claims against Leeds Weld. (Id.)
The letter then states that, "[u]nder the circumstances, [Schiller] cannot imagine that MP III would contend it has the right to reimbursement of costs, expenses, fees or any other sums from Hartford after October 13, 2006, in connection with the PBB lawsuit." (Id.) Schiller states that he is "looking into whether MP III has submitted any requests for payment of legal fees and/or costs regarding services performed after the effective date of the PBB release," and that "Hartford does not agree that MP III is entitled to any payments in connection with the 'defense' or 'indemnity' with respect to the PBB lawsuit after October 13, 2006." (Id.)
The letter concludes with Schiller's request for Cotler to "please confirm that MP III does not intend to seek payment for any such fees or costs with respect to the PBB lawsuit now or in the future," and a statement that, "given the settlement in [Delaware], what could possibly be left other than miscellaneous [Texas] lawsuit-related bills?" (Id.)
Cotler, on behalf of MP III, responded to the February 21st Letter by voicemail on February 25, 2008, and by separate letters on February 28 and March 3, 2008. In his voicemail, Cotler states:
I'm back in the office and I have looked at the agreement. You guys in your  settlement agreement with us agreed to defend the Bank's claims against us even after you had in your possession the agreement with Pennsylvania Business Bank. So, that's an important fact that would probably be a problem for you guys. Moreover, I just got back and I am looking over the [PBB Agreement] again and I think there is a very good argument that the underlying claims still exist and that what [PBB] was agreeing to was only that the damages would be limited to what we got from Leeds Weld. In fact, in the Whereas clause it talks about how [PBB] would bring [its] claims in arbitration and mediation first and that's why they are set forth in the Whereas clause. More importantly, you guys agreed to defend those very claims even after the agreement with [PBB] was given to [former Hartford Counsel,] Grugan. (Cotler Voicemail, Pl.'s Mot., Ex. 64, Doc. No. 69-14.)
Three days later, in a February 28th letter, Cotler states that "the agreement with the Bank never specifically provides that the Bank's damages and recoveries are limited to 'Leeds Weld monies'. . . . A fair readingof the agreement may be that the Bank only agreed to transfer all of its claims against MP III, Morse and Dalglish, for which there is insurance coverage, from the trial court to arbitration." (Cotler Feb. 28 Letter, Pl.'s Mot., Ex. 86, Doc. No. 69-7.) Furthermore, "there is nothing in that agreement that specifically precludes the Bank from getting monies beyond the 'Leeds Weld proceeds' should the Bank prevail on its claims for which there is insurance coverage." (Id.)
Cotler followed up this letter with another one sent three days later on March 3, 2008, in which he informed Schiller that MP III is appealing Judge Bernstein's verdict against its affirmative claims against Leeds Weld. (Pl.'s Mot., Ex. 11, Doc. No. 69-4.) The letter continued by stating that, in arbitration, PBB "may argue" that the PBB Agreement does not preclude it from seeking monetary damages beyond the amount of the Leeds Weld proceeds. (Id.) The letter next states that it "confirms that . . .if Pennsylvania Business Bank pursues any of its claims in arbitration or otherwise against your insureds, the very claims that Hartford concedes that it must defend and indemnify, we will expect the Hartford to pay for that defense and for any settlement or verdict or judgment." (Id.) The letter goes on to state that the agreement between MP III and the Bank "does not extinguish Hartford's legal obligation to not only defend against the Bank's claims in arbitration or other venue, but it also does not extinguish the Hartford's legal obligation to pay any amount paid to the Bank in settlement or verdict." (Id.) Cotler then notes that MP III was not told of a $10 million umbrella policy until after MP III's agreement with the Bank, and concludes by stating that Hartford "expressly agreed to defend and cover the Bank's claims in a written contract even after we gave the Agreement with the Bank to counsel for the Hartford." (Id.)
The next day, March 4, 2008, Schiller responded by letter to Cotler. ("March 4th Letter," Pl.'s Mot., Ex. 12, Doc. No. 69-4.) Schiller's letter reiterated Hartford's position that MP III's appeal of Judge Bernstein's verdict against it on its affirmative claims against Leeds Weld "does not in any manner implicate The Hartford's coverage to MP III and, accordingly, The Hartford is not responsible for paying for that appeal." (Id.) Turning to MP III's argument that the Hartford had a duty to defend it against PBB, Schiller states that, "[i]n the event the PBB brings a claim or attempts to resuscitate the released claim against MP III, The Hartford will review the claim properly in accordance with the policies of Pennsylvania law. If a duty of defense is owed, a defense will be provided. If such a hypothetical claim ultimately results in damages covered under the policy, the Hartford will cover those damages." (Id.) Schiller continues by stating, "The Hartford does not agree that it is in any manner bound to defend or indemnify MP III for such a hypothetical claim when it is not being pursued now and, we believe, it could not be pursued. The Hartford will, however, of course review any such claim that you should forward." (Id.)
