The opinion of the court was delivered by: GOETTEL
The plaintiff brought this Rule 23(b)(3) class action against defendants Deloitte Haskins & Sells ("DH&S"), Yarwood Vane and & Co. ("Yarwood Vane"), and Leo Bromberg on behalf of a class of all those who purchased American Depository Receipts (ADRs) in Ferrovanadium Corporation N.L. between January 1, 1980, and February 10, 1981.
The complaint alleges violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982) ("Securities Exchange Act"), and Rule 10(b)(5) promulgated thereunder, 17 C.F.R. § 240.10(b)-(5) (1984).
Before the court are several motions. Yarwood Vane moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. All the defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted or, in the alternative, pursuant to Fed. R. Civ. P. 9(b), for failure to plead fraud with particularity.For the reasons stated below, the motions are granted in part and denied in part.
Ferrovanadium Corporation N.L. ("Ferrovanadium" or "the company") is an Australian corporation with its principal place of business in Perth, Western Australia. Allegedly, at all times relevant to this litigation, it was principally engaged in exploring for mineral resources in Western Australia. (Complaint P5.) In 1980, Ferrovanadium purchased a working interest in Texas gas wells through a wholly owned California subsidiary.
In early 1979, Leo Bromberg, a California attorney, responded to a Ferrovanadium advertisement in the Wall Street Journal which sought to attract United States companies as joint venture partners. On May 21, 1979, apparently after negotiations and a visit by Bromberg to Australia, Bromberg wrote Peter Briggs, Ferrovanadium's chairman. Bromberg's letter confirmed his understanding that Ferrovanadium was retaining him to qualify its securities in the United States under the Securities Exchange Act. The plaintiff alleges that Bromberg served as Ferrovanadium's attorney, agent and director of public relations in the United States. (Complaint PP9 & 16.) The plaintiff further alleges that in exchange for substantial fees and a stock interest in Ferrovanadium, Bromberg undertook to see that Ferrovanadium complied with United States filing and disclosure requirements. (Complaint PP9, 16 & 59.)
By letter dated July 31, 1979, Ferrovanadium advised its auditors, Yarwood Vane, that it intended to register its securities in the United States pursuant to the Securities Exchange Act. In 1979, "Yarwood Vane & Co." was a name employed by an Australian partnership of chartered accountants. For many years, Yarwood Vane maintained a correspondent relationship with the London firm of Deloitte, Plender, Griffiths & Co. and the United States firm of Haskins & Sells, inter alia, referring matters to and receiving matters from them. On July 1, 1975, Yarwood Vane received the right to use the name Deloitte Haskins & Sells from the Deloitte/Haskins Administrative Committee, an organization composed of members of the British and United States firms. The agreement between Yarwood Vane and the Administrative Committee formalized the long-standing correpondent relationship between the firms. Between 1975 and September 1, 1979, the Australian firm conducted its practice under two names. It performed engagements on behalf of Australian clients -- like Ferrovanadium -- under the name Yarwood Vane & Co. and performed work referred to it by its foreign affiliates under the name Deloitte Haskins & Sells. On September 1, 1979, the International Executive Committee entered into a new agreement with the Australian firm. The complaint alleges that in 1979, Deloitte Haskins & Sells and Yarwood Vane merged. Beginning December 1, 1979, Yarwood Vane conducted its entire practice under the name Deloitte Haskins & Sells. By 1979, the United States firm had also adopted the name Deloitte Haskins & Sells.
Ferrovanadium's July 31st letter requested that Yarwood Vane liaise with the Los Angeles DH&S office and either confirm that its accounts were acceptable to the Securities Exchange Commission (the "SEC") or inform Ferrovanadium of the most convenient means of conforming the accounts. On August 2, Robert Devenish, the Yarwood Vane partner in charge of the Ferrovanadium account, forwarded the audited 1978 and unaudited 1979 financial statements to the Los Angeles office. Between August 2 and August 16, the Los Angeles, New York, and Australian DH&S partners had several communications concerning the proposed registration. In one, Devenish revealed his doubts about the entire registration. In another, Thomas Shephard, the Los Angeles partner, stated that he had discussed the registration with Bromberg. On August 16, the New York partners, Kenneth Allen and Edward Darcey, expressed their willingness to aid with the registration, but expressed reluctance to go forward until Devenish had eased his doubts regarding Ferrovanadium and its registration.
