UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RONALD E. PECK, )
)
Plaintiff, )
)
v. ) Civil Case No. 13-00073 (RJL)
)
SELEX SYSTEMS INTEGRATION, INC. )
et al., )
)
Defendants. ) F I L E D
SEP ' 8 2017
..Dl trl t&B krll icy
MEMORANDUM OPINION C[ii:ii; ilorsthes[)|s(ir|ct o?%oluinb|a

 

(September §, 2017) [Dkts. ## 65, 66, 67]

Ronald Peck (“plaintiff” or “Peck”) has sued SELEX Systems Integration, lnc.
(“Selex”) and SELEX Sistemi Integrati, Inc. Key Employee Deferred Compensation Plan
(the “Plan”) for benefits and compensation that he alleges he accrued during his
employment as an executive for Selex. Counts I and III allege state law breach of` contract
claims seeking severance pay and relocation expenses, Whereas Count II seeks deferred
compensation benefits from the Plan under the Employee Retirement Income Security Act
(“ERISA”). Am. Compl. [Dkt. # 33]. In March 2016, I granted summary judgment to the
defendants on Count II of the Amended Complaint. See 03/24/ 16 Mem. Op. and Order
[Dkts. ## 52, 53].

In June 2017, I held a bench trial and heard oral arguments on Counts I and III of

the Amended Complaint. After the trial, the parties presented proposed findings of facts

and conclusions of law on Counts I and III. [Dkts. # 66, 67] In July, plaintiff moved the

Court to reconsider its March 2016 decision granting summary judgment to the defendants
on Count ll. [Dkt. # 65] Upon careful consideration of the record, the proposed findings
of fact, and the plaintiff`s motion to reconsider, l find that l\/Ir. Peck isn_ot entitled to
severance pay under the terms of his at-Will employment agreement, but is entitled to the
closing costs from the sale of his home under the relocation agreement he entered With
Selex. As a result, l Will enter judgment for Selex on Count l and judgment for plaintiff
on Count lll. ln addition, l find that plaintiff has not met the burden of showing that justice
requires me to reconsider my earlier judgment for defendants on Count ll and Will therefore

DENY his l\/Iotion for Reconsideration of Count lI.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Selex is a company based in Overland Park, Kansas, that manufactures
aviation navigation, landing, and surveillance systems. 03/24/16 Mem. Op. at 2; 06/02/17
Trial Tr. at 43:15-25 [Dkt. # 62]. Plaintiff Ronald Peck is an engineer Who Worked for
SeleX in both its Kansas and Washington, D.C. offices from 1997 until 20l2. 03/24/16
Mem. Op. at 2; 06/01/17 Trial Tr. at 64113-17, 94:21-95:5 [Dkt. # 61]. In September 2012,
Selex terminated Peck, Selex’s then-Viee President of Business Development, after he
declined to return to the Overland Park, Kansas office to serve as the Vice President of
Quality Control and Business lmprovement. Pl.’s Trial Ex. 18, lO/Ol/ l2 Letter from Selex
to Peck (“Termination Letter”).

After his termination, Peck sued Selex for benefits he alleges he accrued during his

employment ln the operative Amended Complaint he filed in this Court, Peck seeks:

(l) nine months of severance pay totaling $151,549 he claims he Was entitled to under the
company’s severance policy; (2) $57,()20 in deferred compensation he claims he accrued
under the company’s “top hat” deferred compensation plan, and to Which he claims he is
entitled under ERlSA; and (3) a sales commission of $25,195 paid on the sale of his
Overland Park, Kansas home. As mentioned above, l already granted summary judgment
to defendants on Peck’s claim for deferred compensation under ERISA, on the grounds
that the committee tasked With administering the deferred compensation plan reasonably
construed the plan’s terms When it determined that he had been terminated for cause. See
03/24/16 Mem. Op. at 9-12.

On June l and 2, l held a bench trial Where l heard evidence and testimony from the
parties on Counts l and lll of the Amended Complaint. ln addition to l\/lr. Peck himself, l
heard Witness testimony from Gary Stevens, Selex Chief Finaneial Officer, and Mike
Warner, Selex Chief Executive Officer at the time of Peck’s termination. l heard closing
arguments on June 5 and received proposed findings of fact and conclusions of law on July

ll. On July ll, the plaintiff also submitted his motion to reconsider Count ll of the

Amended Complaint.