Schiller then states in this March 4th Letter that he is "troubled" to the extent that Cotler's letter "continues to make the argument in PBB's favor that PBB should or could have a claim against MP III when [he] believe[s] a fair reading of the PBB settlement agreement under Pennsylvania law compels the conclusion that PBB released all claims." (Id.) The only reasonable way to construe the Whereas clauses preceding the release language in the PBB agreement, Schiller states, is to interpret it as representing that "PBB and MP III were reserving their rights to arbitrate as to the 'Lawsuit Proceeds' alone." (Id.) "More important," Schiller states, "it is clearly MP III's obligation to enforce -- and argue for the enforcement of -- the PBB settlement agreement in the way that maximizes protection to MP III." (Id.)
D. Hartford's Reinsurance Report
Approximately seven weeks after the March 4th letter, on April 24, 2008, Hartford filed a reinsurance report updating its own insurer as to the status of the PBB matter. The report, which MP III obtained during later discovery, states:
We have now had the opportunity to review the settlement agreement that PBB and [MP III] entered into resulting in the dismissal of the PBB lawsuit. The settlement agreement releases all claims that PBB had against [MP III], except to the extent that [MP III] may recover damages from a third party. In that event, PBB may make a claim against [MP III] for allocation of such recovery. (Pl.'s Mot., Ex. S, Doc. No. 69-14.)
The report goes on to state:
The effect of the release is that there is no longer a viable damages claim against [PBB] asserted by MP III which falls within the scope of the coverage issued. We have communicated to [MP III] our position that not only does Hartford have no duty to pay for any amounts that [MP III] may owe to PBB by virtue of the release terms, but that Hartford has no duty to defend the existing claim if it is pursued. The release was effective October 20, 2006 and therefore our duty to defend ended as of the release date. (Id.)
The report states finally that Hartford has "placed this file into inactive mode as we believe Hartford's contractual obligations have been eliminated by the parties' release. It is possible that [MP III] will take issue with Hartford's position, but we are confident that our conclusion is correct." (Id.)
E. The Reed Smith Invoices
Two weeks after the initial flurry of letters back and forth between Schiller and Cotler, on March 18, 2008, Reed Smith invoiced Hartford for professional services related to MP III's defense. Later, on May 23, 2008, in response to an email request, Cotler sent a letter to Warren Freiman, outlining four entries on that invoice which were "expressly and completely devoted to issues in representing your insured, MP III, against claims made and still being made by the Pennsylvania Business Bank." (Pl.'s Mot., Ex. BB, Doc. No. 69-16.) The entries identified by Cotler all fall within January 22 and February 26, 2008, during the period after the agreement severing the claims from court, but before mediation had been demanded by PBB. (Id.) Cotler's letter states, "[PBB's] claims have not been extinguished. Rather, in a best case scenario, Pennsylvania Business Bank still possesses those claims but its damages have a ceiling of any monies that MP III receives [from Leeds Weld]." (Id.) Cotler then turns his attention to MP III's affirmative claims against Leeds Weld and concludes his letter by stating that "Hartford is again breaching its insurance contract incurring bad faith liability by not paying for [MP III's] appeal of the Leeds Weld case and its prosecution . . . . " (Id.)
MP III asserts that Hartford did not pay this invoice. It provides two pieces of evidence to support this assertion: (1) the October 25, 2010 Declaration of MP III's own attorney, Cotler, where he states that Reed Smith's accounting records indicate the invoice was not paid, (Pl.'s Mot., Ex. CC, Doc. No. 69-16), and (2) MP III's Amended Responses to Hartford's Requests for Admission from the Pennsylvania state court declaratory judgment action, discussed below, where MP III denies Hartford's request to admit that the invoices were paid. (Pl.'s Mot., Ex. Z, Doc. No. 69-15.) In response, Hartford denies MP III's averment that Hartford failed to reimburse the invoice and points to seven different places where MP III represented to the state court, this Court, and the Third Circuit, that Hartford paid all defense and indemnity expenses related to PBB's claims. (Def.'s Resp. Opp'n Pl.'s Purported Statement Undisputed Facts, Doc. No. 71-1 at 15.)
Although the parties dispute this issue, as we explain in our Discussion, below, this factual dissidence does ...