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[J-3-2015] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
PHILADELPHIA FIREFIGHTERS' UNION, : No. 16 EAP 2014 LOCAL 22, INTERNATIONAL : ASSOCIATION OF FIREFIGHTERS, AFL- : Appeal from the order of the CIO BY ITS GUARDIAN AD LITEM : Commonwealth Court entered on WILLIAM GAULT, PRESIDENT, TIM : 9/18/2013 at No. 869 C.D. 2013 reversing MCSHEA, VICE PRESIDENT, KELVIN : the order entered on 5/14/2013 in the FONG, VICE PRESIDENT, AND FIRE : Court of Common Pleas, Civil Division, LIEUTENANT ANDREW THOMAS, : Philadelphia County at No. 1039 May : Term 2013 Appellants : : 78 A.3d 16 (Pa.Cmwlth. 2013) : v. : ARGUED: March 10, 2015 : : CITY OF PHILADELPHIA, MAYOR : MICHAEL A. NUTTER, RICHARD : NEGRIN, LLOYD AYERS, : : Appellees :
OPINION
MR. JUSTICE BAER DECIDED: July 20, 2015 The International Association of Firefighters, Local 22, AFL-CIO, and its named
officers (collectively, the Union) is the collective bargaining unit representing the City of
Philadelphia’s firefighters and paramedics. It appeals from the order of the
Commonwealth Court, which reversed the trial court’s grant of peremptory judgment in
mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter, Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill
vacancies immediately in the positions of Fire Captain and Fire Lieutenant. The
Commonwealth Court held that neither the Home Rule Charter, 351 Pa.Code §§ 1.100
et seq, nor the Civil Service Regulations require vacancies to be filled immediately. We
agree, and hold that the Union has not established a clear legal right to relief or a
corresponding duty in the City, and that it is therefore not entitled to peremptory
judgment in mandamus.
Union members are subject to Philadelphia’s Civil Service Regulations, which
comprise the procedures for hiring and promotion in the City in accord with the Home
Rule Charter. The Home Rule Charter directs that Civil Service Regulations “shall
provide for” promotions which “give appropriate consideration to the applicant’s
qualifications, record of performance, seniority and conduct.” 351 Pa.Code § 7.7-400.
Moreover, “[v]acancies shall be filled by promotion whenever possible, and promotion
shall be on a competitive basis except where the Personnel Director with the approval
of the Civil Service Commission finds that competition is impracticable.” Id., § 7.7-
401(e).
Moreover, the Home Rule Charter requires “the establishment of eligible lists for
appointment and promotion,” the ranking of eligible candidates in order of their
performance on civil service examinations, and directs that such lists “shall continue in
force for at least one year . . . until exhausted or replaced by more recently prepared
lists but in no case longer than two years.” Id., § 7.7-401(f). The Home Rule Charter
further requires the City to certify the two candidates with the highest standing on the
appropriate eligible list to fill a vacancy, and directs that after a candidate has been
[J-3-2015] - 2 rejected twice by an appointing authority in favor of other candidates, that candidate can
no longer be certified.1 Id., § 7.7-401(h).
The Home Rule Charter calls for the promulgation of Civil Service Regulations “to
establish for the City a system of personnel administration based on merit principles and
scientific methods governing the appointment, promotion, demotion, transfer, layoff,
removal and discipline of its employees, and other incidents of City employment.” 351
Pa.Code § 7.7-300. Moreover, “[a]ll appointments and promotions to positions in the
civil service shall be made in accordance with the civil service regulations.” Id. The
Civil Service Regulations apply to firefighters in Philadelphia. Phila. Civil Serv. Reg.
2.06.
Pursuant to the Civil Service Regulations, promotions are made from a
“promotional list,” which is defined as “an eligible list of names of persons who have
passed a promotional examination for a particular class of position and whose names
are ranked on the list in the order prescribed in these Regulations.” Phila. Civil Serv.
Reg. 2.38; see also id. 10.013 (providing that a “promotional eligible list” is “[c]omprised
of all qualified candidates who have permanent civil service status and who have
passed an examination and are ranked in order of relative excellence.”). Eligible
candidates receive their ranking based on test scores and a number of other factors,
including interviews, prior performance, and veteran’s status. Phila. Civil Serv. Reg.
2.38, 2.39, 9.02, 9.022, 9.023, 10.013.
Once the City approves and publishes a promotional list of candidates, those
candidates “may be certified and appointed at any time . . . until the list expires or is
exhausted or cancelled.” Phila. Civil Serv. Reg. 10.022. Moreover, the Director of
1 An exception to this rule of rejection exists where a non-veteran candidate was passed over in favor of a veteran, which does not constitute a rejection. 351 Pa.Code § 7.7-401(h).
[J-3-2015] - 3 Human Resources for the City of Philadelphia (Director) “may publish a List of
Candidates and establish an eligible list at separate times or simultaneously as deemed
necessary or desirable to meet the needs of the service.” Id. A promotional list
continues in force until it is exhausted or replaced, “but in no case longer than two
years.” Id., 10.071. When a more recent promotional list has been established, the
Director may cancel a previous promotional list that is more than a year old, and replace
it with the more recent list or consolidate them under certain conditions. Id. An eligible
candidate remaining on a prior list that has expired may take a new examination for
placement on a new promotional list. Phila. Civil Serv. Reg. 10.081.
Pursuant to Regulation 9.021, “[u]nless vacancies are filled by demotion,
transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as
practicable by the promotion of permanent employees in the Civil Service.” Phila. Civ.
Serv. Reg. 9.021. To fill a vacancy by promotion in the Fire Department, the Fire
Commissioner (Commissioner) requests the Director to certify, with certain
qualifications, the top two candidates from the promotional list for that position. Id.,
11.091, 11.03. The Commissioner may choose either of the two candidates. Id. If the
Commissioner wishes to fill more than one vacancy at a time, he may request the
Director to certify a set of candidates for the positions. Id., 11.04.
A candidate who is rejected for promotion is returned to the promotional list; like
the Home Rule Charter, the regulations provide that two rejections will result in no
further referrals to the Commissioner by the Director. Phila. Civil Serv. Reg. 11.05. The
promotion of a candidate who is selected by the Commissioner is subject to approval by
the Director and is conditional on the candidate passing a medical examination. Id.,
11.035, 11.11, 11.12, 9.1413. During a six-month probationary period, the
[J-3-2015] - 4 Commissioner has the discretion to demote or discharge the candidate from the position
if the candidate does not perform in a satisfactory manner. Id., 14.01, 14.04.
With this framework in mind, we turn to the facts of this case. On May 25, 2011,
following civil service testing and ranking, the City established a promotional list for the
positions of Fire Captain and Fire Lieutenant that was set to expire by operation of law
on May 25, 2013 (hereafter, the May 2011 list), two years from the date it was
established. The City thereafter promoted 35 employees into the position of Fire
Captain and 78 into the position of Fire Lieutenant from the list, leaving 82 individuals
on the list for the position of Fire Captain and 140 on the list for Fire Lieutenant.
Near the end of the May 2011 list’s two-year term, an additional 17 positions
became vacant. The City, however, declined to fill these vacancies through utilization of
the May 2011 list. Instead, on May 3, 2013, the Director of Public Safety announced at
a City Council hearing the City’s decision to await the expiration of the May 2011 list by
operation of law in three weeks’ time, and to fill the vacancies with the top-ranking
candidates from the next promotional list. This new list was to be established following
civil service testing and ranking after May 25, 2013.2 The Director of Public Safety
explained that the City wanted to allow the May 2011 list to expire because the
candidates who remained on the list were ranked near the bottom, and the City would
prefer to choose the highest ranked candidates from a new list.3
2 By May 13, 2013, a new civil service examination had been given, and the City was in the process of creating a new promotional list for the positions of Fire Captain and Fire Lieutenant.
3 As further background relevant to this current legal dispute, the City and Union are parties to a collective bargaining agreement pursuant to Act 111, 43 P.S. § 217.1- 217.10. Prior to the instant litigation, the Union submitted a set of proposals as part of its interest arbitration process with the City, specifically requesting that the City be required to fill all vacancies within 60 days, or, where a vacancy arose within 60 days of (Lcontinued)
[J-3-2015] - 5 Dissatisfied with the City’s intended course of conduct in this regard, on May 13,
2013, the Union filed an emergency motion in the Philadelphia Court of Common Pleas
for preliminary injunction or for peremptory judgment in mandamus directing the City to
promote immediately six Union members to Fire Captain and 11 to Fire Lieutenant from
the May 2011 list.4 The City responded that it was not legally required to fill vacancies
before the May 2011 list expired.
The trial court heard oral argument on the Union’s emergency motion for
preliminary injunction and mandamus on May 14, 2013. Following oral argument, the
court entered an order granting the Union peremptory judgment in mandamus and
directing the City to fill vacancies for the positions of Fire Captain and Fire Lieutenant
prior to May 25, 2013. The trial court relied on Section 7-401(e) of the Home Rule
Charter to hold that vacancies must be filled by promotion at the first possible
opportunity rather than at the City’s discretion. Finding no impediment preventing the
City from doing so, and specifically finding that the vacancies at issue were already
“budgeted,” the trial court found that peremptory judgment in mandamus was
appropriate to compel the performance of the ministerial act of immediately promoting
(continuedL) the expiration of an active promotional list, before the list expired. The Union’s proposal was rejected, and interest arbitration resulted in two awards setting forth the City’s management rights, including the right to determine selection and direction of personnel.
4 Mandamus relief is proper only where the petitioner demonstrates a clear legal right in the petitioner; a corresponding duty in the respondent; and the absence of any other appropriate or adequate remedy. Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985).
[J-3-2015] - 6 candidates from the promotional list, and to vindicate the Union’s clear legal right to this
relief.5
The City appealed to the Commonwealth Court, arguing that the trial court erred
because neither the Home Rule Charter nor the Civil Service Regulations require
vacancies to be filled immediately; rather, they merely mandate that when the positions
are filled, it must be by promotion as opposed to outside hiring. The City further argued
that mandamus relief was inappropriate because the Fire Commissioner has discretion
to decide whether or when to promote candidates and, therefore, the promotion process
does not involve a ministerial act by the City or a clear legal right to relief for the Union.
The Commonwealth Court agreed with the City, reversed the trial court’s order,
and remanded to the trial court to dismiss the Union’s complaint. Philadelphia
Firefighters’ Union v. City of Philadelphia, 78 A.3d 16 (Pa.Cmwlth. 2013). Examining
Sections 7-401(e) of the Home Rule Charter and 9.021 of the Civil Service Regulations,
the Commonwealth Court interpreted them to mean that promotion from the promotional
list is the required method of filling vacancies (unless the vacancy is filled by demotion,
transfer, reinstatement, or from a layoff list, in accord with Regulation 9.021), and found
nothing in these provisions requiring promotion as soon as a position becomes vacant.
Additionally, the Court found nothing to prevent the City from allowing an old list
to expire so that it could promote individuals from a new list, and nothing that granted
candidates on a particular list a right to be promoted into a vacancy. Finally, the
Commonwealth Court observed that the Civil Service Regulations gave the
Commissioner discretion in deciding when to promote employees or to fill vacancies.
5 Upon the trial court’s grant of relief to the Union, the City promoted several Union members into the positions of Fire Captain and Fire Lieutenant, and informed them that their promotions were subject to the City’s appeal. The promoted Union members took the civil service examination for placement on the promotional list, but did not pass.
[J-3-2015] - 7 Phila. Civil Serv. Reg. 10.022 (“[e]ligible candidates may be certified and appointed at
any time after the list has been established until the list expires or is exhausted or
cancelled.”) (emphasis added); 11.04 (providing the procedure to be used where the
appointing authority, here, the Commissioner, decides to fill more than one vacancy at a
time). Because there was no right to a promotion, and the promotion of individuals from
a promotional list is not a ministerial act, the Commonwealth Court held the trial court
erred in granting mandamus relief.
Upon further appeal by the Union, we granted allowance of appeal to decide two
issues: Whether the Commonwealth Court’s decision is inconsistent with similar
decisions of that court involving the Philadelphia Home Rule Charter and Civil Service
Regulations; and whether the Commonwealth Court disregarded the continued viability
of the Civil Service public employment system. Philadelphia Firefighters’ Union v. City
of Philadelphia, 91 A.3d 1235 (Pa. 2014).
Relying first on the Home Rule Charter, 351 Pa.Code § 7.7-401 (“[v]acancies
shall be filled by promotion whenever possible.”), the Union argues that once a vacancy
exists, that vacancy must be filled immediately through the civil service process.
According to the Union, the Civil Service Regulations likewise require vacancies to be
filled immediately by promotion (if they are not filled by other specified means). Phila.
Civil Serv. Reg. 9.021 (“[u]nless vacancies are filled by demotion, transfer,
reinstatement, or by certification from a layoff list, they shall be filled so far as
practicable by the promotion of permanent employees in the Civil Service.”). Because,
according to the Union, it was both possible and practicable for the City to fill the
vacancies by promotion, it argues the City had no discretion to simply allow the
vacancies to remain unfilled until a new promotional list was established.
[J-3-2015] - 8 The Union also attempts to undermine the Commonwealth Court’s holding on
policy grounds, arguing that the civil service system exists to limit and control
employment premised on favoritism, cronyism, and discrimination by maintaining
objectivity in employment decisions. Under the Commonwealth Court holding,
according to the Union, the Fire Commissioner could keep vacancies open for any
length of time, years or decades in fact, for the sole purpose of awaiting the appearance
of a desired candidate on an eligibility list. Addressing the City’s suggestion that
individuals from the top of a new list would be better candidates than those at the
bottom of the expiring list, the Union argues that every candidate who was on the May
2011 list was there because the City deemed them objectively qualified.
The Union argues that the Commonwealth Court decision in this case is
inconsistent with Walls v. City of Philadelphia, 646 A.2d 592 (Pa.Cmwlth. 1994). In
Walls, the City and a group of civil service applicants agreed to extend a promotional list
to three years. Another group of applicants challenged this decision, arguing that the
promotional list expired by operation of law after two years. The trial court ordered the
City to cease using the list and create a new one, agreeing that the old list had expired
after two years. On appeal, the Commonwealth Court affirmed, examining the
Philadelphia Home Rule Charter and Civil Service Regulations and finding no exception
to the two-year mandatory expiration. The Union characterizes Walls as the
Commonwealth Court’s rejection of the City’s “attempt to dodge specific mandates of
the civil service regulations.” Union’s brief at 9.
The Union argues that the Commonwealth Court decision in this case was also
contrary to City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 574 A.2d 123
(Pa.Cmwlth. 1990). There, the trial court and the Commonwealth Court concluded that
the City was required to rank civil service candidates based on their test results, rather
[J-3-2015] - 9 than randomly by a computer, holding that the Charter and Civil Service Regulations
clearly required competitive civil service selection based on relative fitness. The Union
asserts that as in FOP Lodge No. 5, the City here is improperly attempting to make up
its own rules and disregard the Charter and Civil Service Regulations.
The City responds by arguing that there is no clear legal right to a promotion or a
corresponding duty in the City to make immediate promotions; therefore, the
Commonwealth Court properly held that the Union was not entitled to mandamus relief.
See, e.g., Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985). The
City relies on various provisions of the Home Rule Charter and the Civil Service
Regulations to support this position.
Specifically, the City argues that the Home Rule Charter does not provide a clear
legal right to a promotion. Examining Section 7-401(e) as the primary Charter provision
on which the Union relies, the City asserts that its direction that “[v]acancies shall be
filled by promotion whenever possible. . . .” does not mean that vacancies are to be
filled immediately by promotion; rather, as the Commonwealth Court found, the City
contends this provision mandates only that when vacancies are filled, they are to be
filled by promotion as opposed to outside hiring. It supports this argument by referring
to the annotation to subsection (e), which provides that “[p]romotion upon merit and
other recognized bases is an important incentive for achievement and continued
municipal service and employment.” 351 Pa.Code § 7.7-401, Annot. (Purposes).
According to the City, this annotation demonstrates that promotion is the favored
method of filling vacancies so that career tracks are created and municipal employees
can strive for advancement without fear of being passed over in favor of outside hiring.
Examining the context of the rest of Section 7-401, the City argues that the entire
provision is dedicated to the manner of hiring, firing, and promoting, rather than to the
[J-3-2015] - 10 decision of whether or when to hire, fire, or promote. See 351 Pa.Code § 7.7-401(a)
(preparation and creation of position classifications); § 7.7-401(b) (calling for the
creation of a pay scale); § 7.7-401(c) (creation of open examinations); § 7.7-401(d) (the
establishment of certain preferences in entrance examinations); § 7.7-401(f) (the
establishment of promotional lists); § 7.7-401(g) (the rejection of candidates); § 7.7-
401(h) (certification of two candidates for a position); § 7.7-401(i) (identification of
employees); § 7.7-401(j) (the establishment of a six month probationary period); § 7.7-
401(n) (performance ratings for employees); § 7.7-401(p) (calling for suspensions that
are limited to thirty days); § 7.7-401(q) (discharge or demotion).
Taking a broader view of City-wide fiscal responsibility, the City argues that a
number of reasons regularly exist that preclude immediate expenditure of budgeted
dollars, and the Home Rule Charter gives the Mayor and his Director of Finance
unreviewable authority not to spend appropriated funds. See 351 Pa.Code § 8.8-102
(authorizing the Mayor and the Director of Finance not to spend appropriated funds to
avoid deficits and as a check on performance); id. § 4.4-101(e) (requiring the Mayor to
prevent deficits).
Addressing the Civil Service Regulations promulgated in accord with the Home
Rule Charter, the City argues that, like the Charter, the regulations contain no
requirement that the City immediately fill vacant positions. Rather, they merely address
the manner of filling vacancies. Specifically examining the requirement in Regulation
9.021 (providing that unless vacancies are filled by demotion, transfer, reinstatement, or
from a layoff list, they “shall be filled so far as practicable” by promotion), the City
argues that it mirrors Section 7-401(e) of the Home Rule Charter by establishing a
preference for promotion rather than hiring from outside.
[J-3-2015] - 11 Further, according to the City, neither the regulations nor the Charter require that
a particular promotional list be exhausted before a new list is established, or that
promotions must occur before an old list expires. Rather, the City posits that the
purpose of expiring a promotional list after two years is to provide employees
reasonable opportunity for advancement and to replenish the list periodically with the
most competent candidates for promotion. See 351 Pa.Code § 7.7-401(f) (Annon)
(“The one year minimum is imposed so that examinees will have a reasonable
opportunity for employment. A two year maximum is necessary so that lists shall be
replenished periodically with the names of the most competent candidates available for
employment.”); Phila. Civil Serv. Reg. 10.071 (“When a more recent list has been
established for a class, the Director may determine that a previous non-continuous or
periodic list for that class, which is more than one year old, shall be canceled and
replaced by the more recently established list, or consolidated. . . .”).
Turning to whether promotions are a ministerial act or duty, the City argues that
they are not, and asserts that the Commissioner has discretion about when to fill
vacancies. According to the City, the Commissioner has discretion to decide whether to
spend appropriated funds, to conserve resources for future use, how to apportion funds
in the first instance, how many positions are needed, and how to structure his
supervisory and management team. The City further asserts that the Commissioner
must exercise his own judgment and opinion as to whether a promotion is proper;
whether a particular candidate should be promoted, rejected, rejected twice and not
considered again, or whether that person should remain in the position following the six-
month probationary period. Phila. Civil Serv. Reg. 11.03, 11.04, 11.05, 14.01.
Additionally, the City asserts that other City officials have independent review
over promotions the Commissioner chooses to make. For example, no promotion
[J-3-2015] - 12 becomes final until the candidate is deemed medically fit, Phila. Civil Serv. Reg. 9.1413,
9.1415, 11.033, 11.0331, or until the Director of Human Resources determines that the
promotion was in accord with the Civil Service Regulations, id., 11.11, 11.12. Even
when a promotion has been anticipated and accounted for in the budget, it must be
approved by the Finance Director as being within the City’s finances and appropriations.
See 351 Pa.Code. § 6.6-100, 6.6-106, 8.8-102. These approvals require, to some
extent, the exercise of discretion which, according to the City, defeats the Union’s
entitlement to mandamus relief.
Finally, the City argues that the Commonwealth Court’s decision in this case is
consistent with prior cases that have held a trial court exceeds its authority and
improperly invades a department’s discretion when it orders a city to make promotions
from a promotional list. Trosky & Gregorchik v. Civil Service Comm’n v. City of
Pittsburgh, 652 A.2d 813, 818-19 (Pa. 1995); Walls.
Peremptory judgment in mandamus is an extraordinary remedy utilized “to
compel performance of a ministerial act or mandatory duty where there exists a clear
legal right in the plaintiff, a corresponding duty in the defendant, and want of any other
adequate and appropriate remedy.” Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d
425, 430 n.11 (Pa. 1978). A ministerial act is one which a public officer is “required to
perform upon a given state of facts and in a prescribed manner in obedience to the
mandate of legal authority.” County of Allegheny Deputy Sheriff’s Ass’n v. County of
Allegheny, 730 A.2d 1065, 1067-68 (Pa.Cmwlth. 1999). A writ of mandamus cannot
issue to “compel performance of a discretionary act or to govern the manner of
performing [the] required act.” Fagan v. Smith, 41 A.3d 816, 817 (Pa. 2012). A clear
legal right to relief is shown where the right to require performance of the act is clear,
Shroyer v. Thomas, 81 A.2d 435, 436 (Pa. 1951), and a corresponding duty is shown
[J-3-2015] - 13 where the governing law contains directory language, requiring that an act shall be
done. Stork v. Sommers, 630 A.2d 984, 986-87 (Pa.Cmwlth. 1993). A ministerial act
admits of “no discretion in the municipal officer[.]” Llormer v. Bowen, 188 A.2d 747, 750
(Pa. 1963). A want of any other adequate remedy is established where there is no
alternative form of relief. Styers v. Wade, 372 A.2d 1236, 1238 (Pa.Cmwlth. 1977).
Mindful that mandamus is an extraordinary remedy dependent on a clear legal
right in the plaintiff, here, the Union, we agree with the City and the Commonwealth
Court that while the Commissioner is required to fill vacancies in the manner prescribed
by the Home Rule Charter and the Civil Service Regulations, neither the Charter nor the
Regulations speak to the timing of promotions or otherwise create a clear legal right to a
promotion.
To support its legal right to immediate promotion whenever a vacancy arises, the
Union relies on Section 7-401(e) of the Home Rule Charter (“[v]acancies shall be filled
by promotion whenever possible. . . .”) and Civil Service Regulation 9.021 (“[u]nless
vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff
list, they shall be filled so far as practicable by the promotion of permanent employees
in the Civil Service.”). These provisions, however, read in isolation or in context,
indicate that when vacancies are filled, the City is required to fill them by promotion as
opposed to another method of hiring, such as hiring from the outside. Use of the
phrases “whenever possible” and “so far as practicable” modify the manner of filling
vacancies, i.e., by promotion. They emphasize that the preferred method of doing so is
by promotion, and direct that only when promotion is not possible or practicable can the
City consider other methods of filling a vacancy.
The annotation to Section 7-401(e) of the Home Rule Charter supports this
conclusion, providing that promotion is an important incentive for achievement and
[J-3-2015] - 14 continued municipal employment. Its emphasis is upon the significance of promotion in
municipal employment, rather than on filling vacancies as soon as they arise. Reading
Section 7-401(e) together with its annotation establishes that whenever possible the
City should prioritize promotion and career advancement of municipal employees when
it fills vacancies. Civil Service Regulation 9.021 restates this preference, placing
promotion behind demotion, transfer, reinstatement, and from a layoff list as the
sanctioned methods for filling vacancies.
In addition to failing to establish a clear legal right to relief, the Union has failed to
establish a corresponding duty in the City. As established above, neither Section 7-
401(e) of the Home Rule Charter nor Civil Service Regulation 9.021 require the City to
fill vacancies immediately, and no other provision of the Charter or regulations imposes
such a requirement upon the City. There is no imperative that the City exhaust a
promotional list before establishing a new list, or that promotions must occur from a
particular list before it expires. Rather, the City is required to expire a list after two
years to provide employees “reasonable opportunity for employment” and to replenish
lists with “the names of the most competent candidates available for employment.” 351
Pa.Code § 7.7-401(f); Phila. Civil Serv. Reg. 10.071. Moreover, the regulations provide
that the City “may” certify and appoint eligible candidates at any time after a list is
established until it expires. Phila. Civil Serv. Reg. 10.022. The regulation does not
require the City to do so, nor does it contemplate promotion by a certain date.
Our conclusion that the Union is not entitled to mandamus relief is consistent with
our precedent and that of the Commonwealth Court. In Trosky, two police officers
claimed they were improperly removed from a promotional list. 652 A.2d at 813-16.
The officers asserted that the only proper remedy was promotion, because the list from
which their names had been improperly removed had expired. The trial court agreed
[J-3-2015] - 15 and ordered the City of Pittsburgh to promote them. The Commonwealth Court
affirmed.
Before this Court, the City of Pittsburgh argued that promotion was not the proper
remedy because it infringed on the Public Safety Director’s discretion and put the
officers in a better position than they would have been in if their names had not been
struck. Considering the appropriate remedy, we agreed with the City of Pittsburgh that,
given the discretion vested in the Public Safety Director, if the two officers’ names had
remained on the promotional list, it was not certain they would have been promoted, as
the Public Safety Director could have chosen to pass them over. Id. at 817. We held
that the relief ordered by the trial court “had the effect of interfering with the decision-
making authority accorded by statute to the Public Safety Director,” who may have
exercised his discretion not to promote the two officers, and was ordered “without
regard to the administrative consequences of such action.” Id. at 818. We directed the
City of Pittsburgh to put the officers back on the promotional list, make promotions in
accord with established procedures, and ensure that any unsuccessful candidate was
given the opportunity to be placed on the next promotional list by sitting for the required
examination. Id. at 820. Trosky therefore recognized the managerial discretion
inherent in the timing of making promotions.
Moreover, both Commonwealth Court cases relied upon by the Union stand for
the unremarkable proposition that the City cannot disregard the civil service regulations.
In Walls, the City and a group of civil service applicants agreed to extend a promotional
list beyond the two years provided for in the civil service regulations. 646 A.2d at 594.
Another group of applicants challenged this decision, arguing that the list expired after
two years by operation of law. Id. The trial court agreed, ordering the City to disregard
the old list, and to conduct a new promotional examination “forthwith.” Id. at 595. On
[J-3-2015] - 16 appeal, the Commonwealth Court examined the Home Rule Charter and the Civil
Service Regulations and agreed with the trial court that there was no exception to the
two-year mandatory expiration of promotional lists. Id. at 595-96. The Commonwealth
Court held, however, that the appropriate remedy was not to order immediate
administration of a new promotional exam, because the timing and scheduling of
examinations is a matter within the discretion of the Director of Human Resources.
Rather, the Commonwealth Court stated that the Director “may now, at any time,
reschedule another examination wherein the parties . . . would have the same
opportunity to participate and compete.” Id. at 596-97. See also City of Philadelphia,
574 A.2d 126-27 (holding that because the Home Rule Charter requires examinations
that test the relative fitness of applicants for the position of police officer, the City’s
institution of a new procedure that ranked applicants on an eligibility list in random order
was contrary to this requirement and, therefore, legally improper).
Because there is no right to be promoted and no requirement that the City make
promotions as soon as positions become vacant, the Commonwealth Court properly
concluded that the trial court erred in granting mandamus relief to the Union. The order
of the Commonwealth Court is affirmed.
Mr. Chief Justice Saylor, Mr. Justice Eakin and Madame Justice Todd join the
opinion.
Mr. Justice Stevens files a concurring opinion.