II. FINDINGS OF FACT
After carefully considering the record and the parties’ proposed findings of fact, l
find that the following facts have been established by a preponderance of the evidence.
SELEX Systems lntegration, lnc. is a company With headquarters in Overland Park,

Kansas, that manufactures aviation navigation, landing, and surveillance systems.

06/02/17 Trial Tr. at 43:15-25, 44:18-20. Plaintiff Peck Worked at Selex from April 1997
until September 2012. 06/01/17 Trial Tr. at 65:7-8, 85:14-20.

ln March 2008, Peck became Selex’s Vice President of Business Development,
Where he Was responsible for Selex’s efforts to expand its market in the United States. Id.
at 65:20-23, 66:22-67:3. As part ofthose efforts, Selex opened a Washington, D.C. office
in August 2010 to ensure that Selex employees Would be closer to the Federal Aviation
Administration and other potential clients in the U.S. market. Id. at 67:6-17, 6811-2. At
that time, Peck formally transferred his Work to the Washington, D.C. office from the
Kansas office. Pl.’s Trial Ex. 11, Peck Change of Status Form. From August 2010 until
October 2011, Peck commuted from Kansas to the Washington office on a Weekly basis.
06/01/17 Trial Tr. at 96:22-97:8.
A. February 2012 Relocation Agreement

ln October 2011, Peck and his Wife moved to the Washington, D.C. area, and they
signed a lease for an Alexandria townhome in December 2011. Id. at 97:19-98:18; Defs.’
Trial Ex. 14, Peck Lease.

On February 29, 2012, Peck entered into a formal relocation agreement With Selex,
With an effective date of February 6, in Which Selex agreed to compensate Peck for specific
costs that he had incurred in his move from Overland Park to Washington, D.C. Pl.’s Trial
Ex. 3, 02/06/ 12 Relocation Agreement (“Relocation Agreement”). ln the letter, Selex
specifically agreed: (1) to pay a cost of living salary increase of 37%; (2) to “pay a
maximum $6,900.00 for moving [Peck’s] household goods”; (3) to “pay costs associated

With the sale of [Peck’s] primary residence in Overland Park”; (4) to “reimburse final travel

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expenses to [Peck’s] new location”; and (5) to “pay closing costs on the purchase of
[Peck’s] primary residence in Virginia.” Icz’. at 1. However, the agreement stated that, “[a]s
a condition to receiving relocation benefits, you must remain employed by SELEX for at
least two (2) years.” Id. at 2. The agreement further stated that if Peck voluntarily left
Selex within one year of relocation, he would have to repay 100% of all relocation
expenses, and if he left between the first and second year, he would have to repay 50% of
all relocation expenses Ia’.

In June 2012, Peck and his wife placed their Kansas home on the market; they
entered into an agreement to sell the house in July 2012, and closed the sale on September
28, 2012. Pl.’s Trial Ex. 19, July 2012 Real Estate Contract; 06/01/17 Trial Tr. at 103:3-
4. Peck paid $25,195 as a broker commission for the sale of the residence. Pl.’s Trial Ex.
25, 09/28/ 12 Settlement Statement at 2.

B. lV[r. Peck’s Termination from Selex

During his tenure as Vice President of Business Development, Peck was supervised
by then-Selex CEO Mike Warner (“Warner”). 06/02/17 Trial Tr. at 41 :23-25, 43 :9-10. On
August 20, 2012, Warner spoke with Peck by phone and expressed dissatisfaction with
Peck’s performance in his business development role. 06/01/17 Trial Tr. at 75:11-23;
06/02/17 Trial Tr. at 92:10-93:2. At a follow-up meeting on August 23, Warner asked
Peck to consider returning to Kansas to serve as Selex’s Vice President of Quality Control

and Business lmprovement. 06/01/17 Trial Tr. at 79:10-23; 06/02/17 Trial Tr. at 94:24-
96:18. On August 29, 2012, Warner sent Peck a letter stating that “SELEX can no longer

support your continuation in Washington, DC in a senior marketing capacity.” Pl.’s Trial