Meanwhile, on August 14, 1979, Devenish signed the Ferrovanadium audit for the fiscal year ending June 30, 1979, and forwarded that audit to the company. Two days later, Bromberg, who allegedly prepared and/or reviewed Ferravanadium's Form 10, filed that registration statement with the SEC. The Form 10 contained the 1979 Ferrovanadium audit.
The plaintiff alleges that the registration was materially false and misleading in several respects. The plaintiff alleges that the 1979 audit was misleading in that it did not comply with United States generally accepted accounting practices ("GAAP") and nowhere revealed its noncompliance. Consequently, the plaintiff asserts, the audit overstated Ferrovanadium's equity and understated its expenses. (Complaint P25.) In addition, the plaintiff alleges that the Form 10 contained numerous false and misleading statements regarding Ferrovanadium's mining prospects. (Complaint P26.)
The complaint alleges that Yarwood Vane consented to and permitted the inclusion of its 1979 audit in the SEC filing. (Complaint P46.) The plaintiff further claims that although DH&S and Yarwood Vane knew of the Form 10 filing, and although they discussed taking corrective action, they failed to correct or reveal the alleged misrepresentations and omissions.
The Ferrovanadium registration automatically became effective 60 days from the filing date. On November 8, 1979, the SEC wrote Ferrovanadium commenting on the numerous deficiencies in the Form 10 and in the financial statement therein.
On or about December 14, 1979, Irving Trust Company filed a registration statement on Form S-12 pursuant to Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e (1982). The Form S-12 was a prerequisite to the registration and issuance of Ferrovanadium ADRs in the United States. "An ADR is a certificate, denominated in shares, representing proof of ownership of foreign securities on deposit with a foreign depository bank affiliated with an American bank." (Complaint P5n.) Trading in Ferrovanadium ADRs allegedly commenced on the United States over-the-counter market in January, 1980. Complaint P17.
On or about May 9, 1980, Morgan Guaranty Trust Company filed a similar Form S-12. Like Irving Trust's filing, that form included Ferrovanadium's 1979 Annual Report to Shareholders and an "Exploration and Activity Report." The plaintiff alleges that the "Exploration and Activity Report" contained materially false and misleading statements regarding the company's mining and overall business prospects. (Complaint P29.)
In 1980, the Australian DH&S partners audited the Ferrovanadium accounts. The Australian partners requested and received assistance with that audit from the United States partners. Specifically, the Denver and Los Angeles DH&S offices assisted with the audit of Ferrovanadium's wholly owned California subsidiary. On November 12, 1980, Devenish signed and issued the audit for the fiscal year ending June 30, 1980 ("the 1980 audit"). The plaintiff claims that when Devenish signed the audit, the accountants knew that Ferrovanadium securities were trading in the United States and that Ferovanadium was required to periodically file financial statements with the SEC.The defendants dispute this allegation. The complaint alleges that on or about November 11, 1980, Ferrovanadium disseminated its 1980 Annual Report to shareholders and the investing public. (Complaint P30.) On January 21, 1981, a Form 10-K updating Ferrovanadium's registration was filed with the SEC. Both the annual report and the Form 10-K incorporated the 1980 audit.
The plaintiff alleges that the 1980 Annual Report and the 1981 Form 10-K were false and misleading in much the same way at the original Form 10, i.e., the financial statements therein did not comply with United States GAAP and both documents contained false and misleading statements about Ferrovanadium's mining and business prospects.