[J-3-2015] - 17 | 07-21-2015 | [
"[J-3-2015] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. PHILADELPHIA FIREFIGHTERS' UNION, : No. 16 EAP 2014 LOCAL 22, INTERNATIONAL : ASSOCIATION OF FIREFIGHTERS, AFL- : Appeal from the order of the CIO BY ITS GUARDIAN AD LITEM : Commonwealth Court entered on WILLIAM GAULT, PRESIDENT, TIM : 9/18/2013 at No. 869 C.D. 2013 reversing MCSHEA, VICE PRESIDENT, KELVIN : the order entered on 5/14/2013 in the FONG, VICE PRESIDENT, AND FIRE : Court of Common Pleas, Civil Division, LIEUTENANT ANDREW THOMAS, : Philadelphia County at No. 1039 May : Term 2013 Appellants : : 78 A.3d 16 (Pa.Cmwlth. 2013) : v. : ARGUED: March 10, 2015 : : CITY OF PHILADELPHIA, MAYOR : MICHAEL A. NUTTER, RICHARD : NEGRIN, LLOYD AYERS, : : Appellees : OPINION MR. JUSTICE BAER DECIDED: July 20, 2015 The International Association of Firefighters, Local 22, AFL-CIO, and its named officers (collectively, the Union) is the collective bargaining unit representing the City of Philadelphia’s firefighters and paramedics. It appeals from the order of the Commonwealth Court, which reversed the trial court’s grant of peremptory judgment in mandamus for the Union and against the City of Philadelphia, Mayor Michael A. Nutter, Richard Negrin, and Lloyd Ayers (collectively, the City), and required the City to fill vacancies immediately in the positions of Fire Captain and Fire Lieutenant.",
"The Commonwealth Court held that neither the Home Rule Charter, 351 Pa.Code §§ 1.100 et seq, nor the Civil Service Regulations require vacancies to be filled immediately. We agree, and hold that the Union has not established a clear legal right to relief or a corresponding duty in the City, and that it is therefore not entitled to peremptory judgment in mandamus. Union members are subject to Philadelphia’s Civil Service Regulations, which comprise the procedures for hiring and promotion in the City in accord with the Home Rule Charter. The Home Rule Charter directs that Civil Service Regulations “shall provide for” promotions which “give appropriate consideration to the applicant’s qualifications, record of performance, seniority and conduct.” 351 Pa.Code § 7.7-400. Moreover, “[v]acancies shall be filled by promotion whenever possible, and promotion shall be on a competitive basis except where the Personnel Director with the approval of the Civil Service Commission finds that competition is impracticable.” Id., § 7.7- 401(e). Moreover, the Home Rule Charter requires “the establishment of eligible lists for appointment and promotion,” the ranking of eligible candidates in order of their performance on civil service examinations, and directs that such lists “shall continue in force for at least one year .",
". . until exhausted or replaced by more recently prepared lists but in no case longer than two years.” Id., § 7.7-401(f). The Home Rule Charter further requires the City to certify the two candidates with the highest standing on the appropriate eligible list to fill a vacancy, and directs that after a candidate has been [J-3-2015] - 2 rejected twice by an appointing authority in favor of other candidates, that candidate can no longer be certified.1 Id., § 7.7-401(h). The Home Rule Charter calls for the promulgation of Civil Service Regulations “to establish for the City a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, demotion, transfer, layoff, removal and discipline of its employees, and other incidents of City employment.” 351 Pa.Code § 7.7-300. Moreover, “[a]ll appointments and promotions to positions in the civil service shall be made in accordance with the civil service regulations.” Id. The Civil Service Regulations apply to firefighters in Philadelphia.",
"Phila. Civil Serv. Reg. 2.06. Pursuant to the Civil Service Regulations, promotions are made from a “promotional list,” which is defined as “an eligible list of names of persons who have passed a promotional examination for a particular class of position and whose names are ranked on the list in the order prescribed in these Regulations.” Phila. Civil Serv. Reg. 2.38; see also id. 10.013 (providing that a “promotional eligible list” is “[c]omprised of all qualified candidates who have permanent civil service status and who have passed an examination and are ranked in order of relative excellence.”). Eligible candidates receive their ranking based on test scores and a number of other factors, including interviews, prior performance, and veteran’s status. Phila.",
"Civil Serv. Reg. 2.38, 2.39, 9.02, 9.022, 9.023, 10.013. Once the City approves and publishes a promotional list of candidates, those candidates “may be certified and appointed at any time . . . until the list expires or is exhausted or cancelled.” Phila. Civil Serv. Reg. 10.022. Moreover, the Director of 1 An exception to this rule of rejection exists where a non-veteran candidate was passed over in favor of a veteran, which does not constitute a rejection. 351 Pa.Code § 7.7-401(h).",
"[J-3-2015] - 3 Human Resources for the City of Philadelphia (Director) “may publish a List of Candidates and establish an eligible list at separate times or simultaneously as deemed necessary or desirable to meet the needs of the service.” Id. A promotional list continues in force until it is exhausted or replaced, “but in no case longer than two years.” Id., 10.071. When a more recent promotional list has been established, the Director may cancel a previous promotional list that is more than a year old, and replace it with the more recent list or consolidate them under certain conditions. Id. An eligible candidate remaining on a prior list that has expired may take a new examination for placement on a new promotional list. Phila. Civil Serv. Reg. 10.081. Pursuant to Regulation 9.021, “[u]nless vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as practicable by the promotion of permanent employees in the Civil Service.” Phila. Civ.",
"Serv. Reg. 9.021. To fill a vacancy by promotion in the Fire Department, the Fire Commissioner (Commissioner) requests the Director to certify, with certain qualifications, the top two candidates from the promotional list for that position. Id., 11.091, 11.03. The Commissioner may choose either of the two candidates. Id. If the Commissioner wishes to fill more than one vacancy at a time, he may request the Director to certify a set of candidates for the positions.",
"Id., 11.04. A candidate who is rejected for promotion is returned to the promotional list; like the Home Rule Charter, the regulations provide that two rejections will result in no further referrals to the Commissioner by the Director. Phila. Civil Serv. Reg. 11.05. The promotion of a candidate who is selected by the Commissioner is subject to approval by the Director and is conditional on the candidate passing a medical examination. Id., 11.035, 11.11, 11.12, 9.1413. During a six-month probationary period, the [J-3-2015] - 4 Commissioner has the discretion to demote or discharge the candidate from the position if the candidate does not perform in a satisfactory manner. Id., 14.01, 14.04. With this framework in mind, we turn to the facts of this case.",
"On May 25, 2011, following civil service testing and ranking, the City established a promotional list for the positions of Fire Captain and Fire Lieutenant that was set to expire by operation of law on May 25, 2013 (hereafter, the May 2011 list), two years from the date it was established. The City thereafter promoted 35 employees into the position of Fire Captain and 78 into the position of Fire Lieutenant from the list, leaving 82 individuals on the list for the position of Fire Captain and 140 on the list for Fire Lieutenant. Near the end of the May 2011 list’s two-year term, an additional 17 positions became vacant.",
"The City, however, declined to fill these vacancies through utilization of the May 2011 list. Instead, on May 3, 2013, the Director of Public Safety announced at a City Council hearing the City’s decision to await the expiration of the May 2011 list by operation of law in three weeks’ time, and to fill the vacancies with the top-ranking candidates from the next promotional list. This new list was to be established following civil service testing and ranking after May 25, 2013.2 The Director of Public Safety explained that the City wanted to allow the May 2011 list to expire because the candidates who remained on the list were ranked near the bottom, and the City would prefer to choose the highest ranked candidates from a new list.3 2 By May 13, 2013, a new civil service examination had been given, and the City was in the process of creating a new promotional list for the positions of Fire Captain and Fire Lieutenant. 3 As further background relevant to this current legal dispute, the City and Union are parties to a collective bargaining agreement pursuant to Act 111, 43 P.S.",
"§ 217.1- 217.10. Prior to the instant litigation, the Union submitted a set of proposals as part of its interest arbitration process with the City, specifically requesting that the City be required to fill all vacancies within 60 days, or, where a vacancy arose within 60 days of (Lcontinued) [J-3-2015] - 5 Dissatisfied with the City’s intended course of conduct in this regard, on May 13, 2013, the Union filed an emergency motion in the Philadelphia Court of Common Pleas for preliminary injunction or for peremptory judgment in mandamus directing the City to promote immediately six Union members to Fire Captain and 11 to Fire Lieutenant from the May 2011 list.4 The City responded that it was not legally required to fill vacancies before the May 2011 list expired. The trial court heard oral argument on the Union’s emergency motion for preliminary injunction and mandamus on May 14, 2013.",
"Following oral argument, the court entered an order granting the Union peremptory judgment in mandamus and directing the City to fill vacancies for the positions of Fire Captain and Fire Lieutenant prior to May 25, 2013. The trial court relied on Section 7-401(e) of the Home Rule Charter to hold that vacancies must be filled by promotion at the first possible opportunity rather than at the City’s discretion. Finding no impediment preventing the City from doing so, and specifically finding that the vacancies at issue were already “budgeted,” the trial court found that peremptory judgment in mandamus was appropriate to compel the performance of the ministerial act of immediately promoting (continuedL) the expiration of an active promotional list, before the list expired.",
"The Union’s proposal was rejected, and interest arbitration resulted in two awards setting forth the City’s management rights, including the right to determine selection and direction of personnel. 4 Mandamus relief is proper only where the petitioner demonstrates a clear legal right in the petitioner; a corresponding duty in the respondent; and the absence of any other appropriate or adequate remedy. Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985). [J-3-2015] - 6 candidates from the promotional list, and to vindicate the Union’s clear legal right to this relief.5 The City appealed to the Commonwealth Court, arguing that the trial court erred because neither the Home Rule Charter nor the Civil Service Regulations require vacancies to be filled immediately; rather, they merely mandate that when the positions are filled, it must be by promotion as opposed to outside hiring. The City further argued that mandamus relief was inappropriate because the Fire Commissioner has discretion to decide whether or when to promote candidates and, therefore, the promotion process does not involve a ministerial act by the City or a clear legal right to relief for the Union.",
"The Commonwealth Court agreed with the City, reversed the trial court’s order, and remanded to the trial court to dismiss the Union’s complaint. Philadelphia Firefighters’ Union v. City of Philadelphia, 78 A.3d 16 (Pa.Cmwlth. 2013). Examining Sections 7-401(e) of the Home Rule Charter and 9.021 of the Civil Service Regulations, the Commonwealth Court interpreted them to mean that promotion from the promotional list is the required method of filling vacancies (unless the vacancy is filled by demotion, transfer, reinstatement, or from a layoff list, in accord with Regulation 9.021), and found nothing in these provisions requiring promotion as soon as a position becomes vacant. Additionally, the Court found nothing to prevent the City from allowing an old list to expire so that it could promote individuals from a new list, and nothing that granted candidates on a particular list a right to be promoted into a vacancy.",
"Finally, the Commonwealth Court observed that the Civil Service Regulations gave the Commissioner discretion in deciding when to promote employees or to fill vacancies. 5 Upon the trial court’s grant of relief to the Union, the City promoted several Union members into the positions of Fire Captain and Fire Lieutenant, and informed them that their promotions were subject to the City’s appeal. The promoted Union members took the civil service examination for placement on the promotional list, but did not pass. [J-3-2015] - 7 Phila. Civil Serv. Reg. 10.022 (“[e]ligible candidates may be certified and appointed at any time after the list has been established until the list expires or is exhausted or cancelled.”) (emphasis added); 11.04 (providing the procedure to be used where the appointing authority, here, the Commissioner, decides to fill more than one vacancy at a time). Because there was no right to a promotion, and the promotion of individuals from a promotional list is not a ministerial act, the Commonwealth Court held the trial court erred in granting mandamus relief. Upon further appeal by the Union, we granted allowance of appeal to decide two issues: Whether the Commonwealth Court’s decision is inconsistent with similar decisions of that court involving the Philadelphia Home Rule Charter and Civil Service Regulations; and whether the Commonwealth Court disregarded the continued viability of the Civil Service public employment system.",
"Philadelphia Firefighters’ Union v. City of Philadelphia, 91 A.3d 1235 (Pa. 2014). Relying first on the Home Rule Charter, 351 Pa.Code § 7.7-401 (“[v]acancies shall be filled by promotion whenever possible.”), the Union argues that once a vacancy exists, that vacancy must be filled immediately through the civil service process. According to the Union, the Civil Service Regulations likewise require vacancies to be filled immediately by promotion (if they are not filled by other specified means). Phila. Civil Serv. Reg. 9.021 (“[u]nless vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as practicable by the promotion of permanent employees in the Civil Service.”). Because, according to the Union, it was both possible and practicable for the City to fill the vacancies by promotion, it argues the City had no discretion to simply allow the vacancies to remain unfilled until a new promotional list was established.",
"[J-3-2015] - 8 The Union also attempts to undermine the Commonwealth Court’s holding on policy grounds, arguing that the civil service system exists to limit and control employment premised on favoritism, cronyism, and discrimination by maintaining objectivity in employment decisions. Under the Commonwealth Court holding, according to the Union, the Fire Commissioner could keep vacancies open for any length of time, years or decades in fact, for the sole purpose of awaiting the appearance of a desired candidate on an eligibility list. Addressing the City’s suggestion that individuals from the top of a new list would be better candidates than those at the bottom of the expiring list, the Union argues that every candidate who was on the May 2011 list was there because the City deemed them objectively qualified. The Union argues that the Commonwealth Court decision in this case is inconsistent with Walls v. City of Philadelphia, 646 A.2d 592 (Pa.Cmwlth.",
"1994). In Walls, the City and a group of civil service applicants agreed to extend a promotional list to three years. Another group of applicants challenged this decision, arguing that the promotional list expired by operation of law after two years. The trial court ordered the City to cease using the list and create a new one, agreeing that the old list had expired after two years. On appeal, the Commonwealth Court affirmed, examining the Philadelphia Home Rule Charter and Civil Service Regulations and finding no exception to the two-year mandatory expiration. The Union characterizes Walls as the Commonwealth Court’s rejection of the City’s “attempt to dodge specific mandates of the civil service regulations.” Union’s brief at 9. The Union argues that the Commonwealth Court decision in this case was also contrary to City of Philadelphia v. Fraternal Order of Police, Lodge No.",
"5, 574 A.2d 123 (Pa.Cmwlth. 1990). There, the trial court and the Commonwealth Court concluded that the City was required to rank civil service candidates based on their test results, rather [J-3-2015] - 9 than randomly by a computer, holding that the Charter and Civil Service Regulations clearly required competitive civil service selection based on relative fitness. The Union asserts that as in FOP Lodge No. 5, the City here is improperly attempting to make up its own rules and disregard the Charter and Civil Service Regulations. The City responds by arguing that there is no clear legal right to a promotion or a corresponding duty in the City to make immediate promotions; therefore, the Commonwealth Court properly held that the Union was not entitled to mandamus relief. See, e.g., Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 272 (Pa. 1985).",
"The City relies on various provisions of the Home Rule Charter and the Civil Service Regulations to support this position. Specifically, the City argues that the Home Rule Charter does not provide a clear legal right to a promotion. Examining Section 7-401(e) as the primary Charter provision on which the Union relies, the City asserts that its direction that “[v]acancies shall be filled by promotion whenever possible. . . .” does not mean that vacancies are to be filled immediately by promotion; rather, as the Commonwealth Court found, the City contends this provision mandates only that when vacancies are filled, they are to be filled by promotion as opposed to outside hiring. It supports this argument by referring to the annotation to subsection (e), which provides that “[p]romotion upon merit and other recognized bases is an important incentive for achievement and continued municipal service and employment.” 351 Pa.Code § 7.7-401, Annot. (Purposes). According to the City, this annotation demonstrates that promotion is the favored method of filling vacancies so that career tracks are created and municipal employees can strive for advancement without fear of being passed over in favor of outside hiring. Examining the context of the rest of Section 7-401, the City argues that the entire provision is dedicated to the manner of hiring, firing, and promoting, rather than to the [J-3-2015] - 10 decision of whether or when to hire, fire, or promote.",
"See 351 Pa.Code § 7.7-401(a) (preparation and creation of position classifications); § 7.7-401(b) (calling for the creation of a pay scale); § 7.7-401(c) (creation of open examinations); § 7.7-401(d) (the establishment of certain preferences in entrance examinations); § 7.7-401(f) (the establishment of promotional lists); § 7.7-401(g) (the rejection of candidates); § 7.7- 401(h) (certification of two candidates for a position); § 7.7-401(i) (identification of employees); § 7.7-401(j) (the establishment of a six month probationary period); § 7.7- 401(n) (performance ratings for employees); § 7.7-401(p) (calling for suspensions that are limited to thirty days); § 7.7-401(q) (discharge or demotion). Taking a broader view of City-wide fiscal responsibility, the City argues that a number of reasons regularly exist that preclude immediate expenditure of budgeted dollars, and the Home Rule Charter gives the Mayor and his Director of Finance unreviewable authority not to spend appropriated funds.",
"See 351 Pa.Code § 8.8-102 (authorizing the Mayor and the Director of Finance not to spend appropriated funds to avoid deficits and as a check on performance); id. § 4.4-101(e) (requiring the Mayor to prevent deficits). Addressing the Civil Service Regulations promulgated in accord with the Home Rule Charter, the City argues that, like the Charter, the regulations contain no requirement that the City immediately fill vacant positions. Rather, they merely address the manner of filling vacancies. Specifically examining the requirement in Regulation 9.021 (providing that unless vacancies are filled by demotion, transfer, reinstatement, or from a layoff list, they “shall be filled so far as practicable” by promotion), the City argues that it mirrors Section 7-401(e) of the Home Rule Charter by establishing a preference for promotion rather than hiring from outside. [J-3-2015] - 11 Further, according to the City, neither the regulations nor the Charter require that a particular promotional list be exhausted before a new list is established, or that promotions must occur before an old list expires.",
"Rather, the City posits that the purpose of expiring a promotional list after two years is to provide employees reasonable opportunity for advancement and to replenish the list periodically with the most competent candidates for promotion. See 351 Pa.Code § 7.7-401(f) (Annon) (“The one year minimum is imposed so that examinees will have a reasonable opportunity for employment. A two year maximum is necessary so that lists shall be replenished periodically with the names of the most competent candidates available for employment.”); Phila. Civil Serv. Reg. 10.071 (“When a more recent list has been established for a class, the Director may determine that a previous non-continuous or periodic list for that class, which is more than one year old, shall be canceled and replaced by the more recently established list, or consolidated. . . .”). Turning to whether promotions are a ministerial act or duty, the City argues that they are not, and asserts that the Commissioner has discretion about when to fill vacancies.",
"According to the City, the Commissioner has discretion to decide whether to spend appropriated funds, to conserve resources for future use, how to apportion funds in the first instance, how many positions are needed, and how to structure his supervisory and management team. The City further asserts that the Commissioner must exercise his own judgment and opinion as to whether a promotion is proper; whether a particular candidate should be promoted, rejected, rejected twice and not considered again, or whether that person should remain in the position following the six- month probationary period. Phila.",
"Civil Serv. Reg. 11.03, 11.04, 11.05, 14.01. Additionally, the City asserts that other City officials have independent review over promotions the Commissioner chooses to make. For example, no promotion [J-3-2015] - 12 becomes final until the candidate is deemed medically fit, Phila. Civil Serv. Reg. 9.1413, 9.1415, 11.033, 11.0331, or until the Director of Human Resources determines that the promotion was in accord with the Civil Service Regulations, id., 11.11, 11.12. Even when a promotion has been anticipated and accounted for in the budget, it must be approved by the Finance Director as being within the City’s finances and appropriations.",
"See 351 Pa.Code. § 6.6-100, 6.6-106, 8.8-102. These approvals require, to some extent, the exercise of discretion which, according to the City, defeats the Union’s entitlement to mandamus relief. Finally, the City argues that the Commonwealth Court’s decision in this case is consistent with prior cases that have held a trial court exceeds its authority and improperly invades a department’s discretion when it orders a city to make promotions from a promotional list. Trosky & Gregorchik v. Civil Service Comm’n v. City of Pittsburgh, 652 A.2d 813, 818-19 (Pa. 1995); Walls.",
"Peremptory judgment in mandamus is an extraordinary remedy utilized “to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy.” Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 430 n.11 (Pa. 1978). A ministerial act is one which a public officer is “required to perform upon a given state of facts and in a prescribed manner in obedience to the mandate of legal authority.” County of Allegheny Deputy Sheriff’s Ass’n v. County of Allegheny, 730 A.2d 1065, 1067-68 (Pa.Cmwlth. 1999). A writ of mandamus cannot issue to “compel performance of a discretionary act or to govern the manner of performing [the] required act.” Fagan v. Smith, 41 A.3d 816, 817 (Pa. 2012). A clear legal right to relief is shown where the right to require performance of the act is clear, Shroyer v. Thomas, 81 A.2d 435, 436 (Pa. 1951), and a corresponding duty is shown [J-3-2015] - 13 where the governing law contains directory language, requiring that an act shall be done.",
"Stork v. Sommers, 630 A.2d 984, 986-87 (Pa.Cmwlth. 1993). A ministerial act admits of “no discretion in the municipal officer[. ]” Llormer v. Bowen, 188 A.2d 747, 750 (Pa. 1963). A want of any other adequate remedy is established where there is no alternative form of relief. Styers v. Wade, 372 A.2d 1236, 1238 (Pa.Cmwlth. 1977). Mindful that mandamus is an extraordinary remedy dependent on a clear legal right in the plaintiff, here, the Union, we agree with the City and the Commonwealth Court that while the Commissioner is required to fill vacancies in the manner prescribed by the Home Rule Charter and the Civil Service Regulations, neither the Charter nor the Regulations speak to the timing of promotions or otherwise create a clear legal right to a promotion. To support its legal right to immediate promotion whenever a vacancy arises, the Union relies on Section 7-401(e) of the Home Rule Charter (“[v]acancies shall be filled by promotion whenever possible.",
". . .”) and Civil Service Regulation 9.021 (“[u]nless vacancies are filled by demotion, transfer, reinstatement, or by certification from a layoff list, they shall be filled so far as practicable by the promotion of permanent employees in the Civil Service.”). These provisions, however, read in isolation or in context, indicate that when vacancies are filled, the City is required to fill them by promotion as opposed to another method of hiring, such as hiring from the outside.",
"Use of the phrases “whenever possible” and “so far as practicable” modify the manner of filling vacancies, i.e., by promotion. They emphasize that the preferred method of doing so is by promotion, and direct that only when promotion is not possible or practicable can the City consider other methods of filling a vacancy. The annotation to Section 7-401(e) of the Home Rule Charter supports this conclusion, providing that promotion is an important incentive for achievement and [J-3-2015] - 14 continued municipal employment. Its emphasis is upon the significance of promotion in municipal employment, rather than on filling vacancies as soon as they arise. Reading Section 7-401(e) together with its annotation establishes that whenever possible the City should prioritize promotion and career advancement of municipal employees when it fills vacancies. Civil Service Regulation 9.021 restates this preference, placing promotion behind demotion, transfer, reinstatement, and from a layoff list as the sanctioned methods for filling vacancies. In addition to failing to establish a clear legal right to relief, the Union has failed to establish a corresponding duty in the City. As established above, neither Section 7- 401(e) of the Home Rule Charter nor Civil Service Regulation 9.021 require the City to fill vacancies immediately, and no other provision of the Charter or regulations imposes such a requirement upon the City. There is no imperative that the City exhaust a promotional list before establishing a new list, or that promotions must occur from a particular list before it expires.",
"Rather, the City is required to expire a list after two years to provide employees “reasonable opportunity for employment” and to replenish lists with “the names of the most competent candidates available for employment.” 351 Pa.Code § 7.7-401(f); Phila. Civil Serv. Reg. 10.071. Moreover, the regulations provide that the City “may” certify and appoint eligible candidates at any time after a list is established until it expires. Phila. Civil Serv. Reg. 10.022. The regulation does not require the City to do so, nor does it contemplate promotion by a certain date. Our conclusion that the Union is not entitled to mandamus relief is consistent with our precedent and that of the Commonwealth Court. In Trosky, two police officers claimed they were improperly removed from a promotional list. 652 A.2d at 813-16. The officers asserted that the only proper remedy was promotion, because the list from which their names had been improperly removed had expired.",
"The trial court agreed [J-3-2015] - 15 and ordered the City of Pittsburgh to promote them. The Commonwealth Court affirmed. Before this Court, the City of Pittsburgh argued that promotion was not the proper remedy because it infringed on the Public Safety Director’s discretion and put the officers in a better position than they would have been in if their names had not been struck. Considering the appropriate remedy, we agreed with the City of Pittsburgh that, given the discretion vested in the Public Safety Director, if the two officers’ names had remained on the promotional list, it was not certain they would have been promoted, as the Public Safety Director could have chosen to pass them over.",
"Id. at 817. We held that the relief ordered by the trial court “had the effect of interfering with the decision- making authority accorded by statute to the Public Safety Director,” who may have exercised his discretion not to promote the two officers, and was ordered “without regard to the administrative consequences of such action.” Id. at 818. We directed the City of Pittsburgh to put the officers back on the promotional list, make promotions in accord with established procedures, and ensure that any unsuccessful candidate was given the opportunity to be placed on the next promotional list by sitting for the required examination. Id. at 820. Trosky therefore recognized the managerial discretion inherent in the timing of making promotions. Moreover, both Commonwealth Court cases relied upon by the Union stand for the unremarkable proposition that the City cannot disregard the civil service regulations. In Walls, the City and a group of civil service applicants agreed to extend a promotional list beyond the two years provided for in the civil service regulations. 646 A.2d at 594. Another group of applicants challenged this decision, arguing that the list expired after two years by operation of law. Id. The trial court agreed, ordering the City to disregard the old list, and to conduct a new promotional examination “forthwith.” Id.",
"at 595. On [J-3-2015] - 16 appeal, the Commonwealth Court examined the Home Rule Charter and the Civil Service Regulations and agreed with the trial court that there was no exception to the two-year mandatory expiration of promotional lists. Id. at 595-96. The Commonwealth Court held, however, that the appropriate remedy was not to order immediate administration of a new promotional exam, because the timing and scheduling of examinations is a matter within the discretion of the Director of Human Resources. Rather, the Commonwealth Court stated that the Director “may now, at any time, reschedule another examination wherein the parties . . . would have the same opportunity to participate and compete.” Id. at 596-97. See also City of Philadelphia, 574 A.2d 126-27 (holding that because the Home Rule Charter requires examinations that test the relative fitness of applicants for the position of police officer, the City’s institution of a new procedure that ranked applicants on an eligibility list in random order was contrary to this requirement and, therefore, legally improper).",
"Because there is no right to be promoted and no requirement that the City make promotions as soon as positions become vacant, the Commonwealth Court properly concluded that the trial court erred in granting mandamus relief to the Union. The order of the Commonwealth Court is affirmed. Mr. Chief Justice Saylor, Mr. Justice Eakin and Madame Justice Todd join the opinion. Mr. Justice Stevens files a concurring opinion. [J-3-2015] - 17"
]
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MEMORANDUM *** Kenneth W. Reed appeals from the district court’s order dismissing his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258. We affirm. First, Reed argues that the trial court violated his Sixth Amendment right to a speedy trial. Reed did not raise this claim in the Arizona Court of Appeals, however, so the district court correctly concluded that his claim was proeedurally defaulted. Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir.2005). The fact that the Arizona Court of Appeals complied with Reed’s general request to “search the record for fundamental error” was not sufficient to exhaust the claim. See id. at 999. Moreover, Reed has not demonstrated cause and prejudice or “a fundamental miscarriage of justice” sufficient to excuse his procedural default. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In addition, he has not shown that there is any substantive merit to his speedy trial claim. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (listing four-part test for speedy trial violation). Second, Reed argues that the trial court violated his right to self-representation under the Sixth Amendment and his right to access the courts under the Fifth and Fourteenth Amendments, by denying him access to adequate legal resources. Reed has not shown that the decision of the Arizona Court of Appeals rejecting his argument on this issue was contrary to, or an unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d). The Supreme Court has never established a clear Sixth Amendment right of access to legal materials for pro se defendants. See Kane v. Garcia Espitia, 546 U.S. 9, 10, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005) (per curiam). With respect to Reed’s related claims under the Fifth and Fourteenth Amendments, the district court correctly concluded that he failed to allege any specific injury or prejudice arising out of the allegedly deficient legal resources. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 *985(1996). Finally, the district court correctly held that Reed’s waiver of counsel claim was procedurally defaulted, because he did not raise it at the state court level. Castillo, 399 F.3d at 1000. Third, Reed argues that the trial court erred in allowing the introduction of evidence of his involvement in a separate robbery of a Best Buy store. In order to successfully challenge the trial court’s evidentiary decision through a federal habeas petition, Reed must show a denial of due process. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Reed has not made this showing because there were many permissible inferences that the jury could draw from his involvement in the robbery. See Leavitt v. Arave, 383 F.3d 809, 829 (9th Cir.2004) (holding that due process is violated if evidence of prior bad acts “goes only to character and there are no permissible inferences the jury may draw from it” (internal quotation marks omitted)). Fourth, Reed argues that his right to testify was violated because the prosecution expressed an intention to impeach him with his prior convictions and the court refused Reed’s pre-trial request to challenge those convictions. The Arizona Court of Appeals rejected this argument on the ground that even if Reed was discouraged from testifying, his right to testify was not violated because impeachment by prior felony convictions would have been entirely proper. On appeal, Reed does not contend that this decision was contrary to or an unreasonable application of federal law. His general arguments based on Arizona statutory law are not sufficient to support a claim for federal habeas relief. 28 U.S.C. § 2254(d). Fifth, Reed challenges the constitutionality of his sentence. He has offered no clearly established federal law, however, to support his argument that the imposition of two consecutive 21-year sentences violates the Eighth Amendment. Reed’s argument under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), likewise fails. Reed concedes that Apprendi does not apply retroactively to his case. Furthermore, he may not rely on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to extend temporally the reach of Apprendi to cover the date of his sentencing. See Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 864, 166 L.Ed.2d 856 (2007). Sixth, Reed argues that he was subject to excessive pre-indictment delay. The Arizona Court of Appeals rejected this argument, and Reed has not shown that the court’s decision was contrary to or an unreasonable application of clearly established federal law. In fact, the Supreme Court has specifically declined to create a definitive test for determining when preindictment delay violates due process. United States v. Lovasco, 431 U.S. 783, 796-97, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Moreover, because Reed did not demonstrate reasonable diligence in developing the factual record in his state proceedings, we also reject his argument that the district court should have provided him a hearing on the issue of pre-indictment delay. Williams v. Taylor, 529 U.S. 420, 434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Seventh, Reed argues that his appellate counsel provided ineffective assistance by improperly filing an Anders brief without reviewing all of the transcripts and material from his file. Reed has pointed to no specific evidence contained in these allegedly missing files, nor has he demon*986strated any claims to which these files may have given rise. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Furthermore, even if Reed could show deficient performance by his attorney, he has not demonstrated prejudice as he has not shown a reasonable likelihood that he would have succeeded on appeal if his attorney had accessed the allegedly missing materials. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Reed’s complaints about the performance of his arraignment attorney likewise fail. At most, Reed faults his attorney for a “tactical decision” not to request immediate trial, and such decisions “cannot form the basis for a claim of ineffective assistance of counsel.” Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001). Finally, Reed argues that he was denied a right to meaningful appeal because the Arizona Court of Appeals failed to review his entire underlying record on appeal. The district court properly held this argument procedurally defaulted, because Reed was required to pursue any claims of judicial misconduct through a petition for review to the Arizona Supreme Court. In addition, because Reed had no constitutional right to effective assistance of counsel in a discretionary appeal, his attorney’s failure to raise the issue on appeal is not “cause” to excuse procedural default. See Smith v. Idaho, 392 F.3d 350, 356-57 (9th Cir.2004). AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 11-24-2022 | [
"MEMORANDUM *** Kenneth W. Reed appeals from the district court’s order dismissing his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258. We affirm. First, Reed argues that the trial court violated his Sixth Amendment right to a speedy trial. Reed did not raise this claim in the Arizona Court of Appeals, however, so the district court correctly concluded that his claim was proeedurally defaulted. Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir.2005). The fact that the Arizona Court of Appeals complied with Reed’s general request to “search the record for fundamental error” was not sufficient to exhaust the claim. See id.",
"at 999. Moreover, Reed has not demonstrated cause and prejudice or “a fundamental miscarriage of justice” sufficient to excuse his procedural default. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In addition, he has not shown that there is any substantive merit to his speedy trial claim. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (listing four-part test for speedy trial violation). Second, Reed argues that the trial court violated his right to self-representation under the Sixth Amendment and his right to access the courts under the Fifth and Fourteenth Amendments, by denying him access to adequate legal resources. Reed has not shown that the decision of the Arizona Court of Appeals rejecting his argument on this issue was contrary to, or an unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d). The Supreme Court has never established a clear Sixth Amendment right of access to legal materials for pro se defendants.",
"See Kane v. Garcia Espitia, 546 U.S. 9, 10, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005) (per curiam). With respect to Reed’s related claims under the Fifth and Fourteenth Amendments, the district court correctly concluded that he failed to allege any specific injury or prejudice arising out of the allegedly deficient legal resources. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 *985(1996). Finally, the district court correctly held that Reed’s waiver of counsel claim was procedurally defaulted, because he did not raise it at the state court level. Castillo, 399 F.3d at 1000. Third, Reed argues that the trial court erred in allowing the introduction of evidence of his involvement in a separate robbery of a Best Buy store. In order to successfully challenge the trial court’s evidentiary decision through a federal habeas petition, Reed must show a denial of due process.",
"Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Reed has not made this showing because there were many permissible inferences that the jury could draw from his involvement in the robbery. See Leavitt v. Arave, 383 F.3d 809, 829 (9th Cir.2004) (holding that due process is violated if evidence of prior bad acts “goes only to character and there are no permissible inferences the jury may draw from it” (internal quotation marks omitted)). Fourth, Reed argues that his right to testify was violated because the prosecution expressed an intention to impeach him with his prior convictions and the court refused Reed’s pre-trial request to challenge those convictions.",
"The Arizona Court of Appeals rejected this argument on the ground that even if Reed was discouraged from testifying, his right to testify was not violated because impeachment by prior felony convictions would have been entirely proper. On appeal, Reed does not contend that this decision was contrary to or an unreasonable application of federal law. His general arguments based on Arizona statutory law are not sufficient to support a claim for federal habeas relief. 28 U.S.C. § 2254(d). Fifth, Reed challenges the constitutionality of his sentence. He has offered no clearly established federal law, however, to support his argument that the imposition of two consecutive 21-year sentences violates the Eighth Amendment. Reed’s argument under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.",
"2348, 147 L.Ed.2d 435 (2000), likewise fails. Reed concedes that Apprendi does not apply retroactively to his case. Furthermore, he may not rely on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to extend temporally the reach of Apprendi to cover the date of his sentencing. See Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 864, 166 L.Ed.2d 856 (2007). Sixth, Reed argues that he was subject to excessive pre-indictment delay. The Arizona Court of Appeals rejected this argument, and Reed has not shown that the court’s decision was contrary to or an unreasonable application of clearly established federal law.",
"In fact, the Supreme Court has specifically declined to create a definitive test for determining when preindictment delay violates due process. United States v. Lovasco, 431 U.S. 783, 796-97, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Moreover, because Reed did not demonstrate reasonable diligence in developing the factual record in his state proceedings, we also reject his argument that the district court should have provided him a hearing on the issue of pre-indictment delay. Williams v. Taylor, 529 U.S. 420, 434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Seventh, Reed argues that his appellate counsel provided ineffective assistance by improperly filing an Anders brief without reviewing all of the transcripts and material from his file. Reed has pointed to no specific evidence contained in these allegedly missing files, nor has he demon*986strated any claims to which these files may have given rise.",
"Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Furthermore, even if Reed could show deficient performance by his attorney, he has not demonstrated prejudice as he has not shown a reasonable likelihood that he would have succeeded on appeal if his attorney had accessed the allegedly missing materials. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.",
"2052, 80 L.Ed.2d 674 (1984). Reed’s complaints about the performance of his arraignment attorney likewise fail. At most, Reed faults his attorney for a “tactical decision” not to request immediate trial, and such decisions “cannot form the basis for a claim of ineffective assistance of counsel.” Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001). Finally, Reed argues that he was denied a right to meaningful appeal because the Arizona Court of Appeals failed to review his entire underlying record on appeal. The district court properly held this argument procedurally defaulted, because Reed was required to pursue any claims of judicial misconduct through a petition for review to the Arizona Supreme Court. In addition, because Reed had no constitutional right to effective assistance of counsel in a discretionary appeal, his attorney’s failure to raise the issue on appeal is not “cause” to excuse procedural default.",
"See Smith v. Idaho, 392 F.3d 350, 356-57 (9th Cir.2004). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8671816/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims status: the claims are unchanged.