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Ex. 14, 08/29/ 12 Letter from Selex to Peck. The letter further stated that Peck needed to
“transfer immediately back to Overland Park to assume the position of Vice President [of]
Quality Control and Business lmprovement.” Id. On September 3, 2012, Peck replied to
Warner and formally declined to assume the new position in Overland Park. Pl.’s Trial Ex.
15, 09/03/ 12 Letter from Peck to Selex. Peck stated that he was not voluntarily terminating
his employment and was instead willing to continue in his D.C. marketing role. Id. Warner
responded soon thereafter in another letter which expressed to Peck that it would consider
his failure to assume the quality control position “a deliberate and intentional refusal to
perform the material duties and obligations of your employment” and “would constitute
‘cause”’ for termination, Pl.’s Trial Ex. 16, 09/14/12 Letter from Selex to Peck at 1-2. On
October 1, 2012, Warner sent a final letter to Peck stating that he had been terminated for
cause and was not eligible for severance or payment under the deferred compensation plan.
See Termination Letter.

At the time of Peck’s termination, Selex’s 2012 Employee Handbook stated that
Selex would provide “separation benefits” to eligible full-time employees “whose
employment terminates due to lack of work, elimination of position, or change of control.”
Pl.’s Trial Ex. 2, Selex 2012 Employee Handbook at 51 (“Employee Handbook”). The
handbook further stated that employees are not eligible for severance pay when (1) the
“employee voluntarily terminates employment”; (2) the Company “terminates employment
for Cause”; or (3) the Company “terminates employment due to retirement or death.” Icl.
Selex also had a distinct written separation policy for executives and department managers,

which stated that department managers with more than ten years of service at the company

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would be entitled to nine months of severance pay. Pl.’s Trial Ex. 1, Selex Executive and
Department Management Separation Policy (“Separation Policy”). Although the employee
handbook and the separation policy were separate documents, they were intended to be
read in conjunction with one another. 06/02/ 17 Trial Tr. at 71:19-72:7.

The evidence provided by Selex CFO Gary Stevens indicates that after Peck’s
termination, his business development responsibilities were temporarily assumed by
Warner and two consultants who were paid more for their additional responsibilities Id.
at 21:23-22:8. The business development position remained in Selex’s budget throughout
2013 and 2014, and was filled in 2014 by Tony Cortese, who has since been replaced by

Radzi Buckman. [a’. at 22:21-23116.

III. CONCLUSIONS OF LAW

A. Count I of the Amended Complaint-Contract Claim for Severance Pay

When sitting in diversity jurisdiction, the Court applies the substantive law of the
forum in which it sits-specifically, the District of Columbia. Metz v. BAE Sys. Solutions
& Servs., Inc., 744 F.3d 18, 21 (D.C. Cir. 2014) (citing Erie R.R. C0. v. Tompkl`ns, 304 U.S.
64 (1938)). Because choice-of-law principles are substantive law, the Court must also
apply the District’s choice-of-law rules. Wu v. Stomber, 750 F.3d 944, 949 (D.C. Cir.
2014). When a disputed contract fails to include a choice-of-law provision, D.C. courts

perform a “governmental interest” analysis to decide which jurisdiction’s law controls the
contract. Adolph C00rs C0. v. Truck Ins. Exch., 960 A.2d 617, 620 (D.C. 2008). Under

the “governmental interest” analysis, the Court considers the following factors: “(1) the