The plaintiff purchased 2,000 Ferrovanadium ADRs on January 6, 1981. On February 10, 1981, the SEC suspended trading in Ferrovanadium ADRs. (Complaint P65.) A consent order was entered and trading resumed on April 6, 1981. (Complaint P66.) On September 3, 1982, the plaintiff brought suit on behalf of all persons who purchased Ferrovanadium ADRs between January 1, 1980 and February 10, 1981. (Complaint P10(b).)
The complaint asserts claims against Bromberg, Yarwood Vane, and DH&S. The complaint alleges primary violations of Rule 10b-5 by Bromberg in relation to the 1979 and 1980 Annual Reports, the Form 10, the Morgan Guarantee Form S-12, and the 1980 Form 10-K. (Complaint P61.) It also asserts claims against Yarwood Vane for issuing an allegedly misleading 1979 audit (Complaint PP46 50) and for aiding and abetting the issuance of materially false and misleading statements in the Form 10. (Complaint P51.) The plaintiff similarly charges DH&S with regard to the 1980 Annual Report and Form 10-K. (Complaint PP55-58.)
II. The Parties To This Action
The complaint in this action names three defendants: "Deloitte Haskins & Sells; Yarwood Vane & Co.; and Leo Bromberg." Yarwood Vane & Co. is the Australian firm of chartered accountants that performed Ferrovanadium's 1979 audit. Yarwood Vane later assumed the name "Deloitte Haskins & Sells." However, the identify of the "Deloitte Haskins & Sells" firm sued by plaintiff is unclear.
The plaintiff considers DH&S a single worldwide entity.
Indeed, the complaint asserts that Yarwood Vane merged with this DH&S entity. (Complaint P7.) This is simply not the case. (For further discussion, see infra pp. 15-21.) There is no single worldwide DH&S firm. Rather, an association known as DH&S International is the only worldwide DH&S entity. DH&S International is an organization composed of a large number of affiliated accounting firms. Its offices are at 1114 Avenue of the Americas. Nowhere do the plaintiff's papers indicate that he wished to sue this umbrella organization.
A paragraph by paragraph examination of the complaint reveals that the references to defendant "Deloitte Haskins & Sells" refer in two instances to the Australian accounting firm that succeeded to the local accounting work of Yarwood Vane, and in another instance to the United States DH&S partnership.
Paragraphs 53 through 58 of the complaint describe DH&S as Ferrovanadium's independent auditor. In addition, paragraph 53 alleges the DH&S performed the 1980 Ferrovanadium audit. Affidavits provided the Court clearly indicate that the Australian firm with the DH&S name ("DH&S (Aus.)") served as Ferrovanadium independent auditor and issued the 1980 audit. We thus deem paragraphs 53 through 58 to assert claims against DH&S (Aus.) in connection with the 1980 audit.
Paragraph 52 is another matter. It asserts a claim against DH&S, rather than Yarwood Vane, for aiding and abetting the issuance of materially false and misleading statements in the 1979 audit, the 1979 Form 10, the 1979 Annual Report, and the May 1981 Form S-12. In this context, we read DH&S to refer to the United States accounting firm ("DH&S (U.S.)"). The plaintiff's memoranda refer specifically to the United States firm's actions relative to the 1979 audit and the associated filings. See, e.g., Plaintiff's Supplemental Memorandum at 3-12 (detailing communications between the United States and Australian affiliates regarding the 1979 audit and describing work performed by the United States affiliate on the 1980 audit).
Although we forego a literal interpretation of the pleadings in this regard, our interpretation accords with Fed. R. Civ. P. 9(f)'s requirement that all pleadings be construed to do substantial justice.Rule 8(f) reflects the basic philosophy of the federal rules, that they be construed to ensure the just, speedy, and inexpensive determination of every action. Fed. R. Civ. P. 1. The federal rules therefore instruct us "to make a determined effort to understand what a pleading is attempting to set forth and to construe the pleading in [a pleader's] favor whenever justice so requires." C. Wright & A. Miller, Federal Practice and Procedure § 1286 (1969). Our decision to construe this pleading as asserting claims against both the Australian and United States DH&S firms follows this dictate.