Response to Arguments Applicant’s arguments, have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly found prior arts.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 8-12, 21, 25-26, 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016). Regarding claim 1, Roth et al. disclose: an actuator configured to move the plurality of X-ray detectors to a plurality of positions (para. [0297], [0366], fig.6G), wherein the image sensor is configured to capture, by using the detectors, images of portions of a scene at the positions, respectively. Roth et al. are silent about: the image sensor is configured are configured to form an image of the scene by stitching the images of the portions. In a further embodiment, Kim discloses: the image sensor is configured are configured to form an image of the scene by stitching the images of the portions (para. [0019]) motivated by the benefits for faster image acquisition (Kim para. [0060]). In light of the benefits for faster image acquisition as taught by Kim, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the apparatus of Roth et al. with the teachings of Kim Regarding claim 8, Roth et al. disclose: the actuator comprises a robotic arm (para. [0234], [0297]). Regarding claim 9, Roth et al. disclose: at least some of the plurality of X-ray detectors comprise multiple layers of detectors (para. [0234]). Regarding claim 10, Roth et al. disclose: at least some of the plurality of X-ray detectors are rectangular in shape (para. [0187]). Regarding claim 11, Roth et al. disclose: at least some of the plurality of X-ray detectors are rectangular in shape (para. [0187]). Roth et al. are silent about: at least some of the plurality of X-ray detectors are hexagonal in shape. However, it would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to have hexagonal detectors, since it has been held that a mere change in shape of an element is generally recognized as being within the level of ordinary skill in the art when the change in shape is not significant to the function of the combination, In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). Regarding claim 12, Roth et al. disclose: the actuator comprises a control unit configured to determine the positions (para. [0074], [0364]). Regarding claim 21, Roth et al. disclose: an X-ray source, wherein the system is configured to perform X-ray radiography on human chest or abdomen (para. [0406]). Regarding claim 25, Roth et al. disclose: a full-body scanner system comprising the image sensor of claim 1 and an X-ray source (para. [0407], [0410]). Regarding claim 26, Roth et al. disclose: an X-ray computed tomography (X-ray CT) system comprising the image sensor of claim 1 and an X-ray source (para. [0410]). Regarding claim 29, Minnigh et al. disclose: taking a first image of a first portion of the scene by positioning the X-ray detectors to a first position (fig.4 detector 40 is moved to different positon to take images of a standing patient, para. [0057]-[0064]); taking a second image of a second portion of the scene by positioning the X-ray detectors to a second position (fig.4 detector 40 is moved to different positon to take images of a standing patient, para. [0057]-[0064]); forming the image of the scene by (para. [0061]) motivated by the benefits for creation of composite images (Minnigh et al. para. [0029]). Regarding claim 30, Minnigh et al. disclose: the first and the second images have a spatial overlap (para. [0050]) motivated by the benefits for creation of composite images (Minnigh et al. para. [0029]). Regarding claim 31, Minnigh et al. disclose: the image sensor further comprises a collimator (para. [0029] L15-17); wherein the method further comprises positioning the collimator before taking the first and the second images motivated by the benefits for creation of composite images (Minnigh et al. para. [0029]).
Claims 2, 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Wear et al. (US 2014/0064446 A1; pub. Mar. 6, 2014). Regarding claim 2, the combined references are silent about: the plurality of X-ray detectors are spaced apart. In a similar field of endeavor, Wear et al. discloses: the plurality of X-ray detectors are spaced apart (para. [0067]) motivated by the benefits for improve image resolution (Wear et al. para. [0067]). In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim. Regarding claim 5, the combined references are silent about: at least some of the plurality of X-ray detectors are arranged in staggered rows and on a plane perpendicular to a direction of some radiations used in the capture of the images of the portions. In a similar field of endeavor, Wear et al. disclose: at least some of the plurality of X-ray detectors are arranged in staggered rows and on a plane perpendicular to a direction of some radiations (para. [0067]) motivated by the benefits for improve image resolution (Wear et al. para. [0067]). In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim. Regarding claim 6, Wear et al. disclose: X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is not uniform (fig.12-fi.g13) motivated by the benefits for improve image resolution (Wear et al. para. [0067]). Wear et al. are silent about: X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is greater than a width of one X-ray detector in the same row in an extending direction of the row and is less than twice that width. However, Wear et al. disclose in fig.12-fig.13 X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row can be varied. Therefore, it would have been obvious to one ordinary skill in the art to have X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is greater than a width of one X-ray detector in the same row in an extending direction of the row and is less than twice that width since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art, In re Aller, 105 USPQ 233 (C.C.P.A. 1955). Regarding claim 7, the combined references are silent about: active areas of the X-ray detectors tessellate the scene at the positions. In a similar field of endeavor, Wear et al. disclose: active areas of the X-ray detectors tessellate the scene at the positions (para. [0067], fig.12-13, tessellation is also known as staggering/mosaic) motivated by the benefits for improve image resolution (Wear et al. In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Yamakawa et al. (US 6,236,051 B1; pub. May 22, 2001). Regarding claim 3, the combined references are silent about: an collimator with a plurality of X-ray transmitting zones and an X-ray blocking zone; wherein the X-ray blocking zone is configured to block X-ray that would otherwise incident on a dead zone of the image sensor, and the X-ray transmitting zones are configured to allow at least a portion of X-ray that would incident on active areas of the image sensor. In a similar field of endeavor, Yamakawa et al. discloses: an collimator with a plurality of X-ray transmitting zones and an X-ray blocking zone; wherein the X-ray blocking zone is configured to block X-ray that would otherwise incident on a dead zone of the image sensor, and the X-ray transmitting zones are configured to allow at least a portion of X-ray that would incident on active areas of the image sensor (col.10 L48-60) motivated by the benefits to minimize the sensitivity loss and increase the effective performance of the detector (Yamakawa et al. col.10 L59-60). In light of the benefits to minimize the sensitivity loss and increase the effective performance of the detector as taught by Yamakawa et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the collimation of Yamakawa et al. in the detector of Roth et al. and Kim. Regarding claim 4, Roth et al. disclose: the actuator is configured to move the collimator such that an alignment of the X-ray detectors with the X-ray transmitting zones and the X-ray blocking zone is maintained at the positions (para. [0196], fig.6G teaches detector heads mounted on the actuator, para. [0297]).
Claims 13, 15-17, 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Steadman Booker et al. (US 2010/0020924 A1; pub. Jan. 28, 2010). Regarding claim 13, the combined references are silent about: at least one of the plurality of X-ray detectors comprises an X-ray absorption layer and an electronics layer; wherein the X-ray absorption layer comprises an electrode; wherein the electronics layer comprises an electronics system; wherein the electronics system comprises: a first voltage comparator configured to compare a voltage of the electrode to a first threshold, a second voltage comparator configured to compare the voltage to a second threshold, a counter configured to register a number of X-ray photons reaching the X-ray absorption layer, and a controller; wherein the controller is configured to start a time delay from a time at which the first voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the first threshold; wherein the controller is configured to activate the second voltage comparator during the time delay; wherein the controller is configured to cause the number registered by the counter to increase by one, if the second voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the second threshold. In a similar field of endeavor, Steadman Booker et al. disclose: at least one of the plurality of X-ray detectors (para. [0011], fig.6 item 16, although only one sensor is illustrated, the teaching of para. [0011] that the apparatus is for Computed Tomography, it is known to use detector arrays in a CT system) comprises an X-ray absorption layer and an electronics layer (para. [0011]); wherein the X-ray absorption layer comprises an electrode (para. [0011] teaches CdZnTe detector, CdZnTe detectors have electrodes); wherein the electronics layer comprises an electronics system; wherein the electronics system comprises: a first voltage comparator (fig.6 item 20) configured to compare a voltage of the electrode to a first threshold (fig.6 item TH1), a second voltage comparator (fig.6 item 70) configured to compare the voltage to a second threshold (fig.6 item TH2), a counter configured to register a number of X-ray photons reaching the X-ray absorption layer (para. [0034]), and a controller (fig.6 item 90); wherein the controller is configured to start a time delay from a time at which the first voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the first threshold (para. [0047]); wherein the controller is configured to activate the second voltage comparator during the time delay (para. [0047]); wherein the controller is configured to cause the number registered by the counter to increase by one, if the second voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the second threshold (para. [0042], [0049], fig.6 items 22 & 72) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). In light of the benefits for improved counting performance as taught by Steadman Booker et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the counting configuration of Steadman Booker et al. in the detector of Roth et al. and Kim. Regarding claim 15, Steadman Booker et al. disclose: the controller is configured to activate the second voltage comparator at a beginning or expiration of the time delay (para. [0100]) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). Regarding claim 16, Steadman Booker et al. disclose: the electronics system further comprises a voltmeter, wherein the controller is configured to cause the voltmeter to measure the voltage upon expiration of the time delay (fig.4) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). Regarding claim 17, Steadman Booker et al. disclose: the controller is configured to determine an X-ray photon energy based on a value of the voltage measured upon expiration of the time delay (the claim is rejected on the same basis as claim 13) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). Regarding claim 19, Steadman Booker et al. disclose: a rate of change of the voltage is substantially zero at expiration of the time delay (when the device is turned off) motivated by the benefits for improved counting performance (Steadman Booker et al. Regarding claim 20, Steadman Booker et al. disclose: a rate of change of the voltage is substantially non-zero (fig.4) at expiration of the time delay (para. [0099]-[0100]) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Steadman Booker et al. (US 2010/0020924 A1; pub. Jan. 28, 2010) and further in view of Vora (US 2016/0099282 Al; pub. Apr. 7, 2016). Regarding claim 14, the combined references are silent about: the first X-ray detector further comprises a capacitor module electrically connected to the electrode, wherein the capacitor module is configured to collect charge carriers from the electrode. In a similar field of endeavor, Vora discloses: the first X-ray detector further comprises a capacitor module electrically connected to the electrode, wherein the capacitor module is configured to collect charge carriers from the electrode (para. [0216], [0224]) with benefits for very high image quality (Vora para. [0068]). In light of the benefits for very high image quality as taught by Vora, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the combined detector of Roth et al., Kim and Steadman Booker et al. using the teachings of Vora.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Steadman Booker et al. (US 2010/0020924 A1; pub. Jan. 28, 2010) and further in view of Chandra (US 2009/0046913 A1; Feb. 19, 2009). Regarding claim 18, In a similar field of endeavor, Chandra discloses: the controller is configured to connect the electrode to an electrical ground (para. [0054]) with benefits for resetting mode (Chandra para. [0054]). In light of the benefits for resetting mode as taught by Chandra, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the combined detector of Roth et al., Kim, and Steadman Booker et al. using the teachings of Chandra.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Suzuki et al. (US 2005/0117696 Al; pub. Jun. 2, 2005). Regarding claim 22, the combined references are silent about: the system is configured to perform X-ray radiography on human mouth. In a similar field of endeavor, Suzuki et al. disclose: the system is configured to perform X-ray radiography on human mouth (para. [0086], [0119]) with benefits for an image without blur for accurate diagnostic (Suzuki et al. para. [0029]). In light of the benefits for an image without blur for accurate diagnostic as taught Suzuki et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Suzuki et al.
Claims 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Smith (US 2012/0307967 Al; pub. Dec. 6, 2012). Regarding claim 23, the combined references are silent about: a non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using backscattered X-ray. In a similar field of endeavor, Smith discloses: a non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using backscattered X-ray (para. [0030], [0047]) with benefits for reduced size detector that produces improved screening digital images (Smith para. [0012]). In light of the benefits for reduced size detector that produces improved screening digital images as taught Smith, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Smith. Regarding claim 24, the combined references are silent about: non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using X-ray transmitted through an object inspected. In a similar field of endeavor, Smith discloses: non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using X-ray transmitted through an object inspected (para. [0030], [0047]) with benefits for reduced size detector that produces improved screening digital images (Smith para. [0012]). In light of the benefits for reduced size detector that produces improved screening digital images as taught Smith, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Smith.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Rosner (US 2003/0095631 Al; pub. May 22, 2003). Regarding claim 27, the combined references are silent about: an electron microscope comprising the X-ray imaging system of claim 1, an electron source and an electronic optical system. In a similar field of endeavor, Rosner discloses: an electron microscope comprising the X-ray imaging system of claim 1, an electron source and an electronic optical system (para. [0012], [0015]) with benefits for a reliable, efficient and cost effective detector (Rosner para. [0008]). In light of the benefits for a reliable, efficient and cost effective detector as taught Rosner, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Rosner.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Seppi et al. (US 2005/0084073 Al; pub. Apr. 21, 2005). Regarding claim 28, the combined references are silent about: the system is an X-ray telescope, or an X-ray microscopy, or wherein the system is configured to perform mammography, industrial defect detection, microradiography, casting inspection, weld inspection, or digital subtraction angiography. In a similar field of endeavor, Seppi et al. discloses: the system is an X-ray telescope, or an X-ray microscopy, or wherein the system is configured to perform mammography, industrial defect detection, microradiography, casting inspection, weld inspection, or digital subtraction angiography (para. [0005], [0037]) with benefits for a scalable detector (Seppi et al. para. [0090]). In light of the benefits for a scalable detector as taught Seppi et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Seppi et al.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAMADOU FAYE whose telephone number is (571)270-0371. The examiner can normally be reached Mon-Fri 9-6PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dave Porta can be reached on 571-272-2444. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MAMADOU FAYE/Examiner, Art Unit 2884 | 2021-03-09T12:59:48 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims status: the claims are unchanged. Response to Arguments Applicant’s arguments, have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly found prior arts. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.",
"The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary.",
"Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1, 8-12, 21, 25-26, 29-31 are rejected under 35 U.S.C.",
"103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016). Regarding claim 1, Roth et al. disclose: an actuator configured to move the plurality of X-ray detectors to a plurality of positions (para. [0297], [0366], fig.6G), wherein the image sensor is configured to capture, by using the detectors, images of portions of a scene at the positions, respectively. Roth et al. are silent about: the image sensor is configured are configured to form an image of the scene by stitching the images of the portions.",
"In a further embodiment, Kim discloses: the image sensor is configured are configured to form an image of the scene by stitching the images of the portions (para. [0019]) motivated by the benefits for faster image acquisition (Kim para. [0060]). In light of the benefits for faster image acquisition as taught by Kim, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the apparatus of Roth et al. with the teachings of Kim Regarding claim 8, Roth et al. disclose: the actuator comprises a robotic arm (para.",
"[0234], [0297]). Regarding claim 9, Roth et al. disclose: at least some of the plurality of X-ray detectors comprise multiple layers of detectors (para. [0234]). Regarding claim 10, Roth et al. disclose: at least some of the plurality of X-ray detectors are rectangular in shape (para. [0187]). Regarding claim 11, Roth et al. disclose: at least some of the plurality of X-ray detectors are rectangular in shape (para. [0187]). Roth et al. are silent about: at least some of the plurality of X-ray detectors are hexagonal in shape. However, it would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to have hexagonal detectors, since it has been held that a mere change in shape of an element is generally recognized as being within the level of ordinary skill in the art when the change in shape is not significant to the function of the combination, In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).",
"Regarding claim 12, Roth et al. disclose: the actuator comprises a control unit configured to determine the positions (para. [0074], [0364]). Regarding claim 21, Roth et al. disclose: an X-ray source, wherein the system is configured to perform X-ray radiography on human chest or abdomen (para. [0406]). Regarding claim 25, Roth et al. disclose: a full-body scanner system comprising the image sensor of claim 1 and an X-ray source (para. [0407], [0410]). Regarding claim 26, Roth et al. disclose: an X-ray computed tomography (X-ray CT) system comprising the image sensor of claim 1 and an X-ray source (para. [0410]). Regarding claim 29, Minnigh et al. disclose: taking a first image of a first portion of the scene by positioning the X-ray detectors to a first position (fig.4 detector 40 is moved to different positon to take images of a standing patient, para.",
"[0057]-[0064]); taking a second image of a second portion of the scene by positioning the X-ray detectors to a second position (fig.4 detector 40 is moved to different positon to take images of a standing patient, para. [0057]-[0064]); forming the image of the scene by (para. [0061]) motivated by the benefits for creation of composite images (Minnigh et al. para. [0029]). Regarding claim 30, Minnigh et al. disclose: the first and the second images have a spatial overlap (para. [0050]) motivated by the benefits for creation of composite images (Minnigh et al.",
"para. [0029]). Regarding claim 31, Minnigh et al. disclose: the image sensor further comprises a collimator (para. [0029] L15-17); wherein the method further comprises positioning the collimator before taking the first and the second images motivated by the benefits for creation of composite images (Minnigh et al. para. [0029]). Claims 2, 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Wear et al. (US 2014/0064446 A1; pub.",
"Mar. 6, 2014). Regarding claim 2, the combined references are silent about: the plurality of X-ray detectors are spaced apart. In a similar field of endeavor, Wear et al. discloses: the plurality of X-ray detectors are spaced apart (para. [0067]) motivated by the benefits for improve image resolution (Wear et al. para. [0067]). In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim. Regarding claim 5, the combined references are silent about: at least some of the plurality of X-ray detectors are arranged in staggered rows and on a plane perpendicular to a direction of some radiations used in the capture of the images of the portions. In a similar field of endeavor, Wear et al. disclose: at least some of the plurality of X-ray detectors are arranged in staggered rows and on a plane perpendicular to a direction of some radiations (para. [0067]) motivated by the benefits for improve image resolution (Wear et al. para. [0067]).",
"In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim. Regarding claim 6, Wear et al. disclose: X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is not uniform (fig.12-fi.g13) motivated by the benefits for improve image resolution (Wear et al. para. [0067]). Wear et al. are silent about: X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is greater than a width of one X-ray detector in the same row in an extending direction of the row and is less than twice that width. However, Wear et al. disclose in fig.12-fig.13 X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row can be varied. Therefore, it would have been obvious to one ordinary skill in the art to have X-ray detectors in a same row are uniform in size wherein a distance between two neighboring X-ray detectors in a same row is greater than a width of one X-ray detector in the same row in an extending direction of the row and is less than twice that width since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art, In re Aller, 105 USPQ 233 (C.C.P.A.",
"1955). Regarding claim 7, the combined references are silent about: active areas of the X-ray detectors tessellate the scene at the positions. In a similar field of endeavor, Wear et al. disclose: active areas of the X-ray detectors tessellate the scene at the positions (para. [0067], fig.12-13, tessellation is also known as staggering/mosaic) motivated by the benefits for improve image resolution (Wear et al. In light of the benefits for improve image resolution as taught by Wear et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the detector configuration of Wear et al. in the detector of Roth et al. and Kim.",
"Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Yamakawa et al. (US 6,236,051 B1; pub. May 22, 2001). Regarding claim 3, the combined references are silent about: an collimator with a plurality of X-ray transmitting zones and an X-ray blocking zone; wherein the X-ray blocking zone is configured to block X-ray that would otherwise incident on a dead zone of the image sensor, and the X-ray transmitting zones are configured to allow at least a portion of X-ray that would incident on active areas of the image sensor. In a similar field of endeavor, Yamakawa et al. discloses: an collimator with a plurality of X-ray transmitting zones and an X-ray blocking zone; wherein the X-ray blocking zone is configured to block X-ray that would otherwise incident on a dead zone of the image sensor, and the X-ray transmitting zones are configured to allow at least a portion of X-ray that would incident on active areas of the image sensor (col.10 L48-60) motivated by the benefits to minimize the sensitivity loss and increase the effective performance of the detector (Yamakawa et al. col.10 L59-60). In light of the benefits to minimize the sensitivity loss and increase the effective performance of the detector as taught by Yamakawa et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the collimation of Yamakawa et al.",
"in the detector of Roth et al. and Kim. Regarding claim 4, Roth et al. disclose: the actuator is configured to move the collimator such that an alignment of the X-ray detectors with the X-ray transmitting zones and the X-ray blocking zone is maintained at the positions (para. [0196], fig.6G teaches detector heads mounted on the actuator, para. [0297]). Claims 13, 15-17, 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub.",
"Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) and further in view of Steadman Booker et al. (US 2010/0020924 A1; pub. Jan. 28, 2010). Regarding claim 13, the combined references are silent about: at least one of the plurality of X-ray detectors comprises an X-ray absorption layer and an electronics layer; wherein the X-ray absorption layer comprises an electrode; wherein the electronics layer comprises an electronics system; wherein the electronics system comprises: a first voltage comparator configured to compare a voltage of the electrode to a first threshold, a second voltage comparator configured to compare the voltage to a second threshold, a counter configured to register a number of X-ray photons reaching the X-ray absorption layer, and a controller; wherein the controller is configured to start a time delay from a time at which the first voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the first threshold; wherein the controller is configured to activate the second voltage comparator during the time delay; wherein the controller is configured to cause the number registered by the counter to increase by one, if the second voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the second threshold.",
"In a similar field of endeavor, Steadman Booker et al. disclose: at least one of the plurality of X-ray detectors (para. [0011], fig.6 item 16, although only one sensor is illustrated, the teaching of para. [0011] that the apparatus is for Computed Tomography, it is known to use detector arrays in a CT system) comprises an X-ray absorption layer and an electronics layer (para. [0011]); wherein the X-ray absorption layer comprises an electrode (para. [0011] teaches CdZnTe detector, CdZnTe detectors have electrodes); wherein the electronics layer comprises an electronics system; wherein the electronics system comprises: a first voltage comparator (fig.6 item 20) configured to compare a voltage of the electrode to a first threshold (fig.6 item TH1), a second voltage comparator (fig.6 item 70) configured to compare the voltage to a second threshold (fig.6 item TH2), a counter configured to register a number of X-ray photons reaching the X-ray absorption layer (para.",
"[0034]), and a controller (fig.6 item 90); wherein the controller is configured to start a time delay from a time at which the first voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the first threshold (para. [0047]); wherein the controller is configured to activate the second voltage comparator during the time delay (para. [0047]); wherein the controller is configured to cause the number registered by the counter to increase by one, if the second voltage comparator determines that an absolute value of the voltage equals or exceeds an absolute value of the second threshold (para. [0042], [0049], fig.6 items 22 & 72) motivated by the benefits for improved counting performance (Steadman Booker et al.",
"para. [0010]). In light of the benefits for improved counting performance as taught by Steadman Booker et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to use the counting configuration of Steadman Booker et al. in the detector of Roth et al. and Kim. Regarding claim 15, Steadman Booker et al. disclose: the controller is configured to activate the second voltage comparator at a beginning or expiration of the time delay (para. [0100]) motivated by the benefits for improved counting performance (Steadman Booker et al. para.",
"[0010]). Regarding claim 16, Steadman Booker et al. disclose: the electronics system further comprises a voltmeter, wherein the controller is configured to cause the voltmeter to measure the voltage upon expiration of the time delay (fig.4) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). Regarding claim 17, Steadman Booker et al. disclose: the controller is configured to determine an X-ray photon energy based on a value of the voltage measured upon expiration of the time delay (the claim is rejected on the same basis as claim 13) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]).",
"Regarding claim 19, Steadman Booker et al. disclose: a rate of change of the voltage is substantially zero at expiration of the time delay (when the device is turned off) motivated by the benefits for improved counting performance (Steadman Booker et al. Regarding claim 20, Steadman Booker et al. disclose: a rate of change of the voltage is substantially non-zero (fig.4) at expiration of the time delay (para. [0099]-[0100]) motivated by the benefits for improved counting performance (Steadman Booker et al. para. [0010]). Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Steadman Booker et al.",
"(US 2010/0020924 A1; pub. Jan. 28, 2010) and further in view of Vora (US 2016/0099282 Al; pub. Apr. 7, 2016). Regarding claim 14, the combined references are silent about: the first X-ray detector further comprises a capacitor module electrically connected to the electrode, wherein the capacitor module is configured to collect charge carriers from the electrode. In a similar field of endeavor, Vora discloses: the first X-ray detector further comprises a capacitor module electrically connected to the electrode, wherein the capacitor module is configured to collect charge carriers from the electrode (para. [0216], [0224]) with benefits for very high image quality (Vora para. [0068]).",
"In light of the benefits for very high image quality as taught by Vora, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the combined detector of Roth et al., Kim and Steadman Booker et al. using the teachings of Vora. Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Steadman Booker et al. (US 2010/0020924 A1; pub. Jan. 28, 2010) and further in view of Chandra (US 2009/0046913 A1; Feb. 19, 2009). Regarding claim 18, In a similar field of endeavor, Chandra discloses: the controller is configured to connect the electrode to an electrical ground (para. [0054]) with benefits for resetting mode (Chandra para.",
"[0054]). In light of the benefits for resetting mode as taught by Chandra, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the combined detector of Roth et al., Kim, and Steadman Booker et al. using the teachings of Chandra. Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Suzuki et al. (US 2005/0117696 Al; pub.",
"Jun. 2, 2005). Regarding claim 22, the combined references are silent about: the system is configured to perform X-ray radiography on human mouth. In a similar field of endeavor, Suzuki et al. disclose: the system is configured to perform X-ray radiography on human mouth (para. [0086], [0119]) with benefits for an image without blur for accurate diagnostic (Suzuki et al. para. [0029]). In light of the benefits for an image without blur for accurate diagnostic as taught Suzuki et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Suzuki et al. Claims 23-24 are rejected under 35 U.S.C.",
"103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Smith (US 2012/0307967 Al; pub. Dec. 6, 2012). Regarding claim 23, the combined references are silent about: a non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using backscattered X-ray. In a similar field of endeavor, Smith discloses: a non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using backscattered X-ray (para. [0030], [0047]) with benefits for reduced size detector that produces improved screening digital images (Smith para. [0012]). In light of the benefits for reduced size detector that produces improved screening digital images as taught Smith, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al.",
"and Kim using the teachings of Smith. Regarding claim 24, the combined references are silent about: non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using X-ray transmitted through an object inspected. In a similar field of endeavor, Smith discloses: non-intrusive inspection (Nil) system, comprising the X-ray imaging system of claim 1 and an X-ray source, wherein the cargo scanning or non-intrusive inspection (Nil) system is configured to form an image using X-ray transmitted through an object inspected (para. [0030], [0047]) with benefits for reduced size detector that produces improved screening digital images (Smith para.",
"[0012]). In light of the benefits for reduced size detector that produces improved screening digital images as taught Smith, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Smith. Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Rosner (US 2003/0095631 Al; pub. May 22, 2003). Regarding claim 27, the combined references are silent about: an electron microscope comprising the X-ray imaging system of claim 1, an electron source and an electronic optical system. In a similar field of endeavor, Rosner discloses: an electron microscope comprising the X-ray imaging system of claim 1, an electron source and an electronic optical system (para. [0012], [0015]) with benefits for a reliable, efficient and cost effective detector (Rosner para.",
"[0008]). In light of the benefits for a reliable, efficient and cost effective detector as taught Rosner, it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Rosner. Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Roth et al. (US 2015/0119704 A1; pub. Apr. 30, 2015) in view of Kim (US 2016/0310098 A1; pub. Oct. 27, 2016) in view of Seppi et al. (US 2005/0084073 Al; pub.",
"Apr. 21, 2005). Regarding claim 28, the combined references are silent about: the system is an X-ray telescope, or an X-ray microscopy, or wherein the system is configured to perform mammography, industrial defect detection, microradiography, casting inspection, weld inspection, or digital subtraction angiography. In a similar field of endeavor, Seppi et al. discloses: the system is an X-ray telescope, or an X-ray microscopy, or wherein the system is configured to perform mammography, industrial defect detection, microradiography, casting inspection, weld inspection, or digital subtraction angiography (para. [0005], [0037]) with benefits for a scalable detector (Seppi et al. para. [0090]). In light of the benefits for a scalable detector as taught Seppi et al., it would have been obvious to one of ordinary skill in the art at the filing date of the claimed invention to modify the detector of Roth et al. and Kim using the teachings of Seppi et al. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAMADOU FAYE whose telephone number is (571)270-0371.",
"The examiner can normally be reached Mon-Fri 9-6PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dave Porta can be reached on 571-272-2444. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /MAMADOU FAYE/Examiner, Art Unit 2884"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Parsons, C. J. The admission of paroi evidence by the judge to prove the contents of certain promissory notes said to be lost is objected to on exceptions filed by the defendant; and for this cause a new trial is moved for. After hearing the parties, we are all satisfied that the evidence was properly admitted. By law the plaintiffs, after they had been delivered to the jury in evidence, had no longer the custody of the notes; but they were intrusted to the care of the clerk of this court; and it appeared from his testimony that they were lost, and that he could not find them. This was a proper case to let in evidence of the contents; and that the evidence to prove the con tents was proper is not denied. The defendant’s counsel have argued against the admission of the copies, because they were not proved to be taken before the loss of the original; and his argument is founded on principle, if the copies were produced to prove the contents of the originals. But he seems to be mistaken in the point. The copies were produced to have the confession of Clap the endorser written on them, that he believed them to be true copies, and that the originals were lost, for the use of the defendant if *he should [*104] have ocfeasion to resort to the endorser for a remedy; and not to prove the contents of the notes in this action. Since the last trial the clerk has found the originals, and on examination it appears that the contents were truly testified to by the witnesses. If the judge had in fact erred, there can now be no ground for a new trial, as complete justice has been done (a). We are, however, satisfied that the evidence objected to was properly admitted, under the circumstances of the case, as they then appeared.
Judgment according to verdict.
Newell vs. Hopkins, 6 Mass. 330. — Brazier & al. vs. Clapp, ante, 1. | 06-25-2022 | [
"Parsons, C. J. The admission of paroi evidence by the judge to prove the contents of certain promissory notes said to be lost is objected to on exceptions filed by the defendant; and for this cause a new trial is moved for. After hearing the parties, we are all satisfied that the evidence was properly admitted. By law the plaintiffs, after they had been delivered to the jury in evidence, had no longer the custody of the notes; but they were intrusted to the care of the clerk of this court; and it appeared from his testimony that they were lost, and that he could not find them. This was a proper case to let in evidence of the contents; and that the evidence to prove the con tents was proper is not denied. The defendant’s counsel have argued against the admission of the copies, because they were not proved to be taken before the loss of the original; and his argument is founded on principle, if the copies were produced to prove the contents of the originals.",
"But he seems to be mistaken in the point. The copies were produced to have the confession of Clap the endorser written on them, that he believed them to be true copies, and that the originals were lost, for the use of the defendant if *he should [*104] have ocfeasion to resort to the endorser for a remedy; and not to prove the contents of the notes in this action. Since the last trial the clerk has found the originals, and on examination it appears that the contents were truly testified to by the witnesses. If the judge had in fact erred, there can now be no ground for a new trial, as complete justice has been done (a). We are, however, satisfied that the evidence objected to was properly admitted, under the circumstances of the case, as they then appeared.",
"Judgment according to verdict. Newell vs. Hopkins, 6 Mass. 330. — Brazier & al. vs. Clapp, ante, 1."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6403350/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:19-cv-01545-GSA Document 16 Filed 06/29/20 Page 1 of 2
McGREGOR W. SCOTT 1 United States Attorney 2 DEBORAH LEE STACHEL Regional Chief Counsel, Region IX 3 Social Security Administration MARGARET BRANICK-ABILLA, CSBN 223600 4 Special Assistant United States Attorney 5 160 Spear Street, Suite 800 San Francisco, California 94105 6 Telephone: (415) 977-8929 7 Facsimile: (415) 744-0134 E-Mail: Margaret.Branick-Abilla@ssa.gov 8 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 SACRAMENTO DIVISION 12
13 ) Case No. No. 1:19-cv-01545-GSA MARY LYNNE GONZALES, ) 14 ) STIPULATION & ORDER TO Plaintiff, ) REMAND PURSUANT TO 15 ) SENTENCE FOUR OF 42 U.S.C. § 405(g) vs. ) 16 ) ANDREW SAUL, ) 17 Commissioner of Social Security, ) ) 18 ) Defendant. ) 19
20 IT IS HEREBY STIPULATED, by and between plaintiff Mary Lynne Gonzales 21 (Plaintiff) and Andrew Saul, Commissioner of Social Security (the Commissioner or Defendant), 22 through their respective counsel of record, and with the approval of the Court, that this action be 23 remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 24 The Appeals Council will remand the case to an administrative law judge (ALJ). On 25 remand, the Appeals Council will instruct the ALJ to further evaluate the medical and 26 testimonial evidence; reassess Plaintiff’s subjective symptom statements; reconsider Plaintiff’s 27 residual functional capacity as appropriate; take further action, as warranted, to complete the 28
1 Stipulation No. 1:19-cv-01545-GSA Case 1:19-cv-01545-GSA Document 16 Filed 06/29/20 Page 2 of 2
1 administrative record; complete the remaining steps of the sequential disability analysis as 2 necessary; and issue a new decision. 3 The parties further request that the Clerk of the Court be directed to enter a final 4 judgment in favor of Plaintiff, and against Defendant, reversing the final decision of the 5 Commissioner. Respectfully submitted, 6
7 Dated: June 17, 2020 PENA & BROMBERG, PLC
8 By: /s/ Jonathan O. Pena* 9 JONATHAN O. PENA 10 Attorneys for Plaintiff [*As authorized by e-mail on Jun. 17, 2020] 11
12 Dated: June 27, 2020 McGREGOR W. SCOTT 13 United States Attorney DEBORAH LEE STACHEL 14 Regional Chief Counsel, Region IX 15 Social Security Administration
16 By: /s/ Margaret Branick-Abilla_ __ 17 MARGARET BRANICK-ABILLA 18 Special Assistant United States Attorney Attorneys for Defendant 19
20
21 IT IS SO ORDERED.
22 Dated: June 27, 2020 /s/ Gary S. Austin 23 UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
2 Stipulation No. 1:19-cv-01545-GSA | 2020-06-29 | [
"Case 1:19-cv-01545-GSA Document 16 Filed 06/29/20 Page 1 of 2 McGREGOR W. SCOTT 1 United States Attorney 2 DEBORAH LEE STACHEL Regional Chief Counsel, Region IX 3 Social Security Administration MARGARET BRANICK-ABILLA, CSBN 223600 4 Special Assistant United States Attorney 5 160 Spear Street, Suite 800 San Francisco, California 94105 6 Telephone: (415) 977-8929 7 Facsimile: (415) 744-0134 E-Mail: Margaret.Branick-Abilla@ssa.gov 8 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 SACRAMENTO DIVISION 12 13 ) Case No. No. 1:19-cv-01545-GSA MARY LYNNE GONZALES, ) 14 ) STIPULATION & ORDER TO Plaintiff, ) REMAND PURSUANT TO 15 ) SENTENCE FOUR OF 42 U.S.C. § 405(g) vs. ) 16 ) ANDREW SAUL, ) 17 Commissioner of Social Security, ) ) 18 ) Defendant. )",
"19 20 IT IS HEREBY STIPULATED, by and between plaintiff Mary Lynne Gonzales 21 (Plaintiff) and Andrew Saul, Commissioner of Social Security (the Commissioner or Defendant), 22 through their respective counsel of record, and with the approval of the Court, that this action be 23 remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 24 The Appeals Council will remand the case to an administrative law judge (ALJ). On 25 remand, the Appeals Council will instruct the ALJ to further evaluate the medical and 26 testimonial evidence; reassess Plaintiff’s subjective symptom statements; reconsider Plaintiff’s 27 residual functional capacity as appropriate; take further action, as warranted, to complete the 28 1 Stipulation No.",
"1:19-cv-01545-GSA Case 1:19-cv-01545-GSA Document 16 Filed 06/29/20 Page 2 of 2 1 administrative record; complete the remaining steps of the sequential disability analysis as 2 necessary; and issue a new decision. 3 The parties further request that the Clerk of the Court be directed to enter a final 4 judgment in favor of Plaintiff, and against Defendant, reversing the final decision of the 5 Commissioner. Respectfully submitted, 6 7 Dated: June 17, 2020 PENA & BROMBERG, PLC 8 By: /s/ Jonathan O. Pena* 9 JONATHAN O. PENA 10 Attorneys for Plaintiff [*As authorized by e-mail on Jun. 17, 2020] 11 12 Dated: June 27, 2020 McGREGOR W. SCOTT 13 United States Attorney DEBORAH LEE STACHEL 14 Regional Chief Counsel, Region IX 15 Social Security Administration 16 By: /s/ Margaret Branick-Abilla_ __ 17 MARGARET BRANICK-ABILLA 18 Special Assistant United States Attorney Attorneys for Defendant 19 20 21 IT IS SO ORDERED. 22 Dated: June 27, 2020 /s/ Gary S. Austin 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2 Stipulation No.",
"1:19-cv-01545-GSA"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/137926193/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CRIMINAL CASE COVER SHEET County of Offense / Division of Filing Matter to be Sealed ■ Secret Indictment Greene / Southern Juvenile Defendant Information Defendant Name: Jonathan C. Mallow
Alias Name:
Birth Date: 12/25/1989 Related Case Information Superseding Indictment? 20-03041-CR-S-MDH ■ Yes No If yes, original case number: New Defendant(s)? ■ Yes No Prior Complaint Case Number, if any:
Prior Target Letter Case Number, if any: U.S. Attorney Information AUSA Jessica R. Sarff
Interpreter Needed? Yes Language and/or Dialect: ■ No
Location Status Arrest Date: Currently in Federal Custody Writ Required? Yes ■ No Currently in State Custody ■ Yes No Warrant Required? Currently on Bond
U.S.C. Citations Total # of Counts 3 with FA
Set Index Key & Description of Offense Charged Count(s)
1 21:846=CD.F CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE 1
2 21:841B=CP.F CONTROLLED SUBSTANCE - POSSESSION WITH INTENT TO DIST 3, 7
3 21:853.F CRIMINAL FORFEITURES FA
4
(May be continued on reverse) Revised: 04-25-2018 Case 6:20-cr-03041-MDH Document 83-9 Filed 01/19/21 Page 1 of 1 | 2021-01-19 | [
"UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CRIMINAL CASE COVER SHEET County of Offense / Division of Filing Matter to be Sealed ■ Secret Indictment Greene / Southern Juvenile Defendant Information Defendant Name: Jonathan C. Mallow Alias Name: Birth Date: 12/25/1989 Related Case Information Superseding Indictment? 20-03041-CR-S-MDH ■ Yes No If yes, original case number: New Defendant(s)? ■ Yes No Prior Complaint Case Number, if any: Prior Target Letter Case Number, if any: U.S. Attorney Information AUSA Jessica R. Sarff Interpreter Needed? Yes Language and/or Dialect: ■ No Location Status Arrest Date: Currently in Federal Custody Writ Required? Yes ■ No Currently in State Custody ■ Yes No Warrant Required?",
"Currently on Bond U.S.C. Citations Total # of Counts 3 with FA Set Index Key & Description of Offense Charged Count(s) 1 21:846=CD.F CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE 1 2 21:841B=CP.F CONTROLLED SUBSTANCE - POSSESSION WITH INTENT TO DIST 3, 7 3 21:853.F CRIMINAL FORFEITURES FA 4 (May be continued on reverse) Revised: 04-25-2018 Case 6:20-cr-03041-MDH Document 83-9 Filed 01/19/21 Page 1 of 1"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/159438117/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
595 F.2d 1229 Olds Products Co.v.Montana Mustard Seed Co., Inc. No. 77-1005 United States Court of Appeals, Ninth Circuit 3/21/79
1 D.Mont.
AFFIRMED | 08-23-2011 | [
"595 F.2d 1229 Olds Products Co.v.Montana Mustard Seed Co., Inc. No. 77-1005 United States Court of Appeals, Ninth Circuit 3/21/79 1 D.Mont. AFFIRMED"
]
| https://www.courtlistener.com/api/rest/v3/opinions/365403/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
This Office Action is a response to an amendment filed on 06/27/2022, in which claims 21-40 are pending and ready for examination.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
EXAMINER’S AMENDMENT
An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Patrick Palascak on 07/26/2022.
Claims 37-40 has been amended as follows:
37. The method of claim 34, further comprising: after executing each previous digital magnification at each previous digital magnification level on the first image and the second image, maintaining the binocular overlap and the vertical alignment determined when executing the first digital magnification at the first digital magnification level on the first image and the second image; and continuing to maintain the binocular overlap and the vertical alignment determined from the adjusting of the cropping of the first image and the second image to satisfy the overlap threshold after executing the first digital magnification at the first digital magnification level on the first image and the second image for each subsequent digital magnification at each subsequent digital magnification level, wherein each subsequent digital magnification level is increased from each previous digital magnification level.
38. The method of claim 34, further comprising: executing the first digital magnification at the first digital magnification level on a non-concentric portion of the first image and on a non-concentric portion of the second image, wherein the non-concentric portion of the first image and the second image is a portion of the first image and the second image that differs from a center of the first image and the second image; adjusting the cropping of the first image and the second image to provide binocular overlap of the non-concentric portion of the first image and the non- concentric portion of the second image, wherein the binocular overlap of the non- concentric portion of the first image and the non-concentric portion of the second image satisfies the overlap threshold; and continuing to capture a non-concentric portion of the first image and a non- concentric portion of the second image for each subsequent digital magnification at each subsequent digital magnification level, wherein the binocular overlap of the non- concentric portion of the first image and the non-concentric portion of the second image is maintained from the first digital magnification at the first digital magnification level. 39. The method of claim 34, further comprising: determining a distance that the first image sensor and the second image sensor is positioned from the target; and executing the cropping of the first image and the second image to maintain the vertical alignment and the binocular overlap for digital magnification at a digital magnification level based on the distance of the first image sensor and the second image sensor from the target.
40. The method of claim 34, further comprising: displaying by a wearable display the resized and cropped first image and the resized and cropped second image to display the 3D image of the target after the digital magnification is executed that includes the binocular overlap of the first image and the second image that are vertically aligned to satisfy the overlap threshold.
REASONS FOR ALLOWANCE
Claims 21-40 are allowed over the prior art of record. The following is an examiner’s statement of reasons for allowance: Claims 21 and 31 are allowed because the current prior art of record, considered individually or in combination, fails to teach or reasonably suggest all the claimed features of claim 21 and 31, structurally and functionally interconnected with other limitations in the manner as cited in the claims. More specifically, the prior art on record fails to teach or suggest the limitation of: “generate a 3D image based on binocular overlap of a first image of the target captured by a first image sensor and a second image of the target captured by a second image sensor as the digital magnification of the target is adjusted to each corresponding digital magnification level, wherein the binocular overlap of the first image and the second image is maintained for each digital magnification level thereby maintaining alignment of the first image and the second image as depicted by the 3D image” as recited in claim 21. Claim 31 claims features similar to the ones claimed in claim 21. Thus, the mentioned limitation in combination with all other limitations of the claim has been found allowable. Claims 21 and 31 are allowed and all claims dependent on claims 21 and 31 are allowed as well. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARYAM A NASRI whose telephone number is (571)270-7158. The examiner can normally be reached 10:00-8:00 M-T. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Ustaris can be reached on 5712727383. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MARYAM A NASRI/Primary Examiner, Art Unit 2483 | 2022-07-29T02:17:30 | [
"DETAILED ACTION This Office Action is a response to an amendment filed on 06/27/2022, in which claims 21-40 are pending and ready for examination. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312.",
"To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Patrick Palascak on 07/26/2022. Claims 37-40 has been amended as follows: 37. The method of claim 34, further comprising: after executing each previous digital magnification at each previous digital magnification level on the first image and the second image, maintaining the binocular overlap and the vertical alignment determined when executing the first digital magnification at the first digital magnification level on the first image and the second image; and continuing to maintain the binocular overlap and the vertical alignment determined from the adjusting of the cropping of the first image and the second image to satisfy the overlap threshold after executing the first digital magnification at the first digital magnification level on the first image and the second image for each subsequent digital magnification at each subsequent digital magnification level, wherein each subsequent digital magnification level is increased from each previous digital magnification level. 38.",
"The method of claim 34, further comprising: executing the first digital magnification at the first digital magnification level on a non-concentric portion of the first image and on a non-concentric portion of the second image, wherein the non-concentric portion of the first image and the second image is a portion of the first image and the second image that differs from a center of the first image and the second image; adjusting the cropping of the first image and the second image to provide binocular overlap of the non-concentric portion of the first image and the non- concentric portion of the second image, wherein the binocular overlap of the non- concentric portion of the first image and the non-concentric portion of the second image satisfies the overlap threshold; and continuing to capture a non-concentric portion of the first image and a non- concentric portion of the second image for each subsequent digital magnification at each subsequent digital magnification level, wherein the binocular overlap of the non- concentric portion of the first image and the non-concentric portion of the second image is maintained from the first digital magnification at the first digital magnification level.",
"39. The method of claim 34, further comprising: determining a distance that the first image sensor and the second image sensor is positioned from the target; and executing the cropping of the first image and the second image to maintain the vertical alignment and the binocular overlap for digital magnification at a digital magnification level based on the distance of the first image sensor and the second image sensor from the target. 40. The method of claim 34, further comprising: displaying by a wearable display the resized and cropped first image and the resized and cropped second image to display the 3D image of the target after the digital magnification is executed that includes the binocular overlap of the first image and the second image that are vertically aligned to satisfy the overlap threshold.",
"REASONS FOR ALLOWANCE Claims 21-40 are allowed over the prior art of record. The following is an examiner’s statement of reasons for allowance: Claims 21 and 31 are allowed because the current prior art of record, considered individually or in combination, fails to teach or reasonably suggest all the claimed features of claim 21 and 31, structurally and functionally interconnected with other limitations in the manner as cited in the claims. More specifically, the prior art on record fails to teach or suggest the limitation of: “generate a 3D image based on binocular overlap of a first image of the target captured by a first image sensor and a second image of the target captured by a second image sensor as the digital magnification of the target is adjusted to each corresponding digital magnification level, wherein the binocular overlap of the first image and the second image is maintained for each digital magnification level thereby maintaining alignment of the first image and the second image as depicted by the 3D image” as recited in claim 21. Claim 31 claims features similar to the ones claimed in claim 21.",
"Thus, the mentioned limitation in combination with all other limitations of the claim has been found allowable. Claims 21 and 31 are allowed and all claims dependent on claims 21 and 31 are allowed as well. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARYAM A NASRI whose telephone number is (571)270-7158. The examiner can normally be reached 10:00-8:00 M-T. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Ustaris can be reached on 5712727383.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /MARYAM A NASRI/Primary Examiner, Art Unit 2483"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Bullard, J.,
delivered the opinion of the court. This is an action to recover the hire of the brig Fama, chartered by the defendants for a voyage from New-Orleans to Brazos St. Jago, or Tampico. The defendants resist the payment, on the ground that the vessel did not proceed with the cargo, or deliver it at the place of destination, but damaged more than three fourths of it in the river Mississippi, so as to render it impracticable to re-ship it; that the voyage was thereby broken lip, and the damaged portion of the cargo, after having been duly inspected and surveyed by ihe port wardens, was by them ordered to be sold, and it was so sold for account of the underwriters, and not accepted voluntarily or unconditionally; but merely received by them as agent for the insurers ; that the voyage, nor any part of it, WcSinot performed, no transportation or delivery of the cargo was made, according to the terms and stipulations of the charter party or bills of lading. The facts established on the trial are, that, the brig departed from from'New-Orleans on her voyage on the 3d of March, and on the 4th, about day-light, struck some obstacle under water, which caused her to spring a leak; that she was leaking so fast that it became necessary to strand her, and having succeeded in partially stopping the leak, it was found expedient to return to port to repair. She reached the city on the 5th, in t.be afternoon, and on the 7th they began to discharge the cargo, and finished discharging on the 9th, at noon. It was found that a large part of the cargo was damaged, and was sold bjr direction of the port wardens, for account of whom it might concern. On the 14th of the same month, the defendants were notified by the latter that the brig had finished her repairs, and was ready to receive her cargo on board, in order to proceed on her voyage. But the defendants declined putting any cargo on board. It, appears that the cargo was too much damaged to be re-shipped, at least without being repacked. The hire or .rent is due when rt depends alone on th.e*\vill of the hirer or lessee to enjoy the thing hired, or when he has not been prevented from enjoying il by the lessor. It is not of the contract 'of af-freightment that the merchandize should be trans-same^vessei ^to the port of dcsti-of necessity, the may'1repah'Vthe vessel, or furnish another to com-píete the voyage freight. ref^es'tf’Sow repairs, or per-S'employ owners SSof' the chartered vessel to the -whole voyage,although the cargo is not delivered &t tbe port Of destina-tl0n- It is not pretended that the damage done to the cargo was occasioned by the fault or negligence of the captain or crew, or that the vessel was not sea-worthy at the time she sailed on the projected voyage. The obligations of the parties to a contract of affreightment by charter- party, spring from the nature of the contract, ■which is one essentially of letting and hiring. As a general principle, it is well s'ettled, that the hire or rent is due when it depends alone on the will of the hirer or lessee to enjoy the thing, or when he has not been prevented from enjoying it by the lessor. Pothier Contrat de Louage. 2 Boulay Paty 363. When, therefore, it is asserted that the transportation of cargo to the port of destination, is a condition precedent, without which the freight or hire cannot be recovered, it ° 7 must be taken with this limitation, that the charterer was noh toy bis own act, prevented the performance of that con-¿lition. Jf the cargo had been delivered at the place of destination., however deteriorated by the perils of the sea, it conceded on all hands, that the whole freight would have been earned. It is not of the essence of the contract that . , the merchandize should be transported in the same vessel, but m case of necessity arising from vis major during the v°yage’ the captain or owners have a right either to repair, if it can be done within a reasonable time, or to employ vessel and earn the freight. “If the merchant disagre'es witíl -this> (to use *6 words of Lord Mansfield,) and will not let him do so, the master will be entitled to the whole freight of the full voyage, and so it was determined by tbe House of Lords in the case of Lutwidge & How vs. Gray et al.” Jlbbott on Shipping, 311. * bit o According to these principles, if the Fama, after the accident, had put into an intermediate port to repair, and had a few days after offered to proceed on the voyage, having .completed her repairs, and this had béen declined by the ■charterers, who, in the meantime, had disposed of the cargo, we do not doubt that the owners would have been entitled to -full freight. How is the case varied when - the port of *205departure becomes, as it were, a port of necessity, as in this case1? The voyage was begun, and whether the accident happened in the Mississippi or on the coast of Mexico; whether the vessel put back to New-Orleans or put into any port between that and the Brazos St. Jago, for the purpose of making repairs and saving the cargo, cannot, in our opinion, change the relative rights of the parlies. So, where a mueh injured on *.e astomakeitne-tiTport and re-paíof the cargo was so damaged that it was sold by 01-wardens?"5 Pfor whom ;t mjsht concern, and the remainder unfit nepaciangT/S', that the freighters of the vessel were hound to a^Ah/Tm-go had been delivered at the port of destination, re-shfplonheing-notified ten days ant lthat a<the vessel was ready cargo and1 pro-vova °n her *205Lord Ellenborough, who is supposed by the counsel for the appellants, to have sanctioned, in one case, a different doctrine, laid down the law, in the case of Hunter vs. Prinsep, in the following manner: “ The ship owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the sea or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of destination he will pay the, stipulated freight, but it was only in that event, viz: of their delivery at the place, of destination,' that he, the, freighter, engages to pay any thing. If the ship be disabled from completing her voyage, the ship owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination ; but he has no right to any. freight if they be not so forwarded, unless the forwarding them be dispensed with, or unless there be some new bargain on the subject. If the ship owner will not forward them, the freighter is entitled to them without paying any thing. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight, and the other, if there be a refusal to „ , . . .,,, i . , . forward them, is entitled to have them without paying any freight at all.” 10 East, 378. Abbott on Shipping, 322. If on 'a previous occasion his lordship had apparently lent the countenance of his great name to a contrary doctrine, it is not for us to reconcile him to himself. We think ourselves authorized to follow this latter decision as more consonant to . . . the settled maxims of maritime law, and in harmony with tjie best authorities in France, England and the United States. ' ' We concur with the counsel for the appellants, that this is not a case in which partial freight might be allowed U pro *206rata itineris. No part of the cargo was, in fact, conveyed (0 the port of destination, nor was there such a breaking up voyage as to 'create a new implied promise to pay P8,1'1^ freight. The' plaintiffs are entitled to the whole or no thing, and we agree with the court below, that the defendants are ^0Un<^ to Pay ^e entire hire of the brig. R is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. | 07-24-2022 | [
"Bullard, J., delivered the opinion of the court. This is an action to recover the hire of the brig Fama, chartered by the defendants for a voyage from New-Orleans to Brazos St. Jago, or Tampico. The defendants resist the payment, on the ground that the vessel did not proceed with the cargo, or deliver it at the place of destination, but damaged more than three fourths of it in the river Mississippi, so as to render it impracticable to re-ship it; that the voyage was thereby broken lip, and the damaged portion of the cargo, after having been duly inspected and surveyed by ihe port wardens, was by them ordered to be sold, and it was so sold for account of the underwriters, and not accepted voluntarily or unconditionally; but merely received by them as agent for the insurers ; that the voyage, nor any part of it, WcSinot performed, no transportation or delivery of the cargo was made, according to the terms and stipulations of the charter party or bills of lading. The facts established on the trial are, that, the brig departed from from'New-Orleans on her voyage on the 3d of March, and on the 4th, about day-light, struck some obstacle under water, which caused her to spring a leak; that she was leaking so fast that it became necessary to strand her, and having succeeded in partially stopping the leak, it was found expedient to return to port to repair.",
"She reached the city on the 5th, in t.be afternoon, and on the 7th they began to discharge the cargo, and finished discharging on the 9th, at noon. It was found that a large part of the cargo was damaged, and was sold bjr direction of the port wardens, for account of whom it might concern. On the 14th of the same month, the defendants were notified by the latter that the brig had finished her repairs, and was ready to receive her cargo on board, in order to proceed on her voyage. But the defendants declined putting any cargo on board. It, appears that the cargo was too much damaged to be re-shipped, at least without being repacked. The hire or .rent is due when rt depends alone on th.e*\\vill of the hirer or lessee to enjoy the thing hired, or when he has not been prevented from enjoying il by the lessor.",
"It is not of the contract 'of af-freightment that the merchandize should be trans-same^vessei ^to the port of dcsti-of necessity, the may'1repah'Vthe vessel, or furnish another to com-píete the voyage freight. ref^es'tf’Sow repairs, or per-S'employ owners SSof' the chartered vessel to the -whole voyage,although the cargo is not delivered &t tbe port Of destina-tl0n- It is not pretended that the damage done to the cargo was occasioned by the fault or negligence of the captain or crew, or that the vessel was not sea-worthy at the time she sailed on the projected voyage.",
"The obligations of the parties to a contract of affreightment by charter- party, spring from the nature of the contract, ■which is one essentially of letting and hiring. As a general principle, it is well s'ettled, that the hire or rent is due when it depends alone on the will of the hirer or lessee to enjoy the thing, or when he has not been prevented from enjoying it by the lessor. Pothier Contrat de Louage. 2 Boulay Paty 363. When, therefore, it is asserted that the transportation of cargo to the port of destination, is a condition precedent, without which the freight or hire cannot be recovered, it ° 7 must be taken with this limitation, that the charterer was noh toy bis own act, prevented the performance of that con-¿lition. Jf the cargo had been delivered at the place of destination., however deteriorated by the perils of the sea, it conceded on all hands, that the whole freight would have been earned.",
"It is not of the essence of the contract that . , the merchandize should be transported in the same vessel, but m case of necessity arising from vis major during the v°yage’ the captain or owners have a right either to repair, if it can be done within a reasonable time, or to employ vessel and earn the freight. “If the merchant disagre'es witíl -this> (to use *6 words of Lord Mansfield,) and will not let him do so, the master will be entitled to the whole freight of the full voyage, and so it was determined by tbe House of Lords in the case of Lutwidge & How vs. Gray et al.” Jlbbott on Shipping, 311.",
"* bit o According to these principles, if the Fama, after the accident, had put into an intermediate port to repair, and had a few days after offered to proceed on the voyage, having .completed her repairs, and this had béen declined by the ■charterers, who, in the meantime, had disposed of the cargo, we do not doubt that the owners would have been entitled to -full freight. How is the case varied when - the port of *205departure becomes, as it were, a port of necessity, as in this case1? The voyage was begun, and whether the accident happened in the Mississippi or on the coast of Mexico; whether the vessel put back to New-Orleans or put into any port between that and the Brazos St. Jago, for the purpose of making repairs and saving the cargo, cannot, in our opinion, change the relative rights of the parlies.",
"So, where a mueh injured on *.e astomakeitne-tiTport and re-paíof the cargo was so damaged that it was sold by 01-wardens? \"5 Pfor whom ;t mjsht concern, and the remainder unfit nepaciangT/S', that the freighters of the vessel were hound to a^Ah/Tm-go had been delivered at the port of destination, re-shfplonheing-notified ten days ant lthat a<the vessel was ready cargo and1 pro-vova °n her *205Lord Ellenborough, who is supposed by the counsel for the appellants, to have sanctioned, in one case, a different doctrine, laid down the law, in the case of Hunter vs. Prinsep, in the following manner: “ The ship owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the sea or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of destination he will pay the, stipulated freight, but it was only in that event, viz: of their delivery at the place, of destination,' that he, the, freighter, engages to pay any thing. If the ship be disabled from completing her voyage, the ship owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination ; but he has no right to any.",
"freight if they be not so forwarded, unless the forwarding them be dispensed with, or unless there be some new bargain on the subject. If the ship owner will not forward them, the freighter is entitled to them without paying any thing. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight, and the other, if there be a refusal to „ , . . .,,, i .",
", . forward them, is entitled to have them without paying any freight at all.” 10 East, 378. Abbott on Shipping, 322. If on 'a previous occasion his lordship had apparently lent the countenance of his great name to a contrary doctrine, it is not for us to reconcile him to himself. We think ourselves authorized to follow this latter decision as more consonant to . . .",
"the settled maxims of maritime law, and in harmony with tjie best authorities in France, England and the United States. ' ' We concur with the counsel for the appellants, that this is not a case in which partial freight might be allowed U pro *206rata itineris. No part of the cargo was, in fact, conveyed (0 the port of destination, nor was there such a breaking up voyage as to 'create a new implied promise to pay P8,1'1^ freight. The' plaintiffs are entitled to the whole or no thing, and we agree with the court below, that the defendants are ^0Un<^ to Pay ^e entire hire of the brig. R is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs."
]
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00153-CR
Cindy Ann Mendoza, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-98-0372, HONORABLE JACK ROBISON, JUDGE PRESIDING
A jury found appellant Cindy Ann Mendoza guilty of murder and assessed
punishment at imprisonment for life and a $10,000 fine. See Tex. Penal Code Ann. § 19.02 (West
1994). Appellant brings forward five points complaining of error during jury selection, in the
admission and exclusion of evidence, and in the jury charge. We will overrule these contentions and
affirm the conviction. Appellant, her fiancee Joe Martinez, and her seven-year-old son lived with Castulo
Martinez, Joe's father. Appellant and Joe returned home about 9:00 p.m. on October 10, 1998, after
spending the day drinking beer and tequila with a friend. Appellant and Castulo argued. Later,
under circumstances not entirely clear from the record, appellant fatally stabbed Castulo Martinez,
took his wallet, and fled. Appellant was tried for capital murder and convicted of the lesser included
offense. The sufficiency of the evidence is not in dispute. In point of error five, appellant contends the court erroneously admitted "prosecution-manufactured evidence to improperly impeach a witness." Joe Martinez testified as a State witness.
During his testimony, Martinez acknowledged that he still had "very strong . . . feelings" for
appellant, and that he had in fact married her two months after the murder. The prosecutor then
showed Martinez State's exhibit 55, which contained enlarged quotations taken from recorded
telephone conversations between Martinez and appellant. Martinez said he recognized the
statements as his. (1) The State then offered the exhibit in evidence. Appellant objected that this was
not proper impeachment; that the prosecutor should read each quoted passage and ask the witness
whether he made the statement. Appellant also objected to the exhibit itself, on the ground that it
was cumulative of the witness's testimony. These objections were overruled. The prosecutor then
read the statements contained in the exhibit, each of which Martinez acknowledged making. Appellant does not complain of the prosecutor reading the statements to Martinez,
or of having Martinez admit before the jury that he made the statements. Instead, appellant
complains only of the admission of the exhibit containing the enlargement of the statements.
Appellant contends that the admission of the exhibit violated evidence rule 613(b) because Martinez
admitted having a bias in favor of appellant. See Tex. R. Evid. 613(b) (examining witness
concerning bias or interest). In appellant's view, exhibit 55 was extrinsic evidence showing an
admitted bias. See id. Whatever the merits of this argument, it was not made to the district court
and therefore not preserved for appeal. Tex. R. Evid. 33.1(a); Tex. R. Evid. 103(a). Further, we are
satisfied that any error in the admission of exhibit 55 was harmless under the circumstances. See
Tex. R. App. P. 44.2(b). Point of error five is overruled. Next, appellant contends the court erred by admitting extraneous misconduct
testimony by a witness who could not identify appellant. Saletus Smith testified that he and his
girlfriend encountered a drunken woman outside their apartment on the night of October 10, 1998. (2)
Smith testified that the woman was extremely intoxicated, accused him of stealing her food stamp
card, and threatened to shoot him. Smith and his girlfriend managed to get away from the woman,
and called the police from a nearby store. At the conclusion of Smith's testimony, to which
appellant voiced no objection, the witness was asked if the woman he encountered on October 10
was present in the courtroom. Smith said he could not make a positive identification. The
prosecutor then asked Smith if anyone in the courtroom "looks similar" to the woman. Appellant
voiced her only objection at this point: "That's an improper question, whether or not he can identify
her or not. He's already answered the question." The objection was overruled. The question was
repeated and Smith answered, "I couldn't tell." Appellant argues that the court should not have permitted testimony regarding
extraneous misconduct that could not be affirmatively linked to her. This objection was not made
to the district court. See Tex. R. App. P. 33.1(a). In any event, the next witness for the State was
the police officer who responded to Smith's call. The officer positively identified appellant as the
person he arrested at Smith's apartment complex after Smith identified her at the scene as the woman
who threatened him. Point of error four is overruled. In point of error one, appellant contends the district court erred by prohibiting her
from impeaching a State witness, San Marcos police officer Dan Misiaszek. During cross-examination by defense counsel, Misiaszek was asked if he ever told appellant she would "get the
needle" if she did not confess. The officer replied that he never personally spoke to appellant. Later,
during her own testimony, appellant told the jury that a detective who "looked like the same guy that
was up here the other day, but except his hair was combed different" spoke to her while she was in
jail. The State's objection to the relevance of this conversation was sustained, and appellant was not
permitted to tell the jury that this detective said "he knew what happened and that I better say the
truth and tell them that Joe was in it with me because if not I was going to life or death penalty no
matter what I said, and that he knew I did it, and that he knew why, and he scared me." In the trial court, appellant urged that the excluded statement was admissible under
evidence rule 613(a), which permits impeachment by proof of a prior inconsistent statement. Tex.
R. Evid. 613(a). Appellant does not now contend that her proffered testimony was a prior
inconsistent statement by the detective. Instead, she argues on appeal that the district court's ruling
infringed on her constitutional right to confront the witnesses through cross-examination. U.S.
Const. amend. VI; Tex. Const. art. I, § 10; see Davis v. Alaska, 415 U.S. 308, 315 (1974); Rankin
v. State, 41 S.W.3d 335, 344 (Tex. App.--Fort Worth 2001, no pet. hist.). The contention appellant now advances does not comport with her trial objection.
Tex. R. App. P. 33.1(a). Moreover, her argument to this Court does not comport with the ruling of
which she complains. The district court's ruling excluded appellant's own testimony; the court did
not limit her cross-examination of Officer Misiaszek. In fact, appellant does not refer us to any
limitation placed on her cross-examination of the officer. Finally, we note that appellant was
permitted to testify that a detective who "looked like [him]" talked to her, thereby impeaching the
officer's testimony denying such a conversation. No reversible error is presented and point of error
one is overruled. In point of error three, appellant complains that the reporter's record does not indicate
the name of several venire members who made statements during voir dire. Appellant contends that
the prosecutor should have indicated the name of each venire member with whom he spoke.
Appellant complains that without the names, it is impossible to determine if the panelists who
indicated that they could not follow the law were in fact struck from the jury. She concedes that
there is no authority supporting her contention. After both attorneys completed their questioning of the panel, the State challenged
six panelists by name. Appellant agreed to four of the challenges, which were immediately granted.
The two other panelists challenged by the State were questioned individually and the challenges were
then granted. Appellant voiced no objection and does not now contend that any of the State's
challenges were erroneously granted. Appellant also challenged three panelists. Two of these
challenges were granted, and the other panelist did not serve on the jury because he was outside the
strike zone. The record reflects that appellant had a full and fair opportunity both to challenge
panelists and to object to the State's challenges. The failure to record the names of panelists as they
spoke to the attorneys during voir dire of the panel has not been shown to have harmed appellant.
Point of error three is overruled. Finally, appellant contends the court's jury charge "omitted the proper standard of
proof applicable to the affirmative defense of self-defense." Appellant urges that the court should
have instructed the jury that she had to prove the existence of the affirmative defense by a
preponderance of the evidence. See Tex. Penal Code Ann. § 2.04(d) (West 1994). This point of error is premised on a mistaken understanding of the applicable law.
Self-defense is a justification. Id. § 9.31(a) (West Supp. 2001). Justification is a defense, not an
affirmative defense. Id. § 9.02 (West 1994). If the existence of a defense is submitted to the jury,
the court must charge that a reasonable doubt on the issue requires that the defendant be acquitted.
Id. § 2.03(d). The district court's jury charge in this cause properly placed the burden on the State
to prove beyond a reasonable doubt that appellant did not act in self-defense when she stabbed the
victim. Point of error two is overruled. The judgment of conviction is affirmed.
__________________________________________ Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: August 30, 2001 Do Not Publish
1. The statements were supportive of appellant. Martinez indicated that he was trying to raise
money for appellant's bail. He also told her, "[Y]ou need to face what you did . . . [but] God
being with us, we can lower that sentence . . . ."
2. The record reflects that this encounter took place about forty-five minutes after the victim
was stabbed. | 09-05-2015 | [
"TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00153-CR Cindy Ann Mendoza, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-98-0372, HONORABLE JACK ROBISON, JUDGE PRESIDING A jury found appellant Cindy Ann Mendoza guilty of murder and assessed punishment at imprisonment for life and a $10,000 fine. See Tex. Penal Code Ann. § 19.02 (West 1994). Appellant brings forward five points complaining of error during jury selection, in the admission and exclusion of evidence, and in the jury charge. We will overrule these contentions and affirm the conviction. Appellant, her fiancee Joe Martinez, and her seven-year-old son lived with Castulo Martinez, Joe's father. Appellant and Joe returned home about 9:00 p.m. on October 10, 1998, after spending the day drinking beer and tequila with a friend. Appellant and Castulo argued. Later, under circumstances not entirely clear from the record, appellant fatally stabbed Castulo Martinez, took his wallet, and fled. Appellant was tried for capital murder and convicted of the lesser included offense. The sufficiency of the evidence is not in dispute. In point of error five, appellant contends the court erroneously admitted \"prosecution-manufactured evidence to improperly impeach a witness.\" Joe Martinez testified as a State witness.",
"During his testimony, Martinez acknowledged that he still had \"very strong . . . feelings\" for appellant, and that he had in fact married her two months after the murder. The prosecutor then showed Martinez State's exhibit 55, which contained enlarged quotations taken from recorded telephone conversations between Martinez and appellant. Martinez said he recognized the statements as his. (1) The State then offered the exhibit in evidence. Appellant objected that this was not proper impeachment; that the prosecutor should read each quoted passage and ask the witness whether he made the statement.",
"Appellant also objected to the exhibit itself, on the ground that it was cumulative of the witness's testimony. These objections were overruled. The prosecutor then read the statements contained in the exhibit, each of which Martinez acknowledged making. Appellant does not complain of the prosecutor reading the statements to Martinez, or of having Martinez admit before the jury that he made the statements. Instead, appellant complains only of the admission of the exhibit containing the enlargement of the statements. Appellant contends that the admission of the exhibit violated evidence rule 613(b) because Martinez admitted having a bias in favor of appellant. See Tex. R. Evid.",
"613(b) (examining witness concerning bias or interest). In appellant's view, exhibit 55 was extrinsic evidence showing an admitted bias. See id. Whatever the merits of this argument, it was not made to the district court and therefore not preserved for appeal. Tex. R. Evid. 33.1(a); Tex. R. Evid. 103(a). Further, we are satisfied that any error in the admission of exhibit 55 was harmless under the circumstances. See Tex. R. App. P. 44.2(b).",
"Point of error five is overruled. Next, appellant contends the court erred by admitting extraneous misconduct testimony by a witness who could not identify appellant. Saletus Smith testified that he and his girlfriend encountered a drunken woman outside their apartment on the night of October 10, 1998. (2) Smith testified that the woman was extremely intoxicated, accused him of stealing her food stamp card, and threatened to shoot him. Smith and his girlfriend managed to get away from the woman, and called the police from a nearby store. At the conclusion of Smith's testimony, to which appellant voiced no objection, the witness was asked if the woman he encountered on October 10 was present in the courtroom. Smith said he could not make a positive identification. The prosecutor then asked Smith if anyone in the courtroom \"looks similar\" to the woman. Appellant voiced her only objection at this point: \"That's an improper question, whether or not he can identify her or not.",
"He's already answered the question.\" The objection was overruled. The question was repeated and Smith answered, \"I couldn't tell.\" Appellant argues that the court should not have permitted testimony regarding extraneous misconduct that could not be affirmatively linked to her. This objection was not made to the district court. See Tex. R. App. P. 33.1(a). In any event, the next witness for the State was the police officer who responded to Smith's call.",
"The officer positively identified appellant as the person he arrested at Smith's apartment complex after Smith identified her at the scene as the woman who threatened him. Point of error four is overruled. In point of error one, appellant contends the district court erred by prohibiting her from impeaching a State witness, San Marcos police officer Dan Misiaszek. During cross-examination by defense counsel, Misiaszek was asked if he ever told appellant she would \"get the needle\" if she did not confess. The officer replied that he never personally spoke to appellant. Later, during her own testimony, appellant told the jury that a detective who \"looked like the same guy that was up here the other day, but except his hair was combed different\" spoke to her while she was in jail. The State's objection to the relevance of this conversation was sustained, and appellant was not permitted to tell the jury that this detective said \"he knew what happened and that I better say the truth and tell them that Joe was in it with me because if not I was going to life or death penalty no matter what I said, and that he knew I did it, and that he knew why, and he scared me.\" In the trial court, appellant urged that the excluded statement was admissible under evidence rule 613(a), which permits impeachment by proof of a prior inconsistent statement. Tex.",
"R. Evid. 613(a). Appellant does not now contend that her proffered testimony was a prior inconsistent statement by the detective. Instead, she argues on appeal that the district court's ruling infringed on her constitutional right to confront the witnesses through cross-examination. U.S. Const. amend. VI; Tex. Const. art. I, § 10; see Davis v. Alaska, 415 U.S. 308, 315 (1974); Rankin v. State, 41 S.W.3d 335, 344 (Tex. App.--Fort Worth 2001, no pet.",
"hist.). The contention appellant now advances does not comport with her trial objection. Tex. R. App. P. 33.1(a). Moreover, her argument to this Court does not comport with the ruling of which she complains. The district court's ruling excluded appellant's own testimony; the court did not limit her cross-examination of Officer Misiaszek. In fact, appellant does not refer us to any limitation placed on her cross-examination of the officer. Finally, we note that appellant was permitted to testify that a detective who \"looked like [him]\" talked to her, thereby impeaching the officer's testimony denying such a conversation. No reversible error is presented and point of error one is overruled. In point of error three, appellant complains that the reporter's record does not indicate the name of several venire members who made statements during voir dire. Appellant contends that the prosecutor should have indicated the name of each venire member with whom he spoke. Appellant complains that without the names, it is impossible to determine if the panelists who indicated that they could not follow the law were in fact struck from the jury. She concedes that there is no authority supporting her contention.",
"After both attorneys completed their questioning of the panel, the State challenged six panelists by name. Appellant agreed to four of the challenges, which were immediately granted. The two other panelists challenged by the State were questioned individually and the challenges were then granted. Appellant voiced no objection and does not now contend that any of the State's challenges were erroneously granted. Appellant also challenged three panelists. Two of these challenges were granted, and the other panelist did not serve on the jury because he was outside the strike zone. The record reflects that appellant had a full and fair opportunity both to challenge panelists and to object to the State's challenges. The failure to record the names of panelists as they spoke to the attorneys during voir dire of the panel has not been shown to have harmed appellant.",
"Point of error three is overruled. Finally, appellant contends the court's jury charge \"omitted the proper standard of proof applicable to the affirmative defense of self-defense.\" Appellant urges that the court should have instructed the jury that she had to prove the existence of the affirmative defense by a preponderance of the evidence. See Tex. Penal Code Ann. § 2.04(d) (West 1994). This point of error is premised on a mistaken understanding of the applicable law.",
"Self-defense is a justification. Id. § 9.31(a) (West Supp. 2001). Justification is a defense, not an affirmative defense. Id. § 9.02 (West 1994). If the existence of a defense is submitted to the jury, the court must charge that a reasonable doubt on the issue requires that the defendant be acquitted. Id. § 2.03(d). The district court's jury charge in this cause properly placed the burden on the State to prove beyond a reasonable doubt that appellant did not act in self-defense when she stabbed the victim. Point of error two is overruled. The judgment of conviction is affirmed. __________________________________________ Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: August 30, 2001 Do Not Publish 1. The statements were supportive of appellant. Martinez indicated that he was trying to raise money for appellant's bail. He also told her, \"[Y]ou need to face what you did .",
". . [but] God being with us, we can lower that sentence . . . .\" 2. The record reflects that this encounter took place about forty-five minutes after the victim was stabbed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2863768/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
18 Cal. App. 2d 763 (1937) In the Matter of the Estate of CLEMENT DOTTA, etc., Deceased. VIRGINIA GILLEN et al., Respondents, v. CARLO DOTTA et. al., Appellants. Civ. No. 10408. California Court of Appeals. First Appellate District, Division Two. January 29, 1937. Rittenhouse & Snyder for Appellants. Donald Younger for Respondents. Nourse, P. J. The appellants appeal from a judgment and order denying probate of two letters offered for probate as the last will of deceased. [1] The appellants state the question involved as follows: "Clement Dotta on March 30, 1924, wrote a letter addressed to his illegitimate son, Carlo Dotta, which letter was dated and signed and entirely written in the handwriting of Clement Dotta. The writer first assured his son that he was alive and then provided as follows: 'In the event I should really die, all my belongings shall be yours.' A letter written October 22, 1930, by the testator in his own handwriting to his son, Carlo Dotta, which was signed and dated, contained the following provision: "As I have told you, all I possess is yours.' Are these expressions testamentary in nature, and if so do they constitute an holographic will?"" The ruling of the probate court was founded on the rule of Estate of Meade, 118 Cal. 428 [50 P. 541, 62 Am. St. Rep. 244], Estate of Kelleher, 202 Cal. 124 [259 P. 437, 54 A.L.R. 913], and Estate of Button, 209 Cal. 325 [287 P. 964], all holding that, in order for a document to be the last will of a deceased person, it must appear therefrom that the decedent intended by the very paper itself to make a disposition of his property in favor of the party claiming thereunder. From the early decision in Clarke v. Ransom, 50 Cal. 595, 600, it has been held that "in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of these circumstances". *765 The probate court followed this rule and found from the evidence of the surrounding circumstances that the deceased did not intend either of the letters as making a disposition of his property. The appellants do not claim that there was any error in the proceedings below, they merely ask that we give a different judgment. But the question is a mixed one of law and fact and, since no error is shown in the application of the rules of law to the facts proved, the determination of the probate court should stand. The judgment is affirmed. Sturtevant, J., and Spence, J., concurred. | 10-30-2013 | [
"18 Cal. App. 2d 763 (1937) In the Matter of the Estate of CLEMENT DOTTA, etc., Deceased. VIRGINIA GILLEN et al., Respondents, v. CARLO DOTTA et. al., Appellants. Civ. No. 10408. California Court of Appeals. First Appellate District, Division Two. January 29, 1937. Rittenhouse & Snyder for Appellants. Donald Younger for Respondents. Nourse, P. J. The appellants appeal from a judgment and order denying probate of two letters offered for probate as the last will of deceased. [1] The appellants state the question involved as follows: \"Clement Dotta on March 30, 1924, wrote a letter addressed to his illegitimate son, Carlo Dotta, which letter was dated and signed and entirely written in the handwriting of Clement Dotta.",
"The writer first assured his son that he was alive and then provided as follows: 'In the event I should really die, all my belongings shall be yours.' A letter written October 22, 1930, by the testator in his own handwriting to his son, Carlo Dotta, which was signed and dated, contained the following provision: \"As I have told you, all I possess is yours.' Are these expressions testamentary in nature, and if so do they constitute an holographic will?\"\" The ruling of the probate court was founded on the rule of Estate of Meade, 118 Cal. 428 [50 P. 541, 62 Am. St. Rep. 244], Estate of Kelleher, 202 Cal.",
"124 [259 P. 437, 54 A.L.R. 913], and Estate of Button, 209 Cal. 325 [287 P. 964], all holding that, in order for a document to be the last will of a deceased person, it must appear therefrom that the decedent intended by the very paper itself to make a disposition of his property in favor of the party claiming thereunder. From the early decision in Clarke v. Ransom, 50 Cal. 595, 600, it has been held that \"in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of these circumstances\". *765 The probate court followed this rule and found from the evidence of the surrounding circumstances that the deceased did not intend either of the letters as making a disposition of his property.",
"The appellants do not claim that there was any error in the proceedings below, they merely ask that we give a different judgment. But the question is a mixed one of law and fact and, since no error is shown in the application of the rules of law to the facts proved, the determination of the probate court should stand. The judgment is affirmed. Sturtevant, J., and Spence, J., concurred."
]
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Carter, J.: 1. It is insisted by the seventh ground of demurrer that the review sought by the bill filed by defendant was proper, because (a) no final decree was properly entered in the cause; (b) the decree of June 19th, 1897, was informal and imperfect, and within itself unintelligible, as it can only be read in connection with and by reference to another decree rendered in the samé cause November 25, 1893; (c) that William D. Bloxham, one of the parties to said decree, had ceased to be Comptroller of the State of Florida at the time it was entered. A. If, as contended by defendant, the decree of June 19, 1897, is not a final one, then the bill of review filed was premature; for it is an elementary proposition that such a bill lies only to a final decree. Putnam v. Lewis, 1 Fla. 455; Owens v. Love, 9 Fla. 325; 2 Beach Mod. Eq. Pr., §852; Story’s Eq. Pldg., §408 a. If this was the only objection to the proceeding sought to be prohibited, we might well leave the relators to their remedy by appeal; but we think other grounds for prohibition exist and that the objections to this decree are without force. It is argued by defendant that a decree is final only when it fully decides and disposes of the whole merits of a cause and reserves no further questions or directions for the future judgment of the court; but counsel fail to point out any matter in issue not disposed of by this decree, and there certainly is no reservation .therein of any question for the future judgment of the court. It is said that the-decree is a repetition and recital of the mandate of this court upon the first appeal, reversing certain features of the former decree of November 25, 1893, and leaving the case exactly where it was before that decree was rendered. We do not so construe it. It makes a final disposition of the *312•supplemental bill in the nature of a bill of review; adjudges the entire costs of suit against defendant, reverses those features of the decree of November 25, 1893, which held that the lines of railroad from Wild-wood to Plant City, and from Plant City to Tampa, were subject to taxation, and grants a perpetual injunction against the enforcement of assessments on those lines,' as well as another named. It also reverses that portion of the former decree which held the statute to be unconstitutional under which the assessments were made, and also certain features of the former decree which held that the several lines of railroad sought to be subjected to the payment of taxes were not assessable against the Florida Railway & Navigation Company for 1879, 1880 and 1881, and which enjoined the collection of taxes for those years. It affirms so much of the former decree as held the lines of railroad therein described subject to taxation for certain years named; which refused an injunction against the collection thereof, and which refused to direct a return of taxes collected from the Florida Railway & Navigation Corn-pan}'-. It seems to us that this decree finally disposes of every question involved in the case. It certainly leaves nothing open for future decision, nor does it contemplate that any further action is to be had in the cause, other than to enforce the decree rendered. It was wholly unnecessary for the Circuit Court to “reverse” or “affirm” any portion of its former decree, as the judgment and mandate of this court, upon the appeal therefrom, operated directly upon thát decree without the intervention of any action of the Circuit Court. Merritt v. Jenkins, 17 Fla. 593. While there may be some technical objections to the form of the decree of June 19, 1897, it is, when construed in connection with *313the pleadings, the former decree and the mandate from this court, a definite and intelligible final decree. B. The decree of November 25, 1893, referred to in the decree of June 19, 1897, was a matter of record in the same suit, and the maxim id certum est ,quod certum reddi potest will sustain a decree in equity which refers to record data'for determining what is otherwise uncertain on the face of the decree. 5 Ency. Pl. & Pr., p. 1067, and authorities cited; Shepard v. Kelly, 2 Fla. 634. C. If there is any merit in the contention that a defect of parties existed at the time of the rendition of the decree of June 19, 1897, because Governor Bloxham had ceased to be Comptroller, it is difficult to perceive the ground upon which such defect can avail the defendant in this proceeding or become the basis of a bill of review. Governor Bloxham had not ceased to be a party to the suit, although his official capacity had ceased. The decree was entered in his name as Comptroller, but afterwards, and before the bill of review was filed. Comptroller Reynolds, upon defendant’s application “for an order to substitute William H. Reynolds, Comptroller, in place of William D. Bloxham, late Comptroller,” was “made party defendant in place of William D. Bloxham, late Comptroller and defendant herein.” It may have been irregular to thus substitute one party for another in a final decree, but it was done upon defendant’s application and by its consent, and it has no ground to complain that the error, if any, in the final decree for want of proper parties was corrected upon its own application before its bill of review was filed. II. A. The first, second, fourth and fifth grounds of demurrer will be considered together. Upon the appeal from the decree of November 25, 1893, this court *314considered and decided every question involved in the case at that time, and left nothing open for the decision of the Circuit Court. The Circuit Court, instead of obeying the mandate issued upon the judgment of this court, granted defendant leave to file a supplemental bill in the nature of a bill of review, and entertained jurisdiction of the bill filed in accordance with sueh leave. Upon appeal from an order overruling a demurrer to that bill, this court held that where an appellate court affirms a decree of the Circuit Court, or when such a decree is modified on appeal, either as to questions of law or fact necessarily involved, with directions for further proceedings consistent with the opinion, the Circuit Court has no authority to open the case for a new trial or to enter any other judgment than that directed to be entered, unless authority to do so is expressly given by the appellate court; that when the appellate court has examined the record of a cause, and affirmed the decree appealed from, or has modified or reversed such decree, with directions as to the decree to be entered, whether the decision was on questions of law or fact, it is not the province of the court a quo to allow further proceedings, but -the judgment and mandate of the appellate court must be obeyed. Bloxham v. Florida Central & Peninsular Railway Co., 39 Fla. 243, 22 South. Rep. 697. This holding is not only in accordance with our Constitution and statutes, but it inevitably results from the inherent nature of courts of error and trial courts. The Supreme Court of this State is the final arbiter of all questions of law and fact properly presented to it by appeals from other courts. The superior authority of its judgments depends upon the jurisdiction of the court to render them, and not upon the question as to whether they are right or wrong. There is and can be no authority in an inferior court to correct *315mistakes made by this court in its conclusions of fact; or its interpretation of the law. An appeal to a superior court to correct errors committed by an inferior one can not be followed by proceedings in the inferior to correct errors committed by the superior. If so litigation would be interminable, the superior would be subordinated to the inferior, and the judgments of the superior could only be enforced when they coincided with the judgments of the inferior. The defendant does not deny that this court had jurisdiction of the subject-matter and the parties, and to render the judgment rendered by us upon the first appeal. In its petition to file the bill of review defendant does not deny such jurisdiction, but it claims that this court reached a certain conclusion of fact necessary to be determined, by a wholly mistaken view of facts not in issue in the case, or submitted, and upon an interpretation of the statements of the bill entirely at variance with the facts as they existed, and the understanding and purport of such statements at the hearing below, and that this court ought to have found as a matter of fact from the allegations of the bill and the answer that defendant was an innocent purchaser of the lines of road assessed for taxes, and consequently not liable for same. It is insisted by the petition that these were errors of law apparent upon the face of the decree, and that for this reason the whole decree should be reviewed and reversed, and a decree entered directly the reverse of the one directed by this court. It is not contended that Judge White erred in any of his conclusions, but he is asked to find that this court did err, and to set aside its findings and judgment and substitute his own therefor, tie is asked to invade our jurisdiction, to deny the authority and binding force of our judgments and to proceed to set them aside because he may think them wrong. It is *316a familiar rule of law that one court in proceedings not appellate has no power to review or reverse, or disregard the judgment of another court of equal or even inferior authority for errors of law or fact not affecting-jurisdiction. How much stronger do the reasons for such a rule become when allied to the judgments of superior courts. The Circuit Court was without power under any circumstances to set aside, reverse or annul the judgment of this court rendered upon the 'former appeal, or to review the decree entered in obedience thereto, for alleged errors of law or fact committed by us in rendering our judgment. The attempted exercise of such a power is subversive of that subordination which has been established by the Constitution. It not only assumes a jurisdiction nowhere granted to the Circuit Courts, but usurps that which appertains to this court, or some other to which an appeal may be taken. The question is not one of procedure, it is one of power; of jurisdiction over the subject-matter. When the mandate of this court goes to the court below, directing the entry of a specific judgment, that court has no discretion in the matter of obedience thereto. It is without power to say that the judgment was wrong; its duty, and only duty, is to obey the mandate. It is charged with no responsibility for the errors alleged to have been committed by this court, nor does it possess any power to correct them. For these reasons a bill does not lie in that court to review errors attributable to this court upon the face of a decree affirmed by it or one entered in pursuance of its mandate. Perry v. Tupper, 71 N. C. 380; Pinkney v. Jay, 12 Gill & J. 69; Stallworth v. Blum, 50 Ala. 46; Lore v. Hash, 89 Va. 277, 15 S. E. Rep. 549; Inman, Swann & Co. v. Foster, 72 Ga. 79; Meyer v. Johnson, 60 Ark. 50, 28 S. W. Rep. 797; Brewer v. Bowman, 3 J. J. Marsh, 492, S. C. 20 Am. *317Dec. 158; Southard v. Russell, 16 How. 547; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. Rep. 638; Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. Rep. 611; Dennison v. Goehring, 6 Pa. St. 402. B. It is insisted that the Circuit Court in granting permission to file the bill of review was acting under the authority given by this court upon appeal from the order overruling the demurrer to the supplemental bill in the nature of a bill of review. In that case (39 Fla. 243, 22 South. Rep. 697) it was said that the petition for leave to file a supplemental bill in the nature of a bill of review, considered with the bill permitted to be filed in the lower court, could not be regarded as affording any sufficient ground for reviewing the judgment directed to be entered by this court under its mandate, if it had been entered, beyond the exemption of taxation in question of the line of railroad from Jacksonville to Chattahoochee. The court said: “We are satisfied from the entire record before us that there is sufficient shown to authorize this court to grant leave to appellee to be heard on an application in the Circuit Court to file a bill of review of the judgment when entered to the extent of the line of railroad and branches from Jacksonville to Chattahoochee, formerly known as the Florida Central & Western Railroad Company, and after a careful examination of all that has been disclosed we are of opinion that justice requires that an order be made in this court granting permission to appellee to be further heard in the Circuit Court to .the extent mentioned on account of the alleged newly discovered matter.” The leave granted the company did not extend to a review of the decree as to all of the defendant’s property, nor as to errors committed by this court, but the leave was expressly confined to the line of road from Jacksonville to Chattahoochee and *318branches, and extended no further than a ■ review for newly discovered matters. In the same connection the Circuit Court was advised that it had no authority to entertain a bill to review the decree to be entered by it, unless the appellate court had given permission to one of the parties to apply for leave to file such a bill. When defendant applied for leave to file a bill to review the entire decree, it exceeded the permission granted it, and when the Circuit Judge granted leave to file such a bill he acted in disregard of a judgment of this court rendered in the same cause that such a bill could not be filed without leave first obtained from this court. This judgment had become res judicata, the principles announced in the opinion had become the law of the case binding alike upon the parties and the court. Wilson v. Fridenberg, 21 Fla. 386. Under these circumstances the relators remedy by appeal is inadequate as well as useless. The matter has already passed to final judgment in this court and if that judgment is enforced the proceedings in the Circuit Court in disregard thereof will cease. We are given power (Section 5, Article V, Constitution 1885) to issue all writs “necessary or proper to the complete exercise of” our jurisdiction. There is no doubt that the attempt to open up for review the decree entered in pursuance of our mandate, for errors committed by us, as well as the attempt to exercise jurisdiction over other features of the decree in disregard of our decision that such jurisdiction must not be exercised without leave first granted by this court, constitute an unwarranted interfence with and disregard of the judgments of this court, for the correction of which prohibition is the proper remedy. State ex rel Wolferman v. Superior Court, 8 Wash. 591, 36 Pac. Rep. 443; Harriman v. County Commissioners, 53 Me. 83. III. The third ground of the demurrer is untenable. *319The order granting leave to file the bill of review does not show that relators were present when it was made. It recites that notice had been given them, which would indicate that they were not present. The notice served upon them stated that the application would be made under the permission granted by this court in its opinion and by its mandate sent down May 24, 1897, and the notice did not intimate that the application would be broader than the permission granted. At any rate the relators demurred to the bill filed, on the ground that it sought to review the decree as'to lines of road other than those mentioned! in the order from this court granting leave, and this action of the relators followed by the suggestion for prohibition in this court, indicates very clearly that they have not waived their right to this remedy, nor given their consent for the Circuit Court to review the decree in respects not authorized by this court, even if such consent could give it jürisdiction so to do. IV. As to the sixth ground of demurrer, the Circuit Court has already taken a step in the exercise of an assumed jurisdiction to review the decree for alleged errors of law and in other respects not authorized. The order made permitted the filing of a bill of review as prayed in the petition. The prayer of the petition was for leave to file a bill to review the decree for newly discovered evidence and the error in law appearing on the face of the decree. It appeared upon the face of the petition presented to the'judge that the permission desired was to review the entire decree for errors committed by this court, and that permission had not been obtained from this court to review any part of the decree except that relating to the line of road from Jacksonville to Chattahoochee and branches, and that only for newly discovered matters. The petition on its face dis*320closed a lack of jurisdiction in the Circuit Court to grant part of the relief prayed, and instead of confining the leave to file 'the bill within the limits of the permission granted by this court, the Circuit Court granted the leave in accordance with the prayer of the petition, and thereby assumed and exercised authority denied by this court, and a jurisdiction clearly beyond its powers. Under these circumstances it was not necessary for relators to tender a plea to the jurisdiction in the Circuit Court and obtain a ruling thereon before resorting to the remedy by prohibition. Where the want or excess of jurisdiction relates to the subject-matter, and is apparent upon the face of the proceedings, and the court has made some order in the exercise of such unauthorized jurisdiction, as is the case here, prohibition will lie, even though no plea to the jurisdiction has been tendered. While there are some authorities to the contrary, we think this was clearly the rule of the common law, and, therefore, binding upon us. Wadsworth v. Queen of Spain, 17 Ad. & E. (N. S.) 215; Mayor v. Cox, L. R. 2 E. & I. App. Cas. 239; Farquharson v. Morgan, L. R. 1 Q. B. Div. 552; Swinburn v. Smith, 15 W. Va. 483; State v. Wilcox, 24 Minn. 143; United States v. Peters, 3 Del. 121; Ex parte Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. Rep. 25. Y. It is insisted in argument that the suggestion does not deny that the Circuit Court has jurisdiction to review the decree to the extent of the line of road from Jacksonville to Chattahoochee with branches, for newly discovered matter, but that it prays for a prohibition against any further proceedings whatever upon the bill for review filed. It is claimed that the writ ought to be refused because if issued it must be as broad as the prayer therefor. In this case we might properly issue the writ in strict accordance with the prayer, he-*321cause the bill filed does seek to review the whole decree for errors of law, which we have seen is wholly unauthorized. The rule in mandamus requires the peremptory to be as broad as the alternative writ (State ex rel. Moody v. Call, 39 Fla. 165, 22 South. Rep. 266), but we have found no authority for the proposition that the writ of prohibition must be refused if it is determined that it can not be granted to the extent prayed in the suggestion. It was held in Queen v. Local Government Board, L. R. 10 Q. B. Div., 309, that where a party applies for a prohibition, and asks the court to prohibit another court more than he ought to ask for, yet nevertheless if part of his request turns out to be well founded the court ought to mould the prohibition and to limit it to only so much of his request as is well founded. We think this is the true rule; and if we issue the writ in this case, it can be so framed as to prohibit only the excess of jurisdiction assumed by the Circuit Court: for prohibition lies to restrain an excess of jurisdiction, as well as to prevent a court from proceeding in a case where it has no jurisdiction whatever. State ex rel. Floral City Phosphate Co. v. Hocker, 33 Fla. 283, 14 South. Rep. 586. The demurrer to the suggestion is overruled, with leave to defendant to plead on or before 10 o’clock A. M. Saturday, 30th inst. | 09-22-2021 | [
"Carter, J.: 1. It is insisted by the seventh ground of demurrer that the review sought by the bill filed by defendant was proper, because (a) no final decree was properly entered in the cause; (b) the decree of June 19th, 1897, was informal and imperfect, and within itself unintelligible, as it can only be read in connection with and by reference to another decree rendered in the samé cause November 25, 1893; (c) that William D. Bloxham, one of the parties to said decree, had ceased to be Comptroller of the State of Florida at the time it was entered. A.",
"If, as contended by defendant, the decree of June 19, 1897, is not a final one, then the bill of review filed was premature; for it is an elementary proposition that such a bill lies only to a final decree. Putnam v. Lewis, 1 Fla. 455; Owens v. Love, 9 Fla. 325; 2 Beach Mod. Eq. Pr., §852; Story’s Eq. Pldg., §408 a. If this was the only objection to the proceeding sought to be prohibited, we might well leave the relators to their remedy by appeal; but we think other grounds for prohibition exist and that the objections to this decree are without force. It is argued by defendant that a decree is final only when it fully decides and disposes of the whole merits of a cause and reserves no further questions or directions for the future judgment of the court; but counsel fail to point out any matter in issue not disposed of by this decree, and there certainly is no reservation .therein of any question for the future judgment of the court.",
"It is said that the-decree is a repetition and recital of the mandate of this court upon the first appeal, reversing certain features of the former decree of November 25, 1893, and leaving the case exactly where it was before that decree was rendered. We do not so construe it. It makes a final disposition of the *312•supplemental bill in the nature of a bill of review; adjudges the entire costs of suit against defendant, reverses those features of the decree of November 25, 1893, which held that the lines of railroad from Wild-wood to Plant City, and from Plant City to Tampa, were subject to taxation, and grants a perpetual injunction against the enforcement of assessments on those lines,' as well as another named. It also reverses that portion of the former decree which held the statute to be unconstitutional under which the assessments were made, and also certain features of the former decree which held that the several lines of railroad sought to be subjected to the payment of taxes were not assessable against the Florida Railway & Navigation Company for 1879, 1880 and 1881, and which enjoined the collection of taxes for those years.",
"It affirms so much of the former decree as held the lines of railroad therein described subject to taxation for certain years named; which refused an injunction against the collection thereof, and which refused to direct a return of taxes collected from the Florida Railway & Navigation Corn-pan}'-. It seems to us that this decree finally disposes of every question involved in the case. It certainly leaves nothing open for future decision, nor does it contemplate that any further action is to be had in the cause, other than to enforce the decree rendered. It was wholly unnecessary for the Circuit Court to “reverse” or “affirm” any portion of its former decree, as the judgment and mandate of this court, upon the appeal therefrom, operated directly upon thát decree without the intervention of any action of the Circuit Court.",
"Merritt v. Jenkins, 17 Fla. 593. While there may be some technical objections to the form of the decree of June 19, 1897, it is, when construed in connection with *313the pleadings, the former decree and the mandate from this court, a definite and intelligible final decree. B. The decree of November 25, 1893, referred to in the decree of June 19, 1897, was a matter of record in the same suit, and the maxim id certum est ,quod certum reddi potest will sustain a decree in equity which refers to record data'for determining what is otherwise uncertain on the face of the decree.",
"5 Ency. Pl. & Pr., p. 1067, and authorities cited; Shepard v. Kelly, 2 Fla. 634. C. If there is any merit in the contention that a defect of parties existed at the time of the rendition of the decree of June 19, 1897, because Governor Bloxham had ceased to be Comptroller, it is difficult to perceive the ground upon which such defect can avail the defendant in this proceeding or become the basis of a bill of review. Governor Bloxham had not ceased to be a party to the suit, although his official capacity had ceased.",
"The decree was entered in his name as Comptroller, but afterwards, and before the bill of review was filed. Comptroller Reynolds, upon defendant’s application “for an order to substitute William H. Reynolds, Comptroller, in place of William D. Bloxham, late Comptroller,” was “made party defendant in place of William D. Bloxham, late Comptroller and defendant herein.” It may have been irregular to thus substitute one party for another in a final decree, but it was done upon defendant’s application and by its consent, and it has no ground to complain that the error, if any, in the final decree for want of proper parties was corrected upon its own application before its bill of review was filed. II. A.",
"The first, second, fourth and fifth grounds of demurrer will be considered together. Upon the appeal from the decree of November 25, 1893, this court *314considered and decided every question involved in the case at that time, and left nothing open for the decision of the Circuit Court. The Circuit Court, instead of obeying the mandate issued upon the judgment of this court, granted defendant leave to file a supplemental bill in the nature of a bill of review, and entertained jurisdiction of the bill filed in accordance with sueh leave. Upon appeal from an order overruling a demurrer to that bill, this court held that where an appellate court affirms a decree of the Circuit Court, or when such a decree is modified on appeal, either as to questions of law or fact necessarily involved, with directions for further proceedings consistent with the opinion, the Circuit Court has no authority to open the case for a new trial or to enter any other judgment than that directed to be entered, unless authority to do so is expressly given by the appellate court; that when the appellate court has examined the record of a cause, and affirmed the decree appealed from, or has modified or reversed such decree, with directions as to the decree to be entered, whether the decision was on questions of law or fact, it is not the province of the court a quo to allow further proceedings, but -the judgment and mandate of the appellate court must be obeyed.",
"Bloxham v. Florida Central & Peninsular Railway Co., 39 Fla. 243, 22 South. Rep. 697. This holding is not only in accordance with our Constitution and statutes, but it inevitably results from the inherent nature of courts of error and trial courts. The Supreme Court of this State is the final arbiter of all questions of law and fact properly presented to it by appeals from other courts.",
"The superior authority of its judgments depends upon the jurisdiction of the court to render them, and not upon the question as to whether they are right or wrong. There is and can be no authority in an inferior court to correct *315mistakes made by this court in its conclusions of fact; or its interpretation of the law. An appeal to a superior court to correct errors committed by an inferior one can not be followed by proceedings in the inferior to correct errors committed by the superior.",
"If so litigation would be interminable, the superior would be subordinated to the inferior, and the judgments of the superior could only be enforced when they coincided with the judgments of the inferior. The defendant does not deny that this court had jurisdiction of the subject-matter and the parties, and to render the judgment rendered by us upon the first appeal. In its petition to file the bill of review defendant does not deny such jurisdiction, but it claims that this court reached a certain conclusion of fact necessary to be determined, by a wholly mistaken view of facts not in issue in the case, or submitted, and upon an interpretation of the statements of the bill entirely at variance with the facts as they existed, and the understanding and purport of such statements at the hearing below, and that this court ought to have found as a matter of fact from the allegations of the bill and the answer that defendant was an innocent purchaser of the lines of road assessed for taxes, and consequently not liable for same. It is insisted by the petition that these were errors of law apparent upon the face of the decree, and that for this reason the whole decree should be reviewed and reversed, and a decree entered directly the reverse of the one directed by this court.",
"It is not contended that Judge White erred in any of his conclusions, but he is asked to find that this court did err, and to set aside its findings and judgment and substitute his own therefor, tie is asked to invade our jurisdiction, to deny the authority and binding force of our judgments and to proceed to set them aside because he may think them wrong. It is *316a familiar rule of law that one court in proceedings not appellate has no power to review or reverse, or disregard the judgment of another court of equal or even inferior authority for errors of law or fact not affecting-jurisdiction. How much stronger do the reasons for such a rule become when allied to the judgments of superior courts.",
"The Circuit Court was without power under any circumstances to set aside, reverse or annul the judgment of this court rendered upon the 'former appeal, or to review the decree entered in obedience thereto, for alleged errors of law or fact committed by us in rendering our judgment. The attempted exercise of such a power is subversive of that subordination which has been established by the Constitution. It not only assumes a jurisdiction nowhere granted to the Circuit Courts, but usurps that which appertains to this court, or some other to which an appeal may be taken. The question is not one of procedure, it is one of power; of jurisdiction over the subject-matter. When the mandate of this court goes to the court below, directing the entry of a specific judgment, that court has no discretion in the matter of obedience thereto. It is without power to say that the judgment was wrong; its duty, and only duty, is to obey the mandate. It is charged with no responsibility for the errors alleged to have been committed by this court, nor does it possess any power to correct them.",
"For these reasons a bill does not lie in that court to review errors attributable to this court upon the face of a decree affirmed by it or one entered in pursuance of its mandate. Perry v. Tupper, 71 N. C. 380; Pinkney v. Jay, 12 Gill & J. 69; Stallworth v. Blum, 50 Ala. 46; Lore v. Hash, 89 Va. 277, 15 S. E. Rep. 549; Inman, Swann & Co. v. Foster, 72 Ga. 79; Meyer v. Johnson, 60 Ark. 50, 28 S. W. Rep. 797; Brewer v. Bowman, 3 J. J. Marsh, 492, S. C. 20 Am.",
"*317Dec. 158; Southard v. Russell, 16 How. 547; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. Rep. 638; Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. Rep. 611; Dennison v. Goehring, 6 Pa. St. 402. B. It is insisted that the Circuit Court in granting permission to file the bill of review was acting under the authority given by this court upon appeal from the order overruling the demurrer to the supplemental bill in the nature of a bill of review.",
"In that case (39 Fla. 243, 22 South. Rep. 697) it was said that the petition for leave to file a supplemental bill in the nature of a bill of review, considered with the bill permitted to be filed in the lower court, could not be regarded as affording any sufficient ground for reviewing the judgment directed to be entered by this court under its mandate, if it had been entered, beyond the exemption of taxation in question of the line of railroad from Jacksonville to Chattahoochee. The court said: “We are satisfied from the entire record before us that there is sufficient shown to authorize this court to grant leave to appellee to be heard on an application in the Circuit Court to file a bill of review of the judgment when entered to the extent of the line of railroad and branches from Jacksonville to Chattahoochee, formerly known as the Florida Central & Western Railroad Company, and after a careful examination of all that has been disclosed we are of opinion that justice requires that an order be made in this court granting permission to appellee to be further heard in the Circuit Court to .the extent mentioned on account of the alleged newly discovered matter.” The leave granted the company did not extend to a review of the decree as to all of the defendant’s property, nor as to errors committed by this court, but the leave was expressly confined to the line of road from Jacksonville to Chattahoochee and *318branches, and extended no further than a ■ review for newly discovered matters. In the same connection the Circuit Court was advised that it had no authority to entertain a bill to review the decree to be entered by it, unless the appellate court had given permission to one of the parties to apply for leave to file such a bill.",
"When defendant applied for leave to file a bill to review the entire decree, it exceeded the permission granted it, and when the Circuit Judge granted leave to file such a bill he acted in disregard of a judgment of this court rendered in the same cause that such a bill could not be filed without leave first obtained from this court. This judgment had become res judicata, the principles announced in the opinion had become the law of the case binding alike upon the parties and the court. Wilson v. Fridenberg, 21 Fla. 386. Under these circumstances the relators remedy by appeal is inadequate as well as useless. The matter has already passed to final judgment in this court and if that judgment is enforced the proceedings in the Circuit Court in disregard thereof will cease. We are given power (Section 5, Article V, Constitution 1885) to issue all writs “necessary or proper to the complete exercise of” our jurisdiction. There is no doubt that the attempt to open up for review the decree entered in pursuance of our mandate, for errors committed by us, as well as the attempt to exercise jurisdiction over other features of the decree in disregard of our decision that such jurisdiction must not be exercised without leave first granted by this court, constitute an unwarranted interfence with and disregard of the judgments of this court, for the correction of which prohibition is the proper remedy.",
"State ex rel Wolferman v. Superior Court, 8 Wash. 591, 36 Pac. Rep. 443; Harriman v. County Commissioners, 53 Me. 83. III. The third ground of the demurrer is untenable. *319The order granting leave to file the bill of review does not show that relators were present when it was made. It recites that notice had been given them, which would indicate that they were not present. The notice served upon them stated that the application would be made under the permission granted by this court in its opinion and by its mandate sent down May 24, 1897, and the notice did not intimate that the application would be broader than the permission granted. At any rate the relators demurred to the bill filed, on the ground that it sought to review the decree as'to lines of road other than those mentioned! in the order from this court granting leave, and this action of the relators followed by the suggestion for prohibition in this court, indicates very clearly that they have not waived their right to this remedy, nor given their consent for the Circuit Court to review the decree in respects not authorized by this court, even if such consent could give it jürisdiction so to do.",
"IV. As to the sixth ground of demurrer, the Circuit Court has already taken a step in the exercise of an assumed jurisdiction to review the decree for alleged errors of law and in other respects not authorized. The order made permitted the filing of a bill of review as prayed in the petition. The prayer of the petition was for leave to file a bill to review the decree for newly discovered evidence and the error in law appearing on the face of the decree. It appeared upon the face of the petition presented to the'judge that the permission desired was to review the entire decree for errors committed by this court, and that permission had not been obtained from this court to review any part of the decree except that relating to the line of road from Jacksonville to Chattahoochee and branches, and that only for newly discovered matters. The petition on its face dis*320closed a lack of jurisdiction in the Circuit Court to grant part of the relief prayed, and instead of confining the leave to file 'the bill within the limits of the permission granted by this court, the Circuit Court granted the leave in accordance with the prayer of the petition, and thereby assumed and exercised authority denied by this court, and a jurisdiction clearly beyond its powers.",
"Under these circumstances it was not necessary for relators to tender a plea to the jurisdiction in the Circuit Court and obtain a ruling thereon before resorting to the remedy by prohibition. Where the want or excess of jurisdiction relates to the subject-matter, and is apparent upon the face of the proceedings, and the court has made some order in the exercise of such unauthorized jurisdiction, as is the case here, prohibition will lie, even though no plea to the jurisdiction has been tendered.",
"While there are some authorities to the contrary, we think this was clearly the rule of the common law, and, therefore, binding upon us. Wadsworth v. Queen of Spain, 17 Ad. & E. (N. S.) 215; Mayor v. Cox, L. R. 2 E. & I. App. Cas. 239; Farquharson v. Morgan, L. R. 1 Q. B. Div. 552; Swinburn v. Smith, 15 W. Va. 483; State v. Wilcox, 24 Minn. 143; United States v. Peters, 3 Del. 121; Ex parte Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. Rep. 25.",
"Y. It is insisted in argument that the suggestion does not deny that the Circuit Court has jurisdiction to review the decree to the extent of the line of road from Jacksonville to Chattahoochee with branches, for newly discovered matter, but that it prays for a prohibition against any further proceedings whatever upon the bill for review filed. It is claimed that the writ ought to be refused because if issued it must be as broad as the prayer therefor. In this case we might properly issue the writ in strict accordance with the prayer, he-*321cause the bill filed does seek to review the whole decree for errors of law, which we have seen is wholly unauthorized.",
"The rule in mandamus requires the peremptory to be as broad as the alternative writ (State ex rel. Moody v. Call, 39 Fla. 165, 22 South. Rep. 266), but we have found no authority for the proposition that the writ of prohibition must be refused if it is determined that it can not be granted to the extent prayed in the suggestion. It was held in Queen v. Local Government Board, L. R. 10 Q. B. Div., 309, that where a party applies for a prohibition, and asks the court to prohibit another court more than he ought to ask for, yet nevertheless if part of his request turns out to be well founded the court ought to mould the prohibition and to limit it to only so much of his request as is well founded.",
"We think this is the true rule; and if we issue the writ in this case, it can be so framed as to prohibit only the excess of jurisdiction assumed by the Circuit Court: for prohibition lies to restrain an excess of jurisdiction, as well as to prevent a court from proceeding in a case where it has no jurisdiction whatever. State ex rel. Floral City Phosphate Co. v. Hocker, 33 Fla. 283, 14 South. Rep. 586. The demurrer to the suggestion is overruled, with leave to defendant to plead on or before 10 o’clock A. M. Saturday, 30th inst."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4915207/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 31.1 SARBANES-OXLEY SECTION 302(a) CERTIFICATION I, Richard Clarke, certify that: 1. I have reviewed this Form 10-Q for the period ended May 31, 2011 of Surna Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and, d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. Date:July 14, 2011 RICHARD CLARKE Richard Clarke Principal Executive Officer | [
"Exhibit 31.1 SARBANES-OXLEY SECTION 302(a) CERTIFICATION I, Richard Clarke, certify that: 1. I have reviewed this Form 10-Q for the period ended May 31, 2011 of Surna Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a.",
"Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and, d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a.",
"All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. Date:July 14, 2011 RICHARD CLARKE Richard Clarke Principal Executive Officer"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments Applicant's arguments filed 11 February 2022 have been fully considered but they are not persuasive. The Applicant argues that nowhere does Zeng disclose “loading an effect package and parsing the effect package to determine semantics for triggering a special effect contained in the effect package” as claimed. The Examiner respectfully disagrees. Zeng discloses that the keyword database can be pre-stored in advance. Pre-storing the keyword database would mean that the entries of the database would be loaded onto the electronic device and parsed accordingly. The evidence of the keyword database being parsed is that the electronic device then uses that database to determine which voice commands comprise a keyword. Once that keyword is determined, then the corresponding effect is applied to the image. For example, if the electronic device receives the voice command that includes the keyword “whitening”, then the RGB value of the image area of the electronic device in the adjusted image, changing the color value of the image area (paragraphs [0034]-0041]). Therefore, when the claim is given its broadest reasonable interpretation, Zeng meets the claimed limitations .
Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 6-15, and 17-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zeng (CN 107820017 A). Regarding claim 1, Zeng discloses a method for triggering a special image effect, comprising: acquiring an original image from an image source and displaying the original image on a 5display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the ; loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait ; collecting a speech in surroundings and recognizing the semantics from the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword); triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 10processing the original image by performing the at least one special effect process to generate and display at least one image effect (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Regarding claim 2, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the acquiring an original image from an image source and displaying the original image on a 15display device comprises: acquiring, by an image acquisition device, an image or video and displaying the image or video on the display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] . Regarding claim 3, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the 20collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting the speech in surroundings in response to a first triggering signal (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and recognizing semantics of the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st . Regarding claim 4, Zeng discloses all of the limitations as previously discussed with respect to claims 1 and 3 including that wherein the 25first triggering signal comprises any one of: a signal generated by a touch at a predetermined position on a screen of a terminal device (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area; Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction); and a signal generated in response to that a predetermined event is recognized from the- 20 -US Patent Application Attorney Docket No. 112704.000208original image (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 6, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the 10collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting speech data from surroundings (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); converting the speech data into text data (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and performing word segmentation on the text data to obtain at least one piece of semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 7, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that 15 wherein the triggering a special effect process in response to that predetermined semantics is recognized from the speech, the predetermined semantics being preset to be associated with at least one effect process, comprises: comparing the semantics recognized from the speech with the predetermined semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); 20and acquiring a processing parameter of the special effect process corresponding to the predetermined semantics, if the predetermined semantics is contained in the semantics recognized from the speech, wherein the predetermined semantics is preset to be corresponding to the at least one 25effect process (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 8, Zeng discloses all of the limitations as previously discussed with respect to claims 1 and 7 including that wherein the processing the original image by the triggered special effect process to generate and display- 21 -US Patent Application Attorney Docket No. 112704.000208the image effect comprises: processing the original image based on the processing parameter to generate the special image effect, and displaying the special image effect on the display device (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). 9, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that 5wherein the effect process comprises one or more of filter processing, deformation processing, sticker processing, and animation processing (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for . Regarding claim 10, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein before 10the collecting a speech in surroundings and recognizing semantics of the speech, the method further comprises: setting a sampling frequency and a sampling resolution for speech collecting (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 11, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein before 15the triggering an effect process in response to that predetermined semantics is recognized from the speech, the method further comprises: setting correspondence between the predetermined semantics and the special image effect, the special image effect comprising the at least one effect process required for generating the image effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 12, Zeng discloses an apparatus for triggering a special image effect, comprising: at least one processor (paragraph [0026] - processor); and a memory configured for storing at least one program (paragraph [0026] - memory), wherein when the at least one program is executed by the at least one processor, the at least one 25processor is caused to perform operations of: acquiring an original image from an image source and displaying the original image on a display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image); loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); collecting a speech in surroundings and recognizing the semantics from the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation ; - 22 -US Patent ApplicationAttorney Docket No. 112704.000208triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and processing the original image by performing the at least one special effect process to generate and 5display at least one image effect (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Regarding claim 13, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the acquiring an original image from an image source and displaying the original image on a display device comprises: acquiring, by an image acquisition device, an image or video and displaying the image or 10video on the display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image). 14, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting the speech in surroundings in response to a first triggering signal (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to ; and 15recognizing semantics of the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). 15, Zeng discloses all of the limitations as previously discussed with respect to claims 12 and 14 including that wherein the first triggering signal comprises any one of: a signal generated by a touch at a predetermined position on a screen of a terminal device (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for ; 20and a signal generated in response to that a predetermined event is recognized from the original image (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 17, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that - 23 -US Patent Applicationwherein the collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting speech data from surroundings (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); converting the speech data into text data (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 5performing word segmentation on the text data to obtain at least one piece of semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st . Regarding claim 18, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the triggering a special effect process in response to that predetermined semantics is recognized from the speech, the predetermined semantics being preset to be associated with at least one effect process, comprises: 10comparing the semantics recognized from the speech with the predetermined semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and acquiring a processing parameter of the special effect process corresponding to the predetermined semantics, if the predetermined semantics is contained in the semantics recognized from the speech, 15wherein the predetermined semantics is preset to be corresponding to the at least one effect process (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 19, Zeng discloses all of the limitations as previously discussed with respect to claims 12 and 18 including that wherein the processing the original image by the triggered special effect process to generate and display the image effect comprises: 20processing the original image based on the processing parameter to generate the special image effect, and displaying the special image effect on the display device (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Regarding claim 20, Zeng discloses a non-transitory computer readable storage medium, configured to store non-transient computer readable instructions, wherein the non-transient computer readable instructions, when 25executed by a computer (paragraph [0026]), cause the computer to perform operations comprising: acquiring an original image from an image source and displaying the original image on a 5display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image); loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); collecting a speech in surroundings and recognizing the semantics from the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword); triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 10processing the original image by performing the at least one special effect process to generate and display at least one image effect (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction).
Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Gharpure et al. (U.S. Patent Application Publication 2021/0183378) discloses a predictive loading component 137 may enable computing device 130 to predictively load content of a physical effect before it is needed. Predictive loading may be the same or similar to prefetching, pre-caching, cache prefetching, other concept, or a combination thereof. In one example, a prediction module 472, a trigger determination module 474, and a content
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HEATHER R JONES whose telephone number is (571)272-7368. The examiner can normally be reached Mon. - Fri.: 9:00am - 5:00pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Vaughn can be reached on (571)272-3922. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For
/HEATHER R JONES/Primary Examiner, Art Unit 2481 March 8, 2022 | 2022-03-13T11:38:44 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant's arguments filed 11 February 2022 have been fully considered but they are not persuasive. The Applicant argues that nowhere does Zeng disclose “loading an effect package and parsing the effect package to determine semantics for triggering a special effect contained in the effect package” as claimed. The Examiner respectfully disagrees. Zeng discloses that the keyword database can be pre-stored in advance. Pre-storing the keyword database would mean that the entries of the database would be loaded onto the electronic device and parsed accordingly.",
"The evidence of the keyword database being parsed is that the electronic device then uses that database to determine which voice commands comprise a keyword. Once that keyword is determined, then the corresponding effect is applied to the image. For example, if the electronic device receives the voice command that includes the keyword “whitening”, then the RGB value of the image area of the electronic device in the adjusted image, changing the color value of the image area (paragraphs [0034]-0041]). Therefore, when the claim is given its broadest reasonable interpretation, Zeng meets the claimed limitations . Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Claims 1-4, 6-15, and 17-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zeng (CN 107820017 A). Regarding claim 1, Zeng discloses a method for triggering a special image effect, comprising: acquiring an original image from an image source and displaying the original image on a 5display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the ; loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait ; collecting a speech in surroundings and recognizing the semantics from the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword); triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 10processing the original image by performing the at least one special effect process to generate and display at least one image effect (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction).",
"Regarding claim 2, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the acquiring an original image from an image source and displaying the original image on a 15display device comprises: acquiring, by an image acquisition device, an image or video and displaying the image or video on the display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] . Regarding claim 3, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the 20collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting the speech in surroundings in response to a first triggering signal (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and recognizing semantics of the speech (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st . Regarding claim 4, Zeng discloses all of the limitations as previously discussed with respect to claims 1 and 3 including that wherein the 25first triggering signal comprises any one of: a signal generated by a touch at a predetermined position on a screen of a terminal device (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area; Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction); and a signal generated in response to that a predetermined event is recognized from the- 20 -US Patent Application Attorney Docket No.",
"112704.000208original image (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 6, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein the 10collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting speech data from surroundings (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); converting the speech data into text data (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and performing word segmentation on the text data to obtain at least one piece of semantics (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"Regarding claim 7, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that 15 wherein the triggering a special effect process in response to that predetermined semantics is recognized from the speech, the predetermined semantics being preset to be associated with at least one effect process, comprises: comparing the semantics recognized from the speech with the predetermined semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); 20and acquiring a processing parameter of the special effect process corresponding to the predetermined semantics, if the predetermined semantics is contained in the semantics recognized from the speech, wherein the predetermined semantics is preset to be corresponding to the at least one 25effect process (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"Regarding claim 8, Zeng discloses all of the limitations as previously discussed with respect to claims 1 and 7 including that wherein the processing the original image by the triggered special effect process to generate and display- 21 -US Patent Application Attorney Docket No. 112704.000208the image effect comprises: processing the original image based on the processing parameter to generate the special image effect, and displaying the special image effect on the display device (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). 9, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that 5wherein the effect process comprises one or more of filter processing, deformation processing, sticker processing, and animation processing (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for .",
"Regarding claim 10, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein before 10the collecting a speech in surroundings and recognizing semantics of the speech, the method further comprises: setting a sampling frequency and a sampling resolution for speech collecting (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"Regarding claim 11, Zeng discloses all of the limitations as previously discussed with respect to claim 1 including that wherein before 15the triggering an effect process in response to that predetermined semantics is recognized from the speech, the method further comprises: setting correspondence between the predetermined semantics and the special image effect, the special image effect comprising the at least one effect process required for generating the image effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"Regarding claim 12, Zeng discloses an apparatus for triggering a special image effect, comprising: at least one processor (paragraph [0026] - processor); and a memory configured for storing at least one program (paragraph [0026] - memory), wherein when the at least one program is executed by the at least one processor, the at least one 25processor is caused to perform operations of: acquiring an original image from an image source and displaying the original image on a display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image); loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); collecting a speech in surroundings and recognizing the semantics from the speech (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation ; - 22 -US Patent ApplicationAttorney Docket No. 112704.000208triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and processing the original image by performing the at least one special effect process to generate and 5display at least one image effect (Fig.",
"2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Regarding claim 13, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the acquiring an original image from an image source and displaying the original image on a display device comprises: acquiring, by an image acquisition device, an image or video and displaying the image or 10video on the display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image). 14, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting the speech in surroundings in response to a first triggering signal (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to ; and 15recognizing semantics of the speech (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"15, Zeng discloses all of the limitations as previously discussed with respect to claims 12 and 14 including that wherein the first triggering signal comprises any one of: a signal generated by a touch at a predetermined position on a screen of a terminal device (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for ; 20and a signal generated in response to that a predetermined event is recognized from the original image (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area). Regarding claim 17, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that - 23 -US Patent Applicationwherein the collecting a speech in surroundings and recognizing semantics of the speech comprises: collecting speech data from surroundings (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); converting the speech data into text data (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 5performing word segmentation on the text data to obtain at least one piece of semantics (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image region, changing the portrait regional color value – electronic device acquires the voice command, if identifies the above-mentioned speech contained in instruction beauty corresponding keyword and beauty grade, may look for the corresponding 1st . Regarding claim 18, Zeng discloses all of the limitations as previously discussed with respect to claim 12 including that wherein the triggering a special effect process in response to that predetermined semantics is recognized from the speech, the predetermined semantics being preset to be associated with at least one effect process, comprises: 10comparing the semantics recognized from the speech with the predetermined semantics (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and acquiring a processing parameter of the special effect process corresponding to the predetermined semantics, if the predetermined semantics is contained in the semantics recognized from the speech, 15wherein the predetermined semantics is preset to be corresponding to the at least one effect process (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area).",
"Regarding claim 19, Zeng discloses all of the limitations as previously discussed with respect to claims 12 and 18 including that wherein the processing the original image by the triggered special effect process to generate and display the image effect comprises: 20processing the original image based on the processing parameter to generate the special image effect, and displaying the special image effect on the display device (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Regarding claim 20, Zeng discloses a non-transitory computer readable storage medium, configured to store non-transient computer readable instructions, wherein the non-transient computer readable instructions, when 25executed by a computer (paragraph [0026]), cause the computer to perform operations comprising: acquiring an original image from an image source and displaying the original image on a 5display device (Fig. 2 – step 202 – obtaining in the preview picture image; paragraphs [0027] and [0028] – the preview image is displayed in the electronic equipment interface – the current scene can be captured by the camera and imaging electronic interface, the electronic display image is a preview image); loading an effect package and parsing the effect package to determine semantics of triggering a special effect contained in the effect package (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig.",
"2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword – the keyword is with the beauty parameter related keyword, for example, for skin, whitening, thinning, big eyes, and the like – for example, electronic equipment receives the voice instruction includes the keyword “for skin”, the electronic equipment in the image smoothing filtering processing to the image region; if the electronic apparatus receives a voice command comprises a keyword “whitening”, the electronic equipment of the image in the RGB value of the image st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); collecting a speech in surroundings and recognizing the semantics from the speech (Fig. 2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation instruction in the extracted keyword – the electronic device can be pre-stored in the keyword database, the electronic apparatus can be voice operation instruction is converted into character information matching with the keyword database, obtaining voice operation contained in instruction keyword); triggering the special effect in response to determining that the semantics is recognized from the speech, the semantics being preset to be associated with at least one special effect process corresponding to the special effect (Fig.",
"2 – step 204 – receiving voice operation instruction, the operation of the voice recognition keyword in the order; Fig. 2 – step 206; paragraphs [0034]-[0041] – the electronic device can also receive the voice of the user operation instruction, to the above-mentioned speech of the operating instructions and voice recognition, voice operation st beauty parameter to the portrait area beauty treatment – for example, electronic device identification to the voice instruction in the keyword “1 level for skin”, the electronic device can adopt the smoothing filter to smooth the portrait area); and 10processing the original image by performing the at least one special effect process to generate and display at least one image effect (Fig. 2 – step 208 – if the received shooting instruction, storage beauty of the treated image; paragraphs [0034]-[0041] – the electronic device after the shooting instruction is received, can store the beauty of the treated image – the shooting instruction can be a voice command, a touch-screen instruction, the keystroke instruction or the line control instruction). Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action.",
"In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Gharpure et al. (U.S. Patent Application Publication 2021/0183378) discloses a predictive loading component 137 may enable computing device 130 to predictively load content of a physical effect before it is needed. Predictive loading may be the same or similar to prefetching, pre-caching, cache prefetching, other concept, or a combination thereof. In one example, a prediction module 472, a trigger determination module 474, and a content Any inquiry concerning this communication or earlier communications from the examiner should be directed to HEATHER R JONES whose telephone number is (571)272-7368. The examiner can normally be reached Mon. - Fri.: 9:00am - 5:00pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Vaughn can be reached on (571)272-3922. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov.",
"Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For /HEATHER R JONES/Primary Examiner, Art Unit 2481 March 8, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-13.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
285 Wis. 2d 806 (2005) 701 N.W.2d 652 2005 WI App 176 STATE v. POEHLMAN[] No. 2004AP002491 CR. Court of Appeals of Wisconsin. June 21, 2005. Affirmed. NOTES [] Petition to review filed. | 10-30-2013 | [
"285 Wis. 2d 806 (2005) 701 N.W.2d 652 2005 WI App 176 STATE v. POEHLMAN[] No. 2004AP002491 CR. Court of Appeals of Wisconsin. June 21, 2005. Affirmed. NOTES [] Petition to review filed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1786532/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0320703
Decision Date: 08/18/03 Archive Date: 08/25/03
DOCKET NO. 99-05 083 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, including posttraumatic stress disorder
(PTSD).
2. Entitlement to a compensable rating for headaches.
REPRESENTATION
Appellant represented by: Mississippi State Veterans
Affairs Board
WITNESSES AT HEARINGS ON APPEAL
Appellant, his spouse, and his mother
ATTORNEY FOR THE BOARD
C. S. Freret, Counsel
REMAND
The veteran had active military service from May 1971 to June
1973.
A determination has been made that additional development is
necessary in the current appeal. Accordingly, further
appellate consideration will be deferred and this case is
REMANDED to the RO for the following actions:
1. Please obtain the veteran's complete
clinical records relating to treatment for
psychiatric disability from the VA Medical
Center (VAMC) in Jackson, Mississippi, since
March 2000.
2. After completion of the above development,
request that the psychiatrist who performed the
March 2003 VA psychiatric examination and
indicated that the veteran had some of the
symptoms of PTSD and may warrant a diagnosis of
subthreshold PTSD, again review the claims
file, particularly in light of the veteran's
treatment for PTSD at the Jackson VAMC and the
May 2003 psychiatric statement from W. G.
Clark, M.D. The VA psychiatrist should be
requested to express an opinion as to whether
the veteran meets the criteria under DSM-IV for
a diagnosis of PTSD. The psychiatrist should
specify what information was used to arrive at
any conclusions, and should provide complete
rationale for all opinions proffered.
3. The RO must review the claims file and
ensure that all notification and development
action required by 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002) and the implementing
regulations are fully complied with and
satisfied.
4. Thereafter, the RO should re-adjudicate the
issue of entitlement to service connection for
an acquired psychiatric disorder, including
PTSD. If the benefit sought on appeal remains
denied, the veteran and his representative
should be provided with a supplemental
statement of the case (SSOC). The SSOC must
contain notice of all relevant actions taken on
the claim for benefits, to include the
applicable law and regulations considered
pertinent to the issue of entitlement to
service connection for an acquired psychiatric
disorder including PTSD, as well as a summary
of the evidence received since the issuance of
the last SSOC. An appropriate period of time
should be allowed for response.
5. Because the evidence shows that the veteran
filed a notice of disagreement as to the
noncompensable rating assigned by an April 2003
rating decision that also granted service
connection for posttraumatic headaches (as a
residual of a head injury incurred in service),
he has initiated review by the Board of the
RO's denial of a compensable rating for
posttraumatic headaches. See Manlincon v.
West, 12 Vet. App. 238 (1999). Therefore The
RO should issue the appellant and his
representative a statement of the case with
regard to the veteran's claim of entitlement to
a compensable rating for posttraumatic
headaches. They should be informed of the
requirement of filing a timely substantive
appeal subsequent to receipt of the statement
of the case, in order to perfect the claim and
thereby place it within the jurisdiction of the
Board. They should be afforded the appropriate
period of time in which to file a substantive
appeal after they have been issued the
statement of the case.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified. He has the right to submit additional
evidence and argument on the matters that the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
M. W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002). | 08-18-2003 | [
"Citation Nr: 0320703 Decision Date: 08/18/03 Archive Date: 08/25/03 DOCKET NO. 99-05 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for headaches. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESSES AT HEARINGS ON APPEAL Appellant, his spouse, and his mother ATTORNEY FOR THE BOARD C. S. Freret, Counsel REMAND The veteran had active military service from May 1971 to June 1973. A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED to the RO for the following actions: 1.",
"Please obtain the veteran's complete clinical records relating to treatment for psychiatric disability from the VA Medical Center (VAMC) in Jackson, Mississippi, since March 2000. 2. After completion of the above development, request that the psychiatrist who performed the March 2003 VA psychiatric examination and indicated that the veteran had some of the symptoms of PTSD and may warrant a diagnosis of subthreshold PTSD, again review the claims file, particularly in light of the veteran's treatment for PTSD at the Jackson VAMC and the May 2003 psychiatric statement from W. G. Clark, M.D. The VA psychiatrist should be requested to express an opinion as to whether the veteran meets the criteria under DSM-IV for a diagnosis of PTSD. The psychiatrist should specify what information was used to arrive at any conclusions, and should provide complete rationale for all opinions proffered. 3. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) and the implementing regulations are fully complied with and satisfied. 4.",
"Thereafter, the RO should re-adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, including PTSD. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue of entitlement to service connection for an acquired psychiatric disorder including PTSD, as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response.",
"5. Because the evidence shows that the veteran filed a notice of disagreement as to the noncompensable rating assigned by an April 2003 rating decision that also granted service connection for posttraumatic headaches (as a residual of a head injury incurred in service), he has initiated review by the Board of the RO's denial of a compensable rating for posttraumatic headaches. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore The RO should issue the appellant and his representative a statement of the case with regard to the veteran's claim of entitlement to a compensable rating for posttraumatic headaches. They should be informed of the requirement of filing a timely substantive appeal subsequent to receipt of the statement of the case, in order to perfect the claim and thereby place it within the jurisdiction of the Board.",
"They should be afforded the appropriate period of time in which to file a substantive appeal after they have been issued the statement of the case. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. He has the right to submit additional evidence and argument on the matters that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet.",
"App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.",
"_________________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To Thomas Jefferson from Hugh Nelson, 9 April 1822 From: Nelson, Hugh To: Jefferson, Thomas
Dear Sir Washington April 9th. 1822 By this mail I have forwarded a parcel of Cuttings of the Muscatel Vine, which Dr Wallace of Fauquier left with me to be forwarded to you. I hope they will come to hand safe and in due time to avail yourself of the polite attention of the DoctorWith sentiments of great Respect I remain yr obdt hbl sertHugh Nelson | 04-09-1822 | [
"Title: To Thomas Jefferson from Hugh Nelson, 9 April 1822 From: Nelson, Hugh To: Jefferson, Thomas Dear Sir Washington April 9th. 1822 By this mail I have forwarded a parcel of Cuttings of the Muscatel Vine, which Dr Wallace of Fauquier left with me to be forwarded to you. I hope they will come to hand safe and in due time to avail yourself of the polite attention of the DoctorWith sentiments of great Respect I remain yr obdt hbl sertHugh Nelson"
]
| https://founders.archives.gov/API/docdata/Jefferson/98-01-02-2759 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
AFFIRMED. | 07-29-2022 | [
"AFFIRMED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7612987/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
187 P.3d 1115 (2008) ANTONIO P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Anna P., Appellees. No. 1 CA-JV 07-0149. Court of Appeals of Arizona, Division 1, Department B. April 1, 2008. *1116 Janelle A. Mc Eachern, Chandler, Attorney for Appellant. Terry Goddard, Attorney General By Rebecca P. Thompson, Assistant Attorney General, Phoenix, Attorneys for Appellees. Bruce Peterson, Office of the Legal Advocate By Pamela J. Eaton, Deputy Legal Advocate, Phoenix, Guardian ad Litem.
OPINION IRVINE, Judge. ¶ 1 Antonio P. appeals from the juvenile court's order placing his daughter with her maternal aunt and uncle instead of with the child's paternal grandmother, Antonio's mother.[1] We conclude that the preferences for placement contained in Arizona Revised Statutes (A.R.S.) section 8-514(B) (2007) do not mandate placing a child with a person with an acceptable higher preference if the juvenile court finds it in the child's best interests to be placed with someone with a lower preference. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY ¶ 2 Anna, born in April 2002, is the biological child of Antonio P. and Amber C. Antonio impregnated Amber when she was fourteen or fifteen. Antonio was serving a sentence of lifetime probation for molesting Amber when he molested and impregnated his roommate's fourteen year old daughter. After Antonio was in jail and facing charges for molesting the second fourteen-year-old, the Arizona State Department of Economic Security (ADES) filed a dependency petition regarding Anna based on Antonio's inability to parent while incarcerated and his status as a child abuser.[2] ¶ 3 Subsequent to the dependency determination, the court granted ADES's request to move Anna from foster care to her maternal aunt and uncle. Because Antonio wanted Anna to be placed with his mother, he requested an evidentiary hearing. ¶ 4 At the evidentiary hearing, the Assessment of Attachment and Best Interest report by Dr. Glenn Moe, a licensed psychologist, was admitted into evidence. The report stated: It is clear from observing [Anna] as well as speaking with her that she has a very positive view of the relationship with her aunt and uncle. . . . Anna speaks highly of them and will spontaneously mention them in her conversation. It appears that her attachment with [her aunt and uncle] began during her early childhood when the aunt and uncle provided care for Anna on and off during the first three years of her life. Their relationship has been rekindled *1117 through phone conversations which began in June 2006 when she was placed in foster care and with visits which have occurred when the [aunt and uncle] have returned to Phoenix over the past six months. It was also clear during the assessment that [the aunt and uncle] feel closely bonded in the relationship with Anna. They clearly love the child as if she were their own. Furthermore, it appears from a review of the records combined with the interview of [the aunt and uncle] that they have the ability to provide an excellent placement for Anna. [The grandmother and her fiancé] also appear to have the capacity to provide an excellent home for Anna. Their relationship with the child has included only recently meeting Anna during their trip to Phoenix. However, it was clear that these grandparents have thought a lot about this child since she was taken in CPS care and they have opened their hearts and minds to the idea of rearing her. It appears that Anna has responded well to [the grandmother and her fiancé] and she was observed to relate well with them during the assessment. Therefore, there certainly appears to be the capacity for Anna to develop a positive and close attachment with her grandmother and step-grandfather over time. . . . . [I]t is this examiner's conclusion that both the aunt and uncle as well as the grandparents could provide a safe, nurturing, and quality home for Anna. In fact, Anna would benefit from having ongoing relationships with the maternal and paternal sides of the family. Therefore, whichever relative is not chosen to be the permanent placement for this child should be allowed visitation access so that Anna can grow up with the benefit of knowing both sides of her biological family. ¶ 5 Dr. Moe recommended the court place Anna with her aunt and uncle. Dr. Moe recommended placement with the aunt and uncle over the grandparents because Anna has a longer relationship with her aunt and uncle than with her grandparents, she already has an attachment with her aunt and uncle "that is undeniable," and her aunt and uncle are an age that is more traditional for child rearing. ¶ 6 At the conclusion of the hearing, the court found that ADES met its burden of proof regarding placement for Anna and that placement with her aunt and uncle was consistent with Anna's needs and was in Anna's best interest. Antonio timely appealed.
DISCUSSION ¶ 7 An order awarding custody of a dependent child as well as a subsequent order ratifying or changing a child's placement is final and appealable. Lindsey M. v. Ariz. Dep't of Econ. Sec., 212 Ariz. 43, 45-46, ¶ 9, 127 P.3d 59, 61-62 (App.2006). A parent, even one who is incarcerated and unable to have custody of the child, has standing to appeal as an aggrieved party. Id. at 46, ¶¶ 10-12, 127 P.3d at 62. We therefore have jurisdiction under A.R.S. § 8-235(A) (2007). ¶ 8 Juvenile courts have substantial discretion when placing dependent children because the court's primary consideration in dependency cases is the best interest of the child. A.R.S. § 8-845(A)(2) (2007) (providing that a court may award a dependent child to a grandparent or other "member of the child's extended family" when it is "in the child's best interests"); Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App.2005) (the juvenile court has "a great deal of discretion" because the child's best interests is always the primary concern in dependency cases). We review the placement orders of dependent children for an abuse of that discretion. Maricopa County Juv. Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994). ¶ 9 Antonio argues that the court abused its discretion when it placed Anna with her aunt and uncle. Antonio asserts that because both sets of relatives were approved, the court's initial step for deciding where to place Anna should have been to conclude the first choice was with her grandmother and the second choice her aunt because A.R.S. § 8-514(B) requires the court place the child with a grandparent over another *1118 relative. Only after establishing that Anna's grandmother was first choice, he argues, should the court take into account Anna's best interests. According to Antonio, this analysis would have led the court to place Anna with her grandmother because both homes were approved, the Best Interest report recommended that the grandmother have visitation with Anna, and because Anna "barely knew . . . her . . . [a]unt or her . . . [g]randmother." ¶ 10 Section 8-514(B)(1)-(3) states that "[t]he department shall place a child in the least restrictive type of placement available, consistent with the needs of the child. The order for placement preference is as follows:" (1) with a parent, (2) a grandparent, (3) another member of the child's extended family. ¶ 11 A court will interpret a statute so it can discern and apply the legislature's intent when it enacted the statute under review. US West Commc'n, Inc. v. City of Tucson, 198 Ariz. 515, 520, ¶ 11, 11 P.3d 1054, 1059 (App.2000). This process entails looking at the words of the statute first. Id. If the words do not reveal the legislature's intent, then the court looks to the statute as a whole to determine the meaningful effect of each provision. Id. Only when a term is ambiguous, however, will the court use secondary principles of statutory construction to discern the legislature's intent. Mago v. Mercedes-Benz, U.S.A., Inc., 213 Ariz. 404, 408, ¶¶ 15, 17, 142 P.3d 712, 716 (App.2006) (holding that if Congress wanted to limit the definition of "buyer" in the Warranty Act to include only consumers who have a cause for relief under the statute, it would have used the word "consumer" instead of "buyer"). ¶ 12 Here, we need not look beyond the language of § 8-514(B)(1)-(3). The statute clearly states that the order of placement is a preference, not a mandate. Preference means a "choice or estimation above another." Webster's New International Dictionary 1787 (3rd ed. 2002).[3] Preference does not mean that a certain choice or estimation is mandated. Section 8-514(B) provides the juvenile court with the legislature's preference for where or with whom a child is placed but it does not mandate that the order of preference be strictly followed when a placement is not consistent with the needs of the child. The statute neither mandates placing a grandparent first in line before determining a child's best interests nor does it mandate placing a child with a grandparent over an aunt or uncle. Moreover, the court is not obligated to find that a placement with a grandparent is not in the child's best interest before placing the child with an aunt, which is how Antonio seems to interpret the statute. The statute requires only that the court include placement preference in its analysis of what is in the child's best interest. ¶ 13 Consequently, what Antonio proposes is outside the language of the statute. "It is a universal rule that courts will not enlarge, stretch, expand, or extend a statute to matters not falling within its express provisions." Morrison v. Anway, 87 Ariz. 206, 208-09, 349 P.2d 774, 775-76 (1960) (holding that the legislature did not intend a statute requiring well operators to report the legal descriptions of the land upon which a well was located to limit the use of water drawn from the well to only the land covered in the legal description). A court will not read meaning into a statute that is not within the legislature's "manifest intention . . . as gathered from the statute itself." Id. at 209, 349 P.2d at 776. If we were to do so, our actions would alter the statute instead of interpreting it. Id. We cannot, therefore, give this statute the meaning Antonio proposes. ¶ 14 Antonio also asserts that the juvenile court should have waited for the results of the grandmother's home report before placing Anna with her aunt and uncle. Without deciding the issue, we note the record reflects that the grandmother's home report *1119 was completed in October, 2006, prior to the child being placed with her aunt and uncle. ¶ 15 The juvenile court was fortunate to have two related families willing to care for Anna. It was within the court's discretion, however, to place Anna with her aunt and uncle. The court had evidence supporting its conclusion that placement with the aunt and uncle was more consistent with Anna's needs and best interests.
CONCLUSION ¶ 16 Because A.R.S. § 8-514 does not require Anna to be placed with her grandmother over her aunt and uncle, it was within the juvenile court's discretion to place Anna with her aunt and uncle consistent with Anna's needs and in her best interests. We affirm. CONCURRING: DANIEL A. BARKER, Presiding Judge and DIANE M. JOHNSEN, Judge. NOTES [1] Both sets of relatives are residents of Tennessee. [2] Amber, also incarcerated and a party to the ADES's dependency action involving Anna, is not a party to this appeal. [3] When the legislature does not define a term, we give the term its plain meaning. A.R.S. § 1-213 (2002) ("Words and phrases shall be construed according to the common and approved use of the language."); State v. Taylor, 216 Ariz. 327, 333, ¶ 20, 166 P.3d 118, 124 (App.2007) (stating that when the legislature does not clearly express an intent to give a term special meaning, the court may use dictionary definitions for such common usage meaning). | 10-30-2013 | [
"187 P.3d 1115 (2008) ANTONIO P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Anna P., Appellees. No. 1 CA-JV 07-0149. Court of Appeals of Arizona, Division 1, Department B. April 1, 2008. *1116 Janelle A. Mc Eachern, Chandler, Attorney for Appellant. Terry Goddard, Attorney General By Rebecca P. Thompson, Assistant Attorney General, Phoenix, Attorneys for Appellees. Bruce Peterson, Office of the Legal Advocate By Pamela J. Eaton, Deputy Legal Advocate, Phoenix, Guardian ad Litem. OPINION IRVINE, Judge.",
"¶ 1 Antonio P. appeals from the juvenile court's order placing his daughter with her maternal aunt and uncle instead of with the child's paternal grandmother, Antonio's mother. [1] We conclude that the preferences for placement contained in Arizona Revised Statutes (A.R.S.) section 8-514(B) (2007) do not mandate placing a child with a person with an acceptable higher preference if the juvenile court finds it in the child's best interests to be placed with someone with a lower preference. Therefore, we affirm. FACTS AND PROCEDURAL HISTORY ¶ 2 Anna, born in April 2002, is the biological child of Antonio P. and Amber C. Antonio impregnated Amber when she was fourteen or fifteen.",
"Antonio was serving a sentence of lifetime probation for molesting Amber when he molested and impregnated his roommate's fourteen year old daughter. After Antonio was in jail and facing charges for molesting the second fourteen-year-old, the Arizona State Department of Economic Security (ADES) filed a dependency petition regarding Anna based on Antonio's inability to parent while incarcerated and his status as a child abuser. [2] ¶ 3 Subsequent to the dependency determination, the court granted ADES's request to move Anna from foster care to her maternal aunt and uncle. Because Antonio wanted Anna to be placed with his mother, he requested an evidentiary hearing. ¶ 4 At the evidentiary hearing, the Assessment of Attachment and Best Interest report by Dr. Glenn Moe, a licensed psychologist, was admitted into evidence. The report stated: It is clear from observing [Anna] as well as speaking with her that she has a very positive view of the relationship with her aunt and uncle.",
". . . Anna speaks highly of them and will spontaneously mention them in her conversation. It appears that her attachment with [her aunt and uncle] began during her early childhood when the aunt and uncle provided care for Anna on and off during the first three years of her life. Their relationship has been rekindled *1117 through phone conversations which began in June 2006 when she was placed in foster care and with visits which have occurred when the [aunt and uncle] have returned to Phoenix over the past six months. It was also clear during the assessment that [the aunt and uncle] feel closely bonded in the relationship with Anna. They clearly love the child as if she were their own. Furthermore, it appears from a review of the records combined with the interview of [the aunt and uncle] that they have the ability to provide an excellent placement for Anna.",
"[The grandmother and her fiancé] also appear to have the capacity to provide an excellent home for Anna. Their relationship with the child has included only recently meeting Anna during their trip to Phoenix. However, it was clear that these grandparents have thought a lot about this child since she was taken in CPS care and they have opened their hearts and minds to the idea of rearing her. It appears that Anna has responded well to [the grandmother and her fiancé] and she was observed to relate well with them during the assessment. Therefore, there certainly appears to be the capacity for Anna to develop a positive and close attachment with her grandmother and step-grandfather over time. .",
". . . [I]t is this examiner's conclusion that both the aunt and uncle as well as the grandparents could provide a safe, nurturing, and quality home for Anna. In fact, Anna would benefit from having ongoing relationships with the maternal and paternal sides of the family. Therefore, whichever relative is not chosen to be the permanent placement for this child should be allowed visitation access so that Anna can grow up with the benefit of knowing both sides of her biological family. ¶ 5 Dr. Moe recommended the court place Anna with her aunt and uncle.",
"Dr. Moe recommended placement with the aunt and uncle over the grandparents because Anna has a longer relationship with her aunt and uncle than with her grandparents, she already has an attachment with her aunt and uncle \"that is undeniable,\" and her aunt and uncle are an age that is more traditional for child rearing. ¶ 6 At the conclusion of the hearing, the court found that ADES met its burden of proof regarding placement for Anna and that placement with her aunt and uncle was consistent with Anna's needs and was in Anna's best interest. Antonio timely appealed. DISCUSSION ¶ 7 An order awarding custody of a dependent child as well as a subsequent order ratifying or changing a child's placement is final and appealable. Lindsey M. v. Ariz. Dep't of Econ. Sec., 212 Ariz. 43, 45-46, ¶ 9, 127 P.3d 59, 61-62 (App.2006). A parent, even one who is incarcerated and unable to have custody of the child, has standing to appeal as an aggrieved party. Id. at 46, ¶¶ 10-12, 127 P.3d at 62.",
"We therefore have jurisdiction under A.R.S. § 8-235(A) (2007). ¶ 8 Juvenile courts have substantial discretion when placing dependent children because the court's primary consideration in dependency cases is the best interest of the child. A.R.S. § 8-845(A)(2) (2007) (providing that a court may award a dependent child to a grandparent or other \"member of the child's extended family\" when it is \"in the child's best interests\"); Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034, 1038 (App.2005) (the juvenile court has \"a great deal of discretion\" because the child's best interests is always the primary concern in dependency cases). We review the placement orders of dependent children for an abuse of that discretion.",
"Maricopa County Juv. Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994). ¶ 9 Antonio argues that the court abused its discretion when it placed Anna with her aunt and uncle. Antonio asserts that because both sets of relatives were approved, the court's initial step for deciding where to place Anna should have been to conclude the first choice was with her grandmother and the second choice her aunt because A.R.S. § 8-514(B) requires the court place the child with a grandparent over another *1118 relative.",
"Only after establishing that Anna's grandmother was first choice, he argues, should the court take into account Anna's best interests. According to Antonio, this analysis would have led the court to place Anna with her grandmother because both homes were approved, the Best Interest report recommended that the grandmother have visitation with Anna, and because Anna \"barely knew . . . her . . . [a]unt or her . . .",
"[g]randmother.\" ¶ 10 Section 8-514(B)(1)-(3) states that \"[t]he department shall place a child in the least restrictive type of placement available, consistent with the needs of the child. The order for placement preference is as follows:\" (1) with a parent, (2) a grandparent, (3) another member of the child's extended family. ¶ 11 A court will interpret a statute so it can discern and apply the legislature's intent when it enacted the statute under review. US West Commc'n, Inc. v. City of Tucson, 198 Ariz. 515, 520, ¶ 11, 11 P.3d 1054, 1059 (App.2000). This process entails looking at the words of the statute first. Id.",
"If the words do not reveal the legislature's intent, then the court looks to the statute as a whole to determine the meaningful effect of each provision. Id. Only when a term is ambiguous, however, will the court use secondary principles of statutory construction to discern the legislature's intent. Mago v. Mercedes-Benz, U.S.A., Inc., 213 Ariz. 404, 408, ¶¶ 15, 17, 142 P.3d 712, 716 (App.2006) (holding that if Congress wanted to limit the definition of \"buyer\" in the Warranty Act to include only consumers who have a cause for relief under the statute, it would have used the word \"consumer\" instead of \"buyer\"). ¶ 12 Here, we need not look beyond the language of § 8-514(B)(1)-(3). The statute clearly states that the order of placement is a preference, not a mandate.",
"Preference means a \"choice or estimation above another.\" Webster's New International Dictionary 1787 (3rd ed. 2002). [3] Preference does not mean that a certain choice or estimation is mandated. Section 8-514(B) provides the juvenile court with the legislature's preference for where or with whom a child is placed but it does not mandate that the order of preference be strictly followed when a placement is not consistent with the needs of the child. The statute neither mandates placing a grandparent first in line before determining a child's best interests nor does it mandate placing a child with a grandparent over an aunt or uncle. Moreover, the court is not obligated to find that a placement with a grandparent is not in the child's best interest before placing the child with an aunt, which is how Antonio seems to interpret the statute. The statute requires only that the court include placement preference in its analysis of what is in the child's best interest.",
"¶ 13 Consequently, what Antonio proposes is outside the language of the statute. \"It is a universal rule that courts will not enlarge, stretch, expand, or extend a statute to matters not falling within its express provisions.\" Morrison v. Anway, 87 Ariz. 206, 208-09, 349 P.2d 774, 775-76 (1960) (holding that the legislature did not intend a statute requiring well operators to report the legal descriptions of the land upon which a well was located to limit the use of water drawn from the well to only the land covered in the legal description). A court will not read meaning into a statute that is not within the legislature's \"manifest intention .",
". . as gathered from the statute itself.\" Id. at 209, 349 P.2d at 776. If we were to do so, our actions would alter the statute instead of interpreting it. Id. We cannot, therefore, give this statute the meaning Antonio proposes. ¶ 14 Antonio also asserts that the juvenile court should have waited for the results of the grandmother's home report before placing Anna with her aunt and uncle. Without deciding the issue, we note the record reflects that the grandmother's home report *1119 was completed in October, 2006, prior to the child being placed with her aunt and uncle. ¶ 15 The juvenile court was fortunate to have two related families willing to care for Anna.",
"It was within the court's discretion, however, to place Anna with her aunt and uncle. The court had evidence supporting its conclusion that placement with the aunt and uncle was more consistent with Anna's needs and best interests. CONCLUSION ¶ 16 Because A.R.S. § 8-514 does not require Anna to be placed with her grandmother over her aunt and uncle, it was within the juvenile court's discretion to place Anna with her aunt and uncle consistent with Anna's needs and in her best interests. We affirm. CONCURRING: DANIEL A. BARKER, Presiding Judge and DIANE M. JOHNSEN, Judge. NOTES [1] Both sets of relatives are residents of Tennessee. [2] Amber, also incarcerated and a party to the ADES's dependency action involving Anna, is not a party to this appeal. [3] When the legislature does not define a term, we give the term its plain meaning. A.R.S. § 1-213 (2002) (\"Words and phrases shall be construed according to the common and approved use of the language. \"); State v. Taylor, 216 Ariz. 327, 333, ¶ 20, 166 P.3d 118, 124 (App.2007) (stating that when the legislature does not clearly express an intent to give a term special meaning, the court may use dictionary definitions for such common usage meaning)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2584807/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In the matter of the estate of Barney L. Doherty, deceased. Percy E. Heath filed a claim on April 17, 1946, against decedent's estate, which was denied on September 12, 1946. On October 18, 1946, motion for new trial or review of judgment was asked and on the same day was denied. On April 10, 1947, a motion was made by claimant's attorney for an extension of time Within which an appeal could be taken. This motion was denied by an order entered April 14, 1947, and the appeal here is from this order. The question upon this appeal is whether claimant made a sufficient showing to bring him as a matter of law within the provisions of sec. 324.05, Stats., which reads as follows: "If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of." Unless entitled to relief under the foregoing section the matter is governed by sec. 324.04 (1), Stats., limiting appeals to this court from orders of the county court to sixty days from the date of the entry thereof. Claimant asserts the facts to be as follows: Upon denial of his claim, claimant immediately instructed his attorney to appeal to this court or to apply for a rehearing but because of the illness of the attorney and his engagements in other court matters the latter omitted to take the appeal within sixty days or to apply for a rehearing. In addition to affidavits by claimant, his attorney and the attorney's wife, there were filed certificates by a doctor to the effect that counsel's wife, who apparently assisted him as secretary, was incapacitated from doing any work during the sixty-day period, that counsel had been ill and receiving medical care since the date of the order in September, 1946, and since November of the same year counsel had been able to take care of only a small part of his practice. In its decision the trial court states that it knows of *Page 423 its own knowledge that during the sixty days following the denial of the claim counsel was in court frequently on legal matters and that during all this time he had a full-time attorney associated with him who was perfectly capable of taking care of this case. The trial court considered that no excuse had been presented for failing to take an appeal or to move for a rehearing within sixty days. We are of the view that the determination of the trial court cannot be disturbed. Relief under sec. 324.05, Stats., rests in the discretion of the trial court. Little needs to be added to the trial court's own statement in order to demonstrate that there was no abuse of discretion. The medical certificates do not indicate total incapacity of counsel. The trial court certifies to the fact of counsel's frequent attendance in county court on various legal matters, and it is a verity that another lawyer was associated with counsel in his office. The process of taking an appeal or petitioning for a rehearing is neither complicated, difficult, nor time-consuming. It is evident that the trial court had reasonable grounds to believe that no adequate excuse was shown for failing to take timely steps in one or the other of these directions. It follows that there was no abuse of discretion and that the order refusing to grant a retrial or to allow an appeal must be affirmed. By the Court. — Order affirmed. *Page 424 | 07-06-2016 | [
"In the matter of the estate of Barney L. Doherty, deceased. Percy E. Heath filed a claim on April 17, 1946, against decedent's estate, which was denied on September 12, 1946. On October 18, 1946, motion for new trial or review of judgment was asked and on the same day was denied. On April 10, 1947, a motion was made by claimant's attorney for an extension of time Within which an appeal could be taken. This motion was denied by an order entered April 14, 1947, and the appeal here is from this order.",
"The question upon this appeal is whether claimant made a sufficient showing to bring him as a matter of law within the provisions of sec. 324.05, Stats., which reads as follows: \"If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of.\" Unless entitled to relief under the foregoing section the matter is governed by sec.",
"324.04 (1), Stats., limiting appeals to this court from orders of the county court to sixty days from the date of the entry thereof. Claimant asserts the facts to be as follows: Upon denial of his claim, claimant immediately instructed his attorney to appeal to this court or to apply for a rehearing but because of the illness of the attorney and his engagements in other court matters the latter omitted to take the appeal within sixty days or to apply for a rehearing. In addition to affidavits by claimant, his attorney and the attorney's wife, there were filed certificates by a doctor to the effect that counsel's wife, who apparently assisted him as secretary, was incapacitated from doing any work during the sixty-day period, that counsel had been ill and receiving medical care since the date of the order in September, 1946, and since November of the same year counsel had been able to take care of only a small part of his practice.",
"In its decision the trial court states that it knows of *Page 423 its own knowledge that during the sixty days following the denial of the claim counsel was in court frequently on legal matters and that during all this time he had a full-time attorney associated with him who was perfectly capable of taking care of this case. The trial court considered that no excuse had been presented for failing to take an appeal or to move for a rehearing within sixty days. We are of the view that the determination of the trial court cannot be disturbed.",
"Relief under sec. 324.05, Stats., rests in the discretion of the trial court. Little needs to be added to the trial court's own statement in order to demonstrate that there was no abuse of discretion. The medical certificates do not indicate total incapacity of counsel. The trial court certifies to the fact of counsel's frequent attendance in county court on various legal matters, and it is a verity that another lawyer was associated with counsel in his office. The process of taking an appeal or petitioning for a rehearing is neither complicated, difficult, nor time-consuming.",
"It is evident that the trial court had reasonable grounds to believe that no adequate excuse was shown for failing to take timely steps in one or the other of these directions. It follows that there was no abuse of discretion and that the order refusing to grant a retrial or to allow an appeal must be affirmed. By the Court. — Order affirmed. *Page 424"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4009561/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
39 Cal. App. 4th 1116 (1995) 46 Cal. Rptr. 2d 161 WALTER BALLOON et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; TIFFANY RODWAY, Real Party in Interest. Docket No. C021686. Court of Appeals of California, Third District. October 30, 1995. *1118 COUNSEL Porter, Scott, Weiberg & Delehant, Ned P. Telford, Darren W. Epps, Bailey & Brown and Michael D. Dazey for Petitioners. No appearance for Respondent. John M. Riestenberg and Richard K. Hosey for Real Party in Interest. *1119 OPINION SPARKS, Acting P.J. The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff's minority by application of Code of Civil Procedure section 352, or on equitable grounds. We hold it was not. Petitioners, Walter Balloon, WVB Enterprises, Inc., and Foodmaker, Inc., collectively doing business as Jack In The Box, and Hargit Singh (hereafter defendants), are the former employers and supervisors of Tiffany Rodway, real party in interest (hereafter plaintiff). Plaintiff's complaint in the underlying superior court action seeks damages for alleged sexual harassment and discrimination in her employment, in violation of the FEHA. Defendants moved for summary judgment on the ground that plaintiff had not exhausted her administrative remedies. They contended that she failed to comply with the requirement of Government Code section 12960 that she file a complaint with the Department of Fair Employment and Housing (DFEH) within one year after the last alleged unlawful act.[1] The superior court denied defendants' motion, and they now seek review of that order in this court by way of a petition for writ of mandate, as authorized by Code of Civil Procedure section 437c, subdivision (l). We conclude that defendants are entitled to summary judgment on plaintiff's FEHA claim, and shall grant the requested relief. Plaintiff was employed at defendants' Jack In The Box restaurant from February to September 1990, when, according to her DFEH complaint, the prohibited acts occurred. During the time she worked for defendants, plaintiff was 15 or 16 years old. Plaintiff's 18th birthday fell on August 17, 1992. She filed her administrative complaint on August 13, 1993, within one year after reaching the age of majority, but nearly three years after her employment had terminated, which was the last possible date on which the alleged *1120 sexual discrimination and harassment could have taken place. The DFEH issued a "right to sue letter" (the record does not disclose the date of that letter), after which plaintiff had one year to commence a civil action. (Gov. Code § 12965, subd. (b).) She did so, filing her superior court complaint on March 9, 1994. A first amended complaint was filed on January 23, 1995. (1) The timely filing of an administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA. (Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 349 [21 Cal. Rptr. 2d 292]; Denney v. Universal City Studios, Inc. (1992) 10 Cal. App. 4th 1226, 1232 [13 Cal. Rptr. 2d 170]; Valdez v. City of Los Angeles (1991) 231 Cal. App. 3d 1043, 1052 [282 Cal. Rptr. 726].) (2) Defendants, as we have noted, moved for summary judgment on the ground that plaintiff's delay of approximately three years in filing a complaint with the DFEH bars her civil complaint. In response, plaintiff relied primarily on Code of Civil Procedure former section 352 (section 352), which, at the time of the filing of her complaint, provided in pertinent part that: "(a) If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time the cause of action accrued, either: [¶] 1. Under the age of majority; or, [¶] 2. Insane; or, [¶] 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; the time of such disability is not a part of the time limited for the commencement of the action." Plaintiff argues that since she filed the administrative complaint required by Government Code section 12960 within one year after she turned eighteen, the tolling provisions of section 352 render it timely. We disagree. It appears that there are no published cases which address the applicability of section 352 to the time requirements of Government Code section 12960. However, we find guidance in several decisions which considered the effect of a plaintiff's minority on the obligation to file other types of claims within a specified time as a prerequisite to pursuing a civil action. These authorities consistently hold that the provisions of section 352 do not operate to toll these analogous time periods. The seminal case in this area is Artukovich v. Astendorf (1942) 21 Cal. 2d 329 [131 P.2d 831], where the California Supreme Court held that in the absence of a statutory exemption the claim filing requirements of the government Tort Claims Act are applicable to minors, and are not subject to the tolling provisions of section 352. (21 Cal.2d at pp. 333-334.) Similarly, in Billups v. Tiernan (1970) 11 Cal. App. 3d 372 [90 Cal. Rptr. 246], the appellate court held that section 352 did not extend the period allowed by the Probate Code for the filing of a minor's claim against a decedent's estate. And, in Republic Indem. Co. v. *1121 Barn Furniture Mart, Inc. (1967) 248 Cal. App. 2d 517 [56 Cal. Rptr. 609], the court relied on Artukovich in holding that a complaint against an insurance carrier for uninsured motorist benefits was precluded where the insured, a minor, had failed to demand arbitration or pursue other remedies within one year after the claim arose, as required by Insurance Code section 11580.2. In each of these cases, the rationale has been that where the Legislature has created a cause of action, and has established a claims procedure as a prerequisite to enforcement of that statutory right, a plaintiff's minority does not excuse the timely filing of such a claim unless the Legislature has also specifically provided for such an extension. The underlying principle was explained in Moyer v. Hook (1970) 10 Cal. App. 3d 491 [89 Cal. Rptr. 234], another Tort Claims Act case, this way: "The Code section relied upon ... (Code of Civ. Proc., § 352) tolls, during certain disabilities, only the running of the period for filing `an action.' It does not apply to the filing of a claim." (Id. at p. 493.) That plaintiff's argument is untenable is readily demonstrated by resort to the language of section 352 itself. (3) First, by its own terms, the statute's applicability is limited to extensions of the time for commencing an action mentioned in chapter 3 of part 2, title 2 of the Code of Civil Procedure. The requirement of Government Code section 12960 that an administrative complaint be filed with the DFEH within one year is obviously not among the limitations periods found within chapter 3. Instead, it is a substantive precondition to the bringing of a civil action in the superior court. Furthermore, a cause of action for violation of the FEHA does not even accrue until after the administrative remedy is exhausted. (See Williams v. Pacific Mutual (1986) 186 Cal. App. 3d 941, 951 [231 Cal. Rptr. 234].) Since the language of section 352 provides that its tolling provisions are triggered only by disabilities extant "at the time the cause of action accrued," it can have no effect on claim filing requirements that are a condition precedent to accrual. Williams v. Los Angeles (1968) 68 Cal. 2d 599 [68 Cal. Rptr. 297, 440 P.2d 497], and Todd v. County of Los Angeles (1977) 74 Cal. App. 3d 661 [141 Cal. Rptr. 622], cited by plaintiff in her opposition and by the superior court in its order denying summary judgment, do not support plaintiff's tolling theory. In both those cases the court was concerned with the time for filing a civil complaint after the plaintiff had initially complied with the claim filing requirements of the government Tort Claims Act. Nothing in either decision can be viewed as extending the benefits of section 352 to the context of the present case. (4) As an alternative to her reliance on section 352, plaintiff argues that her failure to file a timely FEHA complaint may be excused under the *1122 doctrine of "equitable tolling." This theory has been developed in a series of cases where a plaintiff with several possible remedies pursued one with a resultant delay in commencement of another. In these circumstances, California courts have held that the statute of limitations applicable to the later filed action is tolled during the pendency of the initial administrative or judicial proceeding. (See Jones v. Tracy School Dist. (1980) 27 Cal. 3d 99, 107-108 [165 Cal. Rptr. 100, 611 P.2d 441]; Addison v. State of California (1978) 21 Cal. 3d 313 [146 Cal. Rptr. 224, 578 P.2d 941]; Elkins v. Derby (1974) 12 Cal. 3d 410 [115 Cal. Rptr. 641, 525 P.2d 81, 71 A.L.R. 3d 839].) We fail to discern how those cases are relevant to the present one. Simply put, plaintiff has not pursued any other remedy. Rather, from the outset, she has asserted a single claim, i.e., that defendants have violated the FEHA. While plaintiff asserts that she could have filed a complaint on some other theory within one year after her eighteenth birthday, the fact is that she did not. Finally, plaintiff advises us that subsequent to defendants seeking relief in this court, she filed in superior court a motion to amend her complaint to state additional causes of action not premised on the FEHA. She asks that if we are inclined to grant the petition, we first allow her to complete the proposed amendment. We decline the invitation. (5) The trial court is the proper forum in which to address in the first instance matters related to the pleadings, and whether an amendment should be allowed prior to entry of judgment we leave to its discretion. The petition for writ of mandate is granted. We have complied with the procedures required by Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171 [203 Cal. Rptr. 626, 681 P.2d 893], and may therefore issue a peremptory writ in the first instance. The superior court is directed to vacate its order of July 11, 1995, denying defendants' motion for summary judgment, and to enter a new order granting that motion. Nicholson, J., and Raye, J., concurred. NOTES [1] Government Code section 12960 provides in relevant part: "The provisions of this article govern the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6. [¶] Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of and shall set forth the particulars thereof and contain such other information as may be required by the department.... [¶] No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred; except that this period may be extended for not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence." | 10-30-2013 | [
"39 Cal. App. 4th 1116 (1995) 46 Cal. Rptr. 2d 161 WALTER BALLOON et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; TIFFANY RODWAY, Real Party in Interest. Docket No. C021686. Court of Appeals of California, Third District. October 30, 1995. *1118 COUNSEL Porter, Scott, Weiberg & Delehant, Ned P. Telford, Darren W. Epps, Bailey & Brown and Michael D. Dazey for Petitioners. No appearance for Respondent. John M. Riestenberg and Richard K. Hosey for Real Party in Interest.",
"*1119 OPINION SPARKS, Acting P.J. The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff's minority by application of Code of Civil Procedure section 352, or on equitable grounds. We hold it was not. Petitioners, Walter Balloon, WVB Enterprises, Inc., and Foodmaker, Inc., collectively doing business as Jack In The Box, and Hargit Singh (hereafter defendants), are the former employers and supervisors of Tiffany Rodway, real party in interest (hereafter plaintiff). Plaintiff's complaint in the underlying superior court action seeks damages for alleged sexual harassment and discrimination in her employment, in violation of the FEHA. Defendants moved for summary judgment on the ground that plaintiff had not exhausted her administrative remedies. They contended that she failed to comply with the requirement of Government Code section 12960 that she file a complaint with the Department of Fair Employment and Housing (DFEH) within one year after the last alleged unlawful act.",
"[1] The superior court denied defendants' motion, and they now seek review of that order in this court by way of a petition for writ of mandate, as authorized by Code of Civil Procedure section 437c, subdivision (l). We conclude that defendants are entitled to summary judgment on plaintiff's FEHA claim, and shall grant the requested relief. Plaintiff was employed at defendants' Jack In The Box restaurant from February to September 1990, when, according to her DFEH complaint, the prohibited acts occurred. During the time she worked for defendants, plaintiff was 15 or 16 years old. Plaintiff's 18th birthday fell on August 17, 1992. She filed her administrative complaint on August 13, 1993, within one year after reaching the age of majority, but nearly three years after her employment had terminated, which was the last possible date on which the alleged *1120 sexual discrimination and harassment could have taken place. The DFEH issued a \"right to sue letter\" (the record does not disclose the date of that letter), after which plaintiff had one year to commence a civil action. (Gov. Code § 12965, subd. (b).) She did so, filing her superior court complaint on March 9, 1994.",
"A first amended complaint was filed on January 23, 1995. (1) The timely filing of an administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA. (Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 349 [21 Cal. Rptr. 2d 292]; Denney v. Universal City Studios, Inc. (1992) 10 Cal. App. 4th 1226, 1232 [13 Cal. Rptr. 2d 170]; Valdez v. City of Los Angeles (1991) 231 Cal. App. 3d 1043, 1052 [282 Cal. Rptr. 726].)",
"(2) Defendants, as we have noted, moved for summary judgment on the ground that plaintiff's delay of approximately three years in filing a complaint with the DFEH bars her civil complaint. In response, plaintiff relied primarily on Code of Civil Procedure former section 352 (section 352), which, at the time of the filing of her complaint, provided in pertinent part that: \"(a) If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time the cause of action accrued, either: [¶] 1. Under the age of majority; or, [¶] 2. Insane; or, [¶] 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; the time of such disability is not a part of the time limited for the commencement of the action.\" Plaintiff argues that since she filed the administrative complaint required by Government Code section 12960 within one year after she turned eighteen, the tolling provisions of section 352 render it timely. We disagree.",
"It appears that there are no published cases which address the applicability of section 352 to the time requirements of Government Code section 12960. However, we find guidance in several decisions which considered the effect of a plaintiff's minority on the obligation to file other types of claims within a specified time as a prerequisite to pursuing a civil action. These authorities consistently hold that the provisions of section 352 do not operate to toll these analogous time periods.",
"The seminal case in this area is Artukovich v. Astendorf (1942) 21 Cal. 2d 329 [131 P.2d 831], where the California Supreme Court held that in the absence of a statutory exemption the claim filing requirements of the government Tort Claims Act are applicable to minors, and are not subject to the tolling provisions of section 352. (21 Cal.2d at pp. 333-334.) Similarly, in Billups v. Tiernan (1970) 11 Cal. App. 3d 372 [90 Cal. Rptr. 246], the appellate court held that section 352 did not extend the period allowed by the Probate Code for the filing of a minor's claim against a decedent's estate. And, in Republic Indem. Co. v. *1121 Barn Furniture Mart, Inc. (1967) 248 Cal.",
"App. 2d 517 [56 Cal. Rptr. 609], the court relied on Artukovich in holding that a complaint against an insurance carrier for uninsured motorist benefits was precluded where the insured, a minor, had failed to demand arbitration or pursue other remedies within one year after the claim arose, as required by Insurance Code section 11580.2. In each of these cases, the rationale has been that where the Legislature has created a cause of action, and has established a claims procedure as a prerequisite to enforcement of that statutory right, a plaintiff's minority does not excuse the timely filing of such a claim unless the Legislature has also specifically provided for such an extension. The underlying principle was explained in Moyer v. Hook (1970) 10 Cal.",
"App. 3d 491 [89 Cal. Rptr. 234], another Tort Claims Act case, this way: \"The Code section relied upon ... (Code of Civ. Proc., § 352) tolls, during certain disabilities, only the running of the period for filing `an action.' It does not apply to the filing of a claim.\" (Id. at p. 493.) That plaintiff's argument is untenable is readily demonstrated by resort to the language of section 352 itself. (3) First, by its own terms, the statute's applicability is limited to extensions of the time for commencing an action mentioned in chapter 3 of part 2, title 2 of the Code of Civil Procedure. The requirement of Government Code section 12960 that an administrative complaint be filed with the DFEH within one year is obviously not among the limitations periods found within chapter 3. Instead, it is a substantive precondition to the bringing of a civil action in the superior court. Furthermore, a cause of action for violation of the FEHA does not even accrue until after the administrative remedy is exhausted. (See Williams v. Pacific Mutual (1986) 186 Cal.",
"App. 3d 941, 951 [231 Cal. Rptr. 234].) Since the language of section 352 provides that its tolling provisions are triggered only by disabilities extant \"at the time the cause of action accrued,\" it can have no effect on claim filing requirements that are a condition precedent to accrual. Williams v. Los Angeles (1968) 68 Cal. 2d 599 [68 Cal. Rptr. 297, 440 P.2d 497], and Todd v. County of Los Angeles (1977) 74 Cal. App. 3d 661 [141 Cal. Rptr. 622], cited by plaintiff in her opposition and by the superior court in its order denying summary judgment, do not support plaintiff's tolling theory. In both those cases the court was concerned with the time for filing a civil complaint after the plaintiff had initially complied with the claim filing requirements of the government Tort Claims Act. Nothing in either decision can be viewed as extending the benefits of section 352 to the context of the present case. (4) As an alternative to her reliance on section 352, plaintiff argues that her failure to file a timely FEHA complaint may be excused under the *1122 doctrine of \"equitable tolling.\"",
"This theory has been developed in a series of cases where a plaintiff with several possible remedies pursued one with a resultant delay in commencement of another. In these circumstances, California courts have held that the statute of limitations applicable to the later filed action is tolled during the pendency of the initial administrative or judicial proceeding. (See Jones v. Tracy School Dist. (1980) 27 Cal. 3d 99, 107-108 [165 Cal. Rptr. 100, 611 P.2d 441]; Addison v. State of California (1978) 21 Cal. 3d 313 [146 Cal. Rptr. 224, 578 P.2d 941]; Elkins v. Derby (1974) 12 Cal. 3d 410 [115 Cal. Rptr. 641, 525 P.2d 81, 71 A.L.R. 3d 839].) We fail to discern how those cases are relevant to the present one. Simply put, plaintiff has not pursued any other remedy. Rather, from the outset, she has asserted a single claim, i.e., that defendants have violated the FEHA. While plaintiff asserts that she could have filed a complaint on some other theory within one year after her eighteenth birthday, the fact is that she did not.",
"Finally, plaintiff advises us that subsequent to defendants seeking relief in this court, she filed in superior court a motion to amend her complaint to state additional causes of action not premised on the FEHA. She asks that if we are inclined to grant the petition, we first allow her to complete the proposed amendment. We decline the invitation. (5) The trial court is the proper forum in which to address in the first instance matters related to the pleadings, and whether an amendment should be allowed prior to entry of judgment we leave to its discretion. The petition for writ of mandate is granted. We have complied with the procedures required by Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.",
"3d 171 [203 Cal. Rptr. 626, 681 P.2d 893], and may therefore issue a peremptory writ in the first instance. The superior court is directed to vacate its order of July 11, 1995, denying defendants' motion for summary judgment, and to enter a new order granting that motion. Nicholson, J., and Raye, J., concurred. NOTES [1] Government Code section 12960 provides in relevant part: \"The provisions of this article govern the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6. [¶] Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of and shall set forth the particulars thereof and contain such other information as may be required by the department.... [¶] No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred; except that this period may be extended for not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.\""
]
| https://www.courtlistener.com/api/rest/v3/opinions/2283279/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Sutherland, J. The relator, Ames, is the proprietor of a hotel located in the town of Riga, Monroe county. He has held a liquor tax certificate and sold liquor at his hotel until the 1st of May, 1908. At the town election in ¡November, 1907, the electors of the town of Riga voted under the local option clause of the Liquor Tax Law that no liquor should he sold in that town and, under the statute as it then existed, tIn'p vote would have become operative on the first of May; hut the Legislature of 1908 changed the beginning of the excise year from May first to October first, and the learned *539justice who granted the order directing the special deputy commissioner to issue a liquor tax certificate to the relator has held that the effect of the change of date, under the language employed by the Legislature, continues the status of the town of Riga as a town where liquor may be lawfully sold by those holding liquor tax certificates until October first. The special deputy commissioner, acting under the direction of the State Commissioner of Excise, had declined to issue a new liquor tax certificate from the first of May to the first of October; and the order referred to was made in a certiorari proceeding brought under the statute to compel the special deputy commissioner to issue the certificate. The State Commissioner was made a party to the proceeding under section 6 of the Liquor Tax Law, which provides that “ The state commissioner of excise shall be made a party to all actions and proceedings affecting in any manner the submission of the local option questions provided for in section 16 of this act, or the result of any vote thereupon or the traffic in liquors under this act; to all actions and proceedings relative to the issuance of liquor tax certificates under section 11 or the transfer thereof under sections 25, 26, or 27, or the surrender thereof for cancellation and rebate under section 25; to all injunction proceedings under section 29; and to all civil actions or proceedings, whether brought under the provisions of this act or otherwise, which in any manner affect the enjoyment of the privileges or the operation of the restrictions provided for in this act.” . On the same day that the order was granted, an appeal was taken therefrom to the Appellate Division by the special deputy commissioner and by the State Commissioner. ISTo stay of proceedings was obtained; and the special deputy commissioner is in contempt for failure to obey that order, unless the taking of the appeal by the State Commissioner operates to stay all proceedings under the order and protects the special deputy commissioner in his continued refusal to issue the liquor tax certificate. Section 1313 of the Code of Civil Procedure provides that: “ Upon an appeal taken by the people of the State or by a State officer, or board of State officers or a board of *540supervisors of a county, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security.” The State Commissioner of Excise is a State officer, but the special deputy commissioner for Monroe county is not a State officer. Public Officers Law, § 2. The special deputy state commissioner performs for Monroe county the duties which otherwise would devolve upon the county treasurer in respect to liquor tax certificates in said county, and “ such duties as may be required by the commissioner or as may be provided by law.” An appeal taken by the special deputy commissioner alone would not operate as a stay of proceedings, because he is not a State officer. The question now to be determined is whether the State Commissioner is so related to the order appealed from that his appeal, of necessity, under section 1313' of the Code, stays the compulsory effect of the order in so far as it commands his subordinate appointee, the special deputy commissioner, to issue the certificate. In my opinion the service of the notice of appeal on behalf of the State Commissioner of Excise operates to stay the effect of the order appealed from in all respects, and the special deputy commissioner is not guilty of contempt in refusing to issue the certificate pending the appeal. The statute requires the State Commissioner to be a party to this proceeding and to all proceedings affecting in any way the issuing of liquor tax certificates throughout the State. The object of this is to give the State Commissioner requisite power to appear and represent the interests of the department of which he is the head in any part of the State and in any court or proceeding where an adjudication may be made affecting the subject-matter referred to. His right to appeal from the order is clear, and he is therefore more than a mere nominal party. He is in the case for all purposes; and the stay of proceedings which his notice of appeal effectuates, under section 1313, is available as a defense to the motion to punish the special deputy for contempt. As the notice of appeal was served the same day the order was entered, there was no contumacious disregard of the man*541date of the court. Matter of Croker v. Sturgis, 38 Misc. Rep. 596. The relator urges that he will be left without a remedy in case the order appealed from is affirmed, having been deprived in the meantime of his lawful right to a liquor tax certificate. There would seem to be an obvious hardship imposed upon the relator by this situation, but no security can be compelled by the court as a condition of putting into effect the absolute stay which section 1313 provides for. The motion to punish for contempt is denied. Motion denied. | 01-08-2022 | [
"Sutherland, J. The relator, Ames, is the proprietor of a hotel located in the town of Riga, Monroe county. He has held a liquor tax certificate and sold liquor at his hotel until the 1st of May, 1908. At the town election in ¡November, 1907, the electors of the town of Riga voted under the local option clause of the Liquor Tax Law that no liquor should he sold in that town and, under the statute as it then existed, tIn'p vote would have become operative on the first of May; hut the Legislature of 1908 changed the beginning of the excise year from May first to October first, and the learned *539justice who granted the order directing the special deputy commissioner to issue a liquor tax certificate to the relator has held that the effect of the change of date, under the language employed by the Legislature, continues the status of the town of Riga as a town where liquor may be lawfully sold by those holding liquor tax certificates until October first.",
"The special deputy commissioner, acting under the direction of the State Commissioner of Excise, had declined to issue a new liquor tax certificate from the first of May to the first of October; and the order referred to was made in a certiorari proceeding brought under the statute to compel the special deputy commissioner to issue the certificate. The State Commissioner was made a party to the proceeding under section 6 of the Liquor Tax Law, which provides that “ The state commissioner of excise shall be made a party to all actions and proceedings affecting in any manner the submission of the local option questions provided for in section 16 of this act, or the result of any vote thereupon or the traffic in liquors under this act; to all actions and proceedings relative to the issuance of liquor tax certificates under section 11 or the transfer thereof under sections 25, 26, or 27, or the surrender thereof for cancellation and rebate under section 25; to all injunction proceedings under section 29; and to all civil actions or proceedings, whether brought under the provisions of this act or otherwise, which in any manner affect the enjoyment of the privileges or the operation of the restrictions provided for in this act.” .",
"On the same day that the order was granted, an appeal was taken therefrom to the Appellate Division by the special deputy commissioner and by the State Commissioner. ISTo stay of proceedings was obtained; and the special deputy commissioner is in contempt for failure to obey that order, unless the taking of the appeal by the State Commissioner operates to stay all proceedings under the order and protects the special deputy commissioner in his continued refusal to issue the liquor tax certificate. Section 1313 of the Code of Civil Procedure provides that: “ Upon an appeal taken by the people of the State or by a State officer, or board of State officers or a board of *540supervisors of a county, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security.” The State Commissioner of Excise is a State officer, but the special deputy commissioner for Monroe county is not a State officer. Public Officers Law, § 2. The special deputy state commissioner performs for Monroe county the duties which otherwise would devolve upon the county treasurer in respect to liquor tax certificates in said county, and “ such duties as may be required by the commissioner or as may be provided by law.” An appeal taken by the special deputy commissioner alone would not operate as a stay of proceedings, because he is not a State officer.",
"The question now to be determined is whether the State Commissioner is so related to the order appealed from that his appeal, of necessity, under section 1313' of the Code, stays the compulsory effect of the order in so far as it commands his subordinate appointee, the special deputy commissioner, to issue the certificate. In my opinion the service of the notice of appeal on behalf of the State Commissioner of Excise operates to stay the effect of the order appealed from in all respects, and the special deputy commissioner is not guilty of contempt in refusing to issue the certificate pending the appeal. The statute requires the State Commissioner to be a party to this proceeding and to all proceedings affecting in any way the issuing of liquor tax certificates throughout the State. The object of this is to give the State Commissioner requisite power to appear and represent the interests of the department of which he is the head in any part of the State and in any court or proceeding where an adjudication may be made affecting the subject-matter referred to. His right to appeal from the order is clear, and he is therefore more than a mere nominal party.",
"He is in the case for all purposes; and the stay of proceedings which his notice of appeal effectuates, under section 1313, is available as a defense to the motion to punish the special deputy for contempt. As the notice of appeal was served the same day the order was entered, there was no contumacious disregard of the man*541date of the court. Matter of Croker v. Sturgis, 38 Misc. Rep. 596. The relator urges that he will be left without a remedy in case the order appealed from is affirmed, having been deprived in the meantime of his lawful right to a liquor tax certificate.",
"There would seem to be an obvious hardship imposed upon the relator by this situation, but no security can be compelled by the court as a condition of putting into effect the absolute stay which section 1313 provides for. The motion to punish for contempt is denied. Motion denied."
]
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Fourth Court of Appeals San Antonio, Texas November 14, 2018
No. 04-18-00682-CV
IN RE Reina S.C.
Original Mandamus Proceeding1
ORDER
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Relator filed a petition for writ of mandamus in this court on September 24, 2018. The court requested a response, ordering it to be filed on or before November 8, 2018. The attorney ad litem for the children, one of the real parties in interest, filed a motion for extension of time to file a response. On November 13, 2018, the attorney ad litem for the children filed a response. Accordingly, we GRANT the motion for extension of time and ORDER the response deemed filed.
We order the clerk of this court to serve a copy of this order on all counsel and the trial court.
It is so ORDERED on this 14th day of November, 2018.
PER CURIAM
ATTESTED TO: _______________________________ KEITH E. HOTTLE, Clerk of Court
1 This proceeding arises out of Cause No. 2018-PA-01865, styled In the Interest of J.J.R.S. and L.J.R.S., Children, pending in the 37th Judicial District Court, Bexar County, Texas. The Honorable Charles E. Montemayor, Associate Judge, signed the order at issue in this original proceeding. | 11-15-2018 | [
"Fourth Court of Appeals San Antonio, Texas November 14, 2018 No. 04-18-00682-CV IN RE Reina S.C. Original Mandamus Proceeding1 ORDER Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Relator filed a petition for writ of mandamus in this court on September 24, 2018. The court requested a response, ordering it to be filed on or before November 8, 2018. The attorney ad litem for the children, one of the real parties in interest, filed a motion for extension of time to file a response. On November 13, 2018, the attorney ad litem for the children filed a response. Accordingly, we GRANT the motion for extension of time and ORDER the response deemed filed. We order the clerk of this court to serve a copy of this order on all counsel and the trial court.",
"It is so ORDERED on this 14th day of November, 2018. PER CURIAM ATTESTED TO: _______________________________ KEITH E. HOTTLE, Clerk of Court 1 This proceeding arises out of Cause No. 2018-PA-01865, styled In the Interest of J.J.R.S. and L.J.R.S., Children, pending in the 37th Judicial District Court, Bexar County, Texas. The Honorable Charles E. Montemayor, Associate Judge, signed the order at issue in this original proceeding."
]
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188 F.Supp.2d 1287 (2002) UNITED STATES of America, Plaintiff, v. Timothy Jay CLINE, a/k/a "Pony," and Charles Williams Hopkins, Defendants. No. 00-40024-03/06-SAC. United States District Court, D. Kansas. February 21, 2002. *1288 *1289 *1290 *1291 Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for Plaintiff. Janet Marie Cline, Quapaw, OK, for Defendants.
MEMORANDUM AND ORDER CROW, Senior District Judge. The case comes before the court on the following motions in limine: Charles William Hopkins' motion to exclude evidence of prior crimes (Dk.1215); Hopkins' motion to bar the government from vouching (Dk.1218); Timothy Cline's motion to exclude expert opinion testimony on fingerprint identification (Dk.1222); Cline's motion to exclude evidence that Assistant United States Attorney Anthony Mattivi participated in the execution of the search warrant on Cline's residence and in the interview of Cline following his arrest (Dk.1224); Cline's motion to exclude irrelevant and prejudicial evidence (Dk.1226); Cline's motion to exclude expert testimony regarding the interpretation of the English language (Dk.1228); Cline's motion to prohibit the presentation of testimony by "overview witness" (Dk.1230); the government's motion to allow two case agents to be excused from sequestration under Fed. R.Evid. 615 (Dk.1245); Cline's motion to prohibit the government's use of its presentation software to publish the wiretap and undercover recordings at trial (Dk.1256); Cline's motion to prohibit the government from offering or displaying the firearms seized from Cline's residence on March 27, 2000, (Dk.1258); Cline's motion to prohibit mention or evidence of non-testifying co-defendants' guilty pleas (Dk.1260); and the government's motion to dismiss various charges and to sequentially renumber the remaining counts and proposed summary of indictment (Dk.1265).
MOTION IN LIMINE STANDARDS A creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence, the motion in limine gives a court the chance " `to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.'" Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir.1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)); see also Deghand v. Wal-Mart Stores, Inc., 980 F.Supp. 1176, 1179 (D.Kan.1997). Though such rulings can work a savings in time, cost, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence. The better practice is to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D.Ohio 1987). Indeed, a court should refrain from the undue speculation inherent in making evidentiary rulings before hearing the factual context at trial. A trial court may alter its limine ruling based on developments at trial or on its own sound judicial discretion. Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Some in limine rulings, like those involving Rule 609(a)(1), "are necessarily preliminary because the required balancing may be reassessed as the evidence actually comes in." United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir.1996) (citing United States v. Mejia-Alarcon, 995 F.2d 982, 987 n. 2 (10th Cir.), cert. denied, 510 U.S. 927, 114 *1292 S.Ct. 334, 126 L.Ed.2d 279 (1993)). For that matter, "[t]he admissibility of Rule 404(b) evidence will generally be a factbound determination, depending to a significant degree on the character of the other evidence admitted at trial, all of which requires a balancing of probative value versus unfair prejudice at trial." United States v. Lawless, 153 F.3d 729, 1998 WL 438662, at *4 (10th Cir. July 15, 1998) (citations omitted), cert. denied, 525 U.S. 1027, 119 S.Ct. 561, 142 L.Ed.2d 467 (Nov. 30, 1998). "A district court `may change its ruling at any time for whatever reason it deems appropriate.'" United States v. Martinez, 76 F.3d at 1152 (quoting Jones v. Stotts, 59 F.3d 143, 146 (10th Cir.1995)). Consequently, in limine motions and rulings will not necessarily preserve objections for appeal: A motion in limine will not preserve an objection if it is not renewed at the time the evidence is introduced unless "the issue (1) is fairly presented to the district court, (2) is the type of issue that can be finally decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial judge.... [M]ost objections will prove to be dependent on trial context and will be determined to be waived if not renewed at trial." United States v. McVeigh, 153 F.3d 1166, 1200 (10th Cir.1998) (quoting United States v. Mejia-Alarcon, 995 F.2d at 986-88), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). As a procedural matter, the movant should identify the particular evidence at issue and articulate with specificity the arguments supporting the position that the particular evidence is inadmissible on any relevant ground. A court is well within its discretion to deny a motion in limine that fails to identify the evidence with particularity or to present arguments with specificity. National Union v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996).
HOPKINS' MOTION TO EXCLUDE EVIDENCE OF PRIOR CRIMES (Dk.1215) Arguing Rules 403 and 404 of the Federal Rules of Evidence, Hopkins seeks to bar the government from referring to or introducing evidence of his prior conviction for "domestic/kidnapping unlawful restraint" and of his prior drug use. Hopkins states his intention to introduce character evidence. The government opposes the motion saying it is premature as this evidence may be admissible on several grounds depending on what occurs during trial. The government gives several examples in support of its position. The government further argues that the defendant's prior drug use is plainly relevant to the drug conspiracy charge and admissible under Rule 404(b) as evidence of the defendant's plan, motive, and intent. Concerning the defendant's prior conviction, the court denies the motion as premature but directs the government not to reference or mention, directly or indirectly, before the jury panel or jury or introduce any evidence with respect to this conviction without first approaching the bench and having the issue of its use or admissibility decided by the court. As for evidence of the defendant's prior drug use, the court denies the motion on its merits and for its failure to identify with particularity the evidence at issue.
HOPKINS' MOTION TO BAR THE GOVERNMENT FROM VOUCHING (Dk.1218) Hopkins asks for an order barring the government from bringing out the fact and/or emphasizing that a grand jury returned an indictment against him. The government opposes the motion as too broad in rejecting the proper use of an *1293 indictment at trial and as too vague in not specifying what the defendant believes to be improper vouching by the government. The government further represents it will not offer any evidence or argument about the indictment that is contrary to court's standard instruction that an indictment is a mere charge and is not evidence. Because the government does not intend to make any use of the indictment that is contrary to the jury instructions,[1] the court denies the motion as moot. As far as any other possible vouching conduct by the government, the defendant's arguments are too vague and speculative for the court to decide.
CLINE'S MOTION TO EXCLUDE EXPERT TESTIMONY ON FINGERPRINT IDENTIFICATION (Dk.1222) The defendant Cline seeks an order prohibiting the government from introducing expert testimony or expert reports that the latent print obtained from government's exhibit N-46 matches one of Timothy Cline's rolled fingerprints from a fingerprint card. Citing the recent decision of United States v. Llera Plaza, 179 F.Supp.2d 492 (E.D.Pa.2002), the defendant argues such expert testimony fails the standards articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and recently amended Fed.R.Evid. 702, in that fingerprint identification analysis has not been tested scientifically, it has not been subjected to peer review and publication, it has a practitioner error rate that is unknown, it is a subjective determination without any minimum point standards for identification, and there are no uniform qualification standards for fingerprint examiners. The government counters that the Llera Plaza decision represents a minority viewpoint with all other courts finding fingerprint identification testimony to be reliable and admissible. The issue is one of reliability. The gatekeeping function established in Daubert is "to ensure the reliability and relevancy of expert testimony" and "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Some of the factors relevant to this determination identified in Daubert and Kumho include: (1) whether the theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a high known or potential rate of error; (4) whether its operation is subject to controlling standards; and (5) whether it enjoys general acceptance within a relevant scientific or expert community. 526 U.S. at 149-50, 119 S.Ct. 1167. Because "there are many kinds of experts and many different kinds of expertise," these factors are not exhaustive, exclusive or definitive. 526 U.S. at 150-51, 119 S.Ct. 1167. These factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." 526 U.S. at 150, 119 S.Ct. 1167. Research shows Llera Plaza stands alone in rejecting fingerprint identification opinions on the standards established in Daubert, Kumho, and Fed.R.Evid. 702. *1294 The district court itself recognized that other courts addressing this issue have upheld admissibility even after the Daubert decision and the more recent amendment of Fed.R.Evid. 702. Llera Plaza, 179 F.Supp.2d at 500-501. While certainly exhaustive and informed, the analysis of the Daubert factors used in Llera Plaza does not persuade this court to depart from the well-traveled path. The decision should be applauded to the extent that it encourages empirical testing of the process within more traditional "scientific" parameters, leads to additional submissions to the relevant body of peer review literature, and possibly fosters the development of uniform standards followed and accepted by all qualified fingerprint examiners. It is the humble opinion of this court, however, that the decision in Llera Plaza overreaches in concluding that the current fingerprint identification analysis so utterly fails the so-called "scientific" criteria in Daubert as to render all fingerprint examiners' "subjective" evaluations or identifications unreliable and inadmissible under Rule 702. This court remains satisfied that general fingerprint identification analysis clears the threshold of reliability under Rule 702 after considering all relevant factors, including those from Daubert, and that the shortcomings argued against this analysis are more prudently treated as matters going to the weight of the evidence.[2] Rather than repeating or attempting to restate what other courts have said in their evaluation of the Daubert factors for fingerprint identification, the court simply adopts what has been said in the following decisions. United States v. Havvard, 117 F.Supp.2d 848, 853-855 (S.D.Ind. 2000), aff'd, 260 F.3d 597, 599-601 (7th Cir.2001); see United States v. Rogers, 26 Fed.Appx. 171, 2001 WL 1635494, at *1-*2 (4th Cir. Dec. 20, 2001) (Table); United States v. Reaux, 2001 WL 883221, at *1-*2 (E.D.La. Jul.31, 2001); United States v. Joseph, 2001 WL 515213 (E.D.La. May 14, 2001); United States v. Martinez-Cintron, 136 F.Supp.2d 17, 18-20 (D.Puerto Rico 2001). In these same decisions, the courts also recognized that evidentiary Daubert hearings were unnecessary as the reliability of the methods could be properly taken for granted. See, e.g., United States v. Reaux, 2001 WL at *1-2; United States v. Sherwood, 98 F.3d 402, 408 (9th Cir.1996). The court likewise holds that a Daubert hearing is unnecessary as the defendant is lodging only a general attack on fingerprint identification testimony and methodology. Before leaving this subject, the court feels compelled to make a couple of observations on this emerging issue. Used successfully in criminal trials for over 100 years, fingerprint identification analysis has withstood the scrutiny and testing of the adversarial process. United States v. Havvard, 260 F.3d at 601.[3] Those of a "scientific" bent certainly can take issue with whether the judges and lawyers have the education or training to engage in "scientific" testing and with whether the courtrooms provide the sterile, laboratory-like and objective atmosphere associated with and probably conducive to scientific analysis. Even so, it seems an unreasonable stretch simply to discard this experiential testing as wholly *1295 unreliable and to relegate the testifying opinions of all these fingerprint examiners to ipse dixit.[4] Moreover, this court joins others who do not read Daubert and Kumho as elevating the scientific method to the touchstone by which all Rule 702 evidence is to be judged. See, e.g., United States v. Havvard, 260 F.3d at 600 ("[T]he idea that fingerprint comparison is not sufficiently `scientific' cannot be the basis for exclusion under Daubert."). The Supreme Court itself eschewed such a reading when it dismissed the argument that the trial court's gatekeeping obligation depended on whether the expert knowledge to be offered was scientific, technical or other: Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called "general truths derived from ... specialized experience." (citation omitted). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest "upon an experience confessedly foreign in kind to [the jury's] own." (citation omitted). The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge. * * * * * * Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. (citation omitted). In other cases, the relevant reliability concerns may focus upon personal knowledge or experience. As the Solicitor General points out, there are many different kinds of experts, and many different kinds of expertise. See Brief for United States as Amicus Curiae 18-19, and n. 5 (citing cases involving experts in drug terms, handwriting analysis, criminal modus operandi, land valuation, agricultural practices, railroad procedures, attorney's fee valuation, and others). Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U.S. at 594, 113 S.Ct. 2786. 526 U.S. at 148-50, 119 S.Ct. 1167. (citation omitted). Indeed, the trial court's "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595, 113 S.Ct. 2786.[5] The court's reading of the case law and literature on this issue leads it to believe that the real rub is with the conclusiveness in which fingerprint examiners express their opinions and with which the opinions may have been generally received by the courts and juries. Such a dispute, however, does not justify being "overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the *1296 traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The court overrules the defendant's motion in limine.
CLINE'S MOTION TO EXCLUDE EVIDENCE THAT ASSISTANT UNITED STATES ATTORNEY ANTHONY MATTIVI PARTICIPATED IN THE EXECUTION OF THE SEARCH WARRANT ON CLINE'S RESIDENCE AND IN THE INTERVIEW OF CLINE FOLLOWING HIS ARREST (Dk.1224) The defendant Cline does not seek the disqualification of Assistant United States Attorney ("AUSA") Mattivi but does want to keep out any evidence that AUSA Mattivi personally participated in these events, to redact any such reference to him in the documents to be offered at trial, and to instruct the government's witnesses not to mention Mattivi's presence at these events. The government responds that AUSA Mattivi