place of contracting; (2) the place of negotiation of the contract; (3) the place of
performance; (4) the location of the subject matter of the contract; (5) the residence and
place of business of the parties; and (6) the principal location of the insured risk.” Ia’.
Courts applying this governmental interest analysis in the context of an employment
agreement have also emphasized the location where the employee at issue performed his
or herjob responsibilities See Rane)/zj) v. NWVEX Corp., 60 F.3d 844, 850 (D.C. Cir. 1995)
(“Recognizing that NYNEX’s principal place of business is New York and that Telco was
incorporated and is headquartered in Tennessee, we nonetheless conclude that the District
of Columbia has the greatest interest in resolving Raf'ferty’s claims because he worked at
Telco’s District of Columbia consulting division at the time he was discharged.”).
Applying those factors to the facts of this case, the Court determines that D.C. law
should apply to govern Peck’s contract claims The six factors are somewhat difficult to
apply directly, given that under plaintiff` s theory, the purported contract is not a single
negotiated instrument, but rather an enforceable right to accrued benefits under his “at-
will” employment agreement with Selex. However, considering all the factors together, it
is clear that D.C. has the strongest interest in applying its laws to this dispute. Kansas
admittedly has legitimate interests in applying its own law to the dispute_Selex is a
Kansas-based company and Peck now resides again in Kansas However, Peck’s work as
Vice President of Business Development in the District of Columbia was both the subject
and performance of the contract, and his termination occurred while he was residing in
D.C. As a result, the District (in my judgment) has the greater interest in applying its own

law governing employment contracts

To demonstrate entitlement to severance pay, Peck first must show that a severance
pay agreement existed. Under D.C. law, an at-will employee has an enforceable agreement
with his employer that entitles him “to monetary compensation for benefits accrued under
those terms.” Kauffmcm v. fm ’l Bhd. Teamsters, 950 A.2d 44, 49 (D.C. 2008) (citing Nat ’Z
Rifle Ass ’n v. Az`les, 428 A.2d 816, 820 (D.C. 1981)). An at-will employment “agreement”
is different from a traditional employment contract for a fixed term. lt does not require the
parties to continue performance for any period of time, and the employee can quit or be
terminated at any time and for any reason. Icz’. at 48. Furthermore, the employer in an at-
will relationship is permitted to alter the terms of the agreement_change the policies
governing its employees_at any time, provided that the employer does so on a prospective
basis When the employer changes its policies prospectively, the employee must then
accept this “offer”_the changed terms of employment-_by continuing to work for the
employer under the new terms Id. at 48-49. The employee’s continued work constitutes
valuable consideration that renders the agreement enforceable Id. Thus, an employee who
is terminated is entitled to compensation for benefits that are accrued under the terms of
the at-will agreement, and the at-will employer may not retroactively deprive the employee
of agreed-to benefits Ia’. at 49.

Here, Selex promised to provide severance pay to eligible full-time employees
“whose employment terminate[d] due to lack of work, elimination of position, or change
of control.” Employee Handbook at 51. Under the handbook, employees are not eligible
for severance when (l) the “employee voluntarily terminates employment”; (2) the

“Company terminates employment for Cause”; or (3) the “Company terminates

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employment due to retirement or death.” Ia’. Under the separate policy schedule for senior
management, Selex stated that department managers with more than ten years of service at
the company would be entitled to nine months of severance pay. See Separation Policy.

ln arguing that an agreement did not exist, defendants make much of the fact that
the employee handbook included an explicit disclaimer that the “[p]olicies set forth in this
handbook are not intended to create a contract, nor are they to be construed to constitute
contractual obligations of any kind or a contract of employment between the employer and
any of its employees” and stated that the provisions “may be amended or canceled at any
time.” Employee Handbook at 5. Although this is certainly evidence that an enforceable
agreement did not exist, it is not dispositive, because D.C. law states that a contractual
disclaimer will not always be sufficient to relieve an employer of obligations that it
includes in its employee regulations For example, in Strass v. Kaiser Founa’. Health Plan
of Mid-Al'lantz`c, 744 A.2d 1000 (D.C. 2000), the D.C. Court of Appeals held that a
personnel policy manual that included an explicit disclaimer similar to the one here, but
that also included language using mandatory terms for the conditions of employment (such
as vacation, severance pay, and health and safety conditions) created a genuine factual
question about whether the employer intended to be bound by the terms of the policy
document. Ia’. at 1012-14.

Here, the Selex employee handbook includes numerous clauses purporting to
include mandatory conditions or promises to its employees First and foremost, the
separation pay provisions are themselves phrased as though they are mandatory. See, e.g.,

Employee Handbook at 5 (“All eligible non-senior management personnel will receive

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Severance Pay . . . .”). Furthermore, the handbook’s provisions on vacation, sick leave,
holidays, and bereavement are also stated in mandatory terms indicating that the company
intended to be bound by the promises it made in the manual. Id. at 34 (“Employees . . . B
§Ligi_bl_e to earn and use vacation time . . . .”) (emphasis added); id. at 35 (“Employees with
200 or more hours of accrued vacation are entitled to annually sell back forty (40) hours . . .
to the company . . . .”) (emphasis added); id. at 36 (Selex “M grant 12 paid holidays per
year.”) (emphasis added); id. at 40 (“[B]ereavement leave M be provided . . . .”)
(emphasis added). Based on this language, l find that, under governing D.C. law, the
company intended to be bound by its promises to the employees that it made in the
handbook, and thus that Peck has the right to enforce the agreement for any benefits that
he accrued under its terms

The analysis does not end here, however, because a plaintiff bringing a breach of
contract claim bears the burden of showing not only that a contract exists, but also that the
elements of breach exist. Banze v. Am. Int’l Exps., Inc., 454 A.2d 816, 817 (D.C. 1983).
As a result, Peck must show that Selex breached its agreement to provide him severance
pay. That means that Peck must show that he was entitled to severance under the
agreement, U that he was not otherwise excluded from severance payment

ln order to be eligible for severance, Peck’s employment must have terminated “due
to lack of work, elimination of position, or change of control.” Employee Handbook at 51.
The parties have not asserted, nor is there any evidence, that Peck was fired because there
was a lack of work or a change in the company’s control. As a result, Peck must show that

he was terminated because his position as Vice President of Business Development was

ll

eliminated. Unfortunately for Peck, he has not met that burden. The evidence clearly
shows that Peck was terminated because he would not return to Kansas to serve in a
different capacity, not because Selex was eliminating the marketing position in D.C. In
fact, the evidence shows that the position remained open and budgeted, and was ultimately
filled in 2014. As such, he is not eligible for severance pay, and Selex is entitled to
judgment on Count l of the Amended Complaint. Because Peck has not established his
threshold eligibility for severance pay, the Court need not determine at this stage whether
his refusal to accept a new assignment in Kansas constitutes “cause” for termination.
B. Count III of the Amended Complaint_Contract Claim for Relocation Expenses
Peck also alleges that he is entitled to the $25,195 closing commission he paid for
the sale of his Overland Park home. As discussed above, Peck formally entered into a
relocation agreement with Selex in February 2012. Under that agreement, Selex agreed to
compensate Peck for specific costs that he had incurred in his move from Overland Park to
D.C., including “the costs associated with the sale of [his] primary residence in Overland
Park.” Relocation Agreement at l. The agreement stated that, “[a]s a condition to
receiving relocation benefits, you must remain employed by SELEX for at least two (2)
years.” Ia’. at 2. lt also stated that if Peck “voluntarily” left Selex within one year of
relocation, he would have to repay 100% of all relocation expenses, and if he left between
the first and second year, he would have to repay 50% of all relocation expenses Ia’.
Defendants argue that the contract’s two-year clause was an express condition
precedent to Peck’s receiving relocation benefits under the contract, and that his failure to

remain at the company for two years means that Selex was not obligated to provide him

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with any relocation benefits whatsoever. But the text, the stated purpose of the agreement,
and the parties’ conduct under the agreement belie this interpretation. The contract’s
repayment clause only required Peck to repay Selex if he “voluntarily” left employment
prior to two years, which he did not. Furthermore, the stated purpose of the agreement is
to facilitate Peck’s relocation to Washington, D.C. in 2012, not two years later in 2014.
Selex’s interpretation also conflicts with its own conduct under the agreement, namely,
Selex’s payment of other costs to Peck under the agreement as they were incurred in 2012.
And lastly, even if the clause were a condition precedent as Selex asserts, a party that
prevents a condition precedent from occurring_by firing an employee, for example_
cannot stand on the condition’s non-occurrence to avoid obligations under a contract. See
Rel`man v. Im’l Hospl`tall`ly Grp., 558 A.2d 1128, 1132 (D.C. 1989); See also Swaback v.
Am. Info. Techs. Corp., 103 F.3d 535, 542 n.l6 (7th Cir. 1996). Peck, therefore, is entitled
to judgment on Count III. Furthermore, l conclude that Peck is entitled to prejudgment
interest at a 6% per annum rate, see D.C. Code § 15-109; Fed. Mktg. Co. v. Va. Impression
Proa’s. Co., 823 A.2d 513, 531-32 (D.C. 2003), and will permit the parties to submit ajoint
judgment order containing the prejudgment interest amount or simultaneously file

memoranda addressing any dispute regarding the computation of prejudgment interest.

IV. PLAINTIFF’S MOTION FOR RECONSIDERATION

Thus far, the discussion has focused solely on Counts 1 and 111 of the Amended
Complaint, which where the subject of the June 2017 bench trial. However, Count 11 of

the Amended Complaint alleged that Peck was entitled to $57,020 in deferred

13

compensation under ERISA. See Am. Compl. at 6-9. As noted above, l granted partial
summary judgment to defendants and dismissed Count ll with prejudice in March 2016.
See 03/24/ 16 Mem. Op. and Order. ln my opinion granting partial summary judgment, l
held that the Key Employee Deferred Compensation Plan’s Administrative Committee
reasonably construed and applied the Plan when it determined that Peck had been
terminated for cause and thus denied his April 2013 claim for benefits See 03/24/16 Mem.
Op. at 9-12. After the conclusion of the June 2017 bench trial, plaintiff moved under
Federal Rule of Civil Procedure 54(b) and asked this Court to reconsider the March 2016
Order and grant judgment to Peck on the Count ll ERISA claim. For the reasons discussed
below, 1 must DENY that Motion.

Federal Rule 54(b) states that an interlocutory order “may be revised at any time
before the entry of` a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Pursuant to Rule 54(b), the Court can revise an interlocutory order “as justice
requires.” Capitol Sprinkler Inspecl'ion, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C.
Cir. 2011). However, the moving party has the burden of showing that reconsideration is
warranted, and that some harm or injustice would result if reconsideration were to be
denied. Pueschel v. Nat’lAz'r Trajj'ic Controllers’/fss ’n, 606 F. Supp. 2d 82, 85 (D.D.C.
2009). Under that standard, reconsideration may be warranted “where there was a patent
misunderstanding of the parties, where a decision was made that exceeded the issues
presented, where a court failed to consider controlling law, or where a significant change
in the law occurred after the decision was rendered.” Ia'. (citing Singh v. George Wash.

Um`v., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)). Courts considering motions for

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reconsideration should take into account, however, that “where litigants have once battled
for the court’s decision, they should neither be required, nor without good reason permitted,
to battle for it again.” Singh, 383 F. Supp. 2d at 101.

Here, plaintiff has not met the burden required of showing that reconsideration is
warranted Plaintiff’s motion for reconsideration is largely a repetition of the arguments
raised in his original motion for summary judgment, see Pl.’s Mot. Summ. J. [Dkt. # 42],
and it provides no reason that persuades me to amend my earlier judgment that the
Administrative Committee reasonably construed and applied the deferred compensation
Plan when it determined that his termination had been for cause. See 03/24/ 16 Mem. Op.
at 9-12; cf Capitol Sprinkler Inspection, Inc., 630 F.3d at 227 (denial of reconsideration
proper when movant “raised no arguments for reconsideration the court had not already
rejected on the merits”). As a result, plaintiff’ s Motion for Reconsideration is DENIED.

CONCLUSION

For all of the reasons discussed in this Memorandum Opinion, the Court will enter
judgment for Selex on Count I' of the Amended Complaint, will enter judgment for Peck
on Count III of the Amended Complaint, and will DENY Peck’s Motion for
Reconsideration of Count 11 of the Amended Complaint [Dkt. # 65]. An Order consistent

with this Memorandum Opinion will issue separately.

CZ»\.;BW

RICHARD kgtoN
United States District Judge

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