A. Motion to Dismiss for Lack of Personal Jurisdiction
Defendant Yarwood Vane moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. Although the defendant's original notice of motion and supporting memorandum named only Yarwood Vane, precisely which parties are the subject of this motion is again unclear. Since the defendant filed its motion, it has become clear that a question also exists regarding this Court's personal jurisdiction over DH&S (Aus.), which succeeded to Yarwood Vane's local business in December 1979. Both of the named accountant defendants dispute the Court's jurisdiction over the successor firm. In fact, their joint counsel separately challenges the Court's jurisdiction over the two Australian entities (DH&S (Aus.) and Yarwood Vane). In these circumstances, logic dictates that we treat this as a motion to dismiss claims against both Yarwood Vane and DH&S (Aus.) for lack of personal jurisdiction.
In deciding this pretrial motion to dismiss for lack of personal jurisdiction, we have considerable procedural leeway. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981), cert. denied, 465 U.S. 1007, 79 L. Ed. 2d 233, 104 S. Ct. 1001 (1984). In the exercise of this flexibility, we permitted considerable discovery on the jurisdictional issue. Both parties have proferred numerous affidavits, documents, and depositions to support their positions. However, we forewent an evidentiary hearing. In order to defeat the motion to dismiss, the plaintiff must make "a prima facie showing of jurisdiction through its own affidavits and supporting materials notwithstanding any controverting presentation" by the defendant.
Id. We believe the plaintiff has made such a showing only with regard to DH&S (Aus.)'s actions respecting the 1980 Ferrovanadium audit.
Section 27 of the Securities Exchange Act
provides the statutory basis for the exercise of personal jurisdiction in securities cases.Section 27 extends the court's jurisdiction to the limits of due process. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1340 (2d Cir. 1972) (Friendly, J.). Sections 35-37 of the Restatement (Second) of Conflict of Laws (1971) ("Restatement") supply the applicable jurisdictional standard. Id. These sections contain three distinct bases for the assertion of jurisdiction over a foreign defendant in a securities action. A court may exercise personal jurisdiction over a foreign defendant who (1) does business in the forum (Restatement § 35); (2) does an act in the forum (Restatement § 36); or (3) causes an effect in the forum by an act done elsewhere (Restatement § 37).
Although the Restatement successfully distills the Supreme Court's edicts regarding personal jurisdiction into a set of helpful guidelines, see Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 1487, 79 L. Ed. 2d 804 (1984) (citing Restatement § 37), the Supreme Court's pronouncements continue to weigh heavily in this area. The Court has stated that, to survive due process analysis, the exercise of jurisdiction over a defendant must "not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)).A "[d]efendant's conduct and connection with the forum state [should be] such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). The Court's most recent decisions reiterate these principles, and, in addition, emphasize "the relationship among the defendant, the forum, and the litigation." Calder v. Jones, supra, at 1486; Keeton v. Hustler Magazine, 465 U.S. 770, 104 S. Ct. 1473, 1478, 79 L. Ed. 2d 790 (1984) (both quoting Shaffer v. Heitner, 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977).
The plaintiff argues that Restatement §§ 35, 36 and 37 each provide an adequate basis for the exercise of personal jurisdiction over Yarwood Vane and DH&S (Aus.). We find that only Restatement § 37 provides a basis for the exercise of jurisdiction and then only in very limited circumstances.
1. Doing Business" Restatement § 35
In pertinent part, Restatement § 35 reads:
(1) A state has power to exercise judicial jurisdiction over an individual who does business in the state with respect to causes of action arising from the business he does in the state.
(3) A state has power to exercise judicial jurisdiction over an individual who does business in the state with respect to causes of action that do not arise from the business done in the state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.
Restatement (Second) of Conflict of Laws § 35 (1971). Since neither Yarwood Vane, nor its successor, DH&S (Aus.) does any substantial or continuous business in the United States, the plaintiff attempts to attribute DH&S (U.S.)'s forum-related contacts to Yarwood Vane and DH&S (Aus.). First, the plaintiff argues that DH&S (Aus.) is an agent of DH&S (U.S.). This agency relationship, he argues, provides a basis for concluding that Yarwood Vane and DH&S (Aus.) did or do business in the United States and that the cause of action arose from that business. Second, the plaintiff might argue that DH&S (Aus.) is a mere department or agency of DH&S (U.S.).
Both arguments fail. Thus, the plaintiff may not premise jurisdiction over Yarwood Vane or DH&S (Aus.) on Restatement § 35.
Before analyzing the merits of these arguments, we briefly consider the relationship between the Australian and American firms. This discussion supplements the "Background" section above and facilitates an understanding of our conclusion regarding the plaintiff's doing business argument.
As noted above, the July 1, 1975, agreement between Yarwood Vane and the Deloitte/Haskins Administrative Committee formalized a long-standing correspondent relationship. The agreement established an "Executive Committee" composed of the Administrative Committee and a Yarwood Vane partner. The Executive Committee received the right to approve all changes in the partnership agreement, to approve all partnership decisions, and to demand the resignation or appointment of any partner. The parties also agreed to use their best efforts to refer business to each other and to take on business referred to them by each other. Yarwood Vane agreed to pay 10% of all gross fees paid to it as a result of referrals from another DH&S firm to the referring firm. They further agreed to abide by certain professional and ethical standards established by the Executive Committee when doing work referred by another DH&S affiliate. The firm retained the right to direct its own day-to-day operations, to choose its Australian clients and to direct its own administration, accounting, and profit distribution.The agreement did not provide for profit sharing between any of the affiliated firms.
Between 1975 and September 1, 1979, the Australian firm conducted its practice under two names. It performed engagements on behalf of Australian clients like Ferrovanadium under the name "Yarwood Vane & Co." and performed work referred pursuant to the 1975 agreement under the name "Deloitte Haskins & Sells." Pursuant to the 1975 agreement, four British, Haskins & Sells partners became partners in the Australian firm registered under the name of Deloitte Haskins & Sells. They did not become partners in Yarwood Vane.
By agreement dated July 1, 1976, firms throughout the world which maintained correspondent relationships with the Deloitte/Haskins group entered into an international practice agreement. Among other things, this agreement established an International Executive Committee composed of one permanent representative from Deloitte, one permanent representative from Haskins & Sells and three other elected representatives. The International Executive Committee supplanted the Administrative Committee.
On September 1, 1979, the International Executive Committee entered into a new agreement with the Australian firm. Pursuant to that agreement the four English partners resigned from the Australian firm. The International Executive Committee also relinquished the right to veto the Australian firm's partnership decisions. The agreement also limited its veto to matters affecting the relationship between the various affiliated firms. The 1975 and 1979 agreements were similar in most other respects.
Beginning December 1, 1979, the Australian firm began conducting its entire practice under the name "Deloitte Haskins & Sells." It continues to do so.DH&S (Aus.) has no office in the United States and has no partners or employees regularly residing or conducting the firm's business here. The firm does not solicit business in the United States, maintains no books, records, or bank accounts in the United States, and is not licensed to do business in any state.
The plaintiff asserts that since 1975, when Yarwood Vane first contracted to use the DH&S name, Yarwood Vane and later DH&S (Aus.) have been agents of DH&S (U.S.). The plaintiff argues that this agency relationship justifies the exercise of jurisdiction over Yarwood Vane. He thereby seeks to apply a theory by which courts generally establish jurisdiction over a nonresident principal by virtue of the actions of its resident agent. Product Promotions v. Cousteau, 495 F.2d 483, 492 (5th Cir. 1974). According to the plaintiff, this Court should attribute the acts of a resident principal to a nonresident agent. While the plaintiff is not the first to suggest such an approach, see Walker v. Newgent, 583 F.2d 163 (5th Cir. 1978), cert. denied, 441 U.S. 906, 60 L. Ed. 2d 374, 99 S. Ct. 1994 (1979); Blount v. Peerless Chemicals (P.R.) Inc., 316 F.2d 695 (2d Cir.), cert. denied, 375 U.S. 831, 11 L. Ed. 2d 62, 84 S. Ct. 76 (1963); Grove Valve & Regulator Co. v. Iranian Oil Services, Ltd., 87 F.R.D. 93, 96 (S.D.N.Y. 1980), we know of no court to actually apply this theory. Nor are we inclined to, largely because we do not accept the application of the agency theory in reverse.
Courts which exercise jurisdiction over a principal by virtue of an agent's acts typically justify their decision by noting that, were it not for those acts, the principal would have acted himself. Gelfand v. Tanner Motor Co., 385 F.2d 116 (2d Cir. 1967). However, the rationale makes little sense in reverse. While an agent functions at the principal's behest, the principal exists independent of the agent. It is difficult to see how an agent with no control over its principal can be held accountable for the principal's actions. We thus agree with Judge Weinfeld who stated in Grove Valve & Regulator Co. v. Iranian Oil Services, Ltd., supra: "While it is possible to find jurisdiction over a principal based on the acts in New York of its agent, . . . this theory of jurisdiction is completely inapposite here where it is the alleged principal who does business in New York and the agent who does not." Id. at 96.
Moreover, the record is devoid of evidence sufficient to make out a prima facie case that either DH&S (Aus.) or Yarwood Vane was an agent of DH&S (U.S.) in this or any other matter. Throughout its relationship with the DH&S International, the Australian firm has maintained control of its day-to-day operations. It chooses its own Australian clients, and its dealings with those clients -- one of whom was Ferrovanadium -- are entirely autonomous. While the Australian firm shares referral fees with other DH&S firms, it does not share profits or losses with those firms. Indeed, the referral arrangements are mutually beneficial. A wholly owned subsidiary that continues to control its day-to-day operations cannot be an "agent" for jurisdictional purposes. Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9th Cir.), cert. denied, 449 U.S. 1062, 66 L. Ed. 2d 604, 101 S. Ct. 785 (1980). It follows that a firm that maintains control of its profits and losses and of its day-to-day operations cannot be generally labelled an agent for jurisdictional purposes. Nor, does the record indicate that Yarwood Vane was the United States firm's agent with regard to Ferrovanadium's 1979 audit or securities filing.Neither DH&S (Aus.) nor Yarwood Vane was ever the United States firm's agent.
Absent an agency theory, a court may not ascribe DH&S (U.S.)'s actions to Yarwood Vane or DH&S (Aus.) unless the latter is shown to be a mere department or agency of the former.
Bialek v. Racal-Milgo, Inc., 545 F. Supp. 25, 31-32 (S.D.N.Y. 1982); Blount v. Peerless Chemicals (P.R.) Inc., 216 F. Supp. 612, 615 (E.D.N.Y. 1962), aff'd, 316 F.2d 695 (2d Cir.), cert. denied, 375 U.S. 831, 11 L. Ed. 2d 62, 84 S. Ct. 76 (1963). A subsidiary relationship or common stock ownership is a threshold minimum to such a finding.Grove Valve & Regulator Co., supra, 87 F.R.D. at 95. The exhibits before the Court rebut any allegation that Yarwood Vane was a DH&S (U.S.) subsidiary, that the two were owned in common, or that one was a department or agency of the other.
Given the courts' hesitancy to characterize one firm as another's alter ego for jurisdictional purposes, Walker v. Newgent, 583 F.2d 163 (5th Cir. 1978) ("A subsidiary corporation will not be regarded as the alter ego of its parent because of stock ownership, a duplication of some or all of the directors or officers, or an exercise of control that stock ownership gives to stockholders.") (quoting Gentry v. Credit Plan Corp., 528 S.W.2d 571, 573 (Tex. 1975)), it would defy logic to pin such a label on Yarwood Vane.
The 1979 agreement established a cooperative venture between independent economic entities. By signing that agreement, Yarwood Vane could not have expected to submit itself to the jurisdiction of the United States courts. Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958) (The defendant must perform some act by which it purposefully avails itself of the privilege of conducting activities within the forum.). To find that agreement sufficient to support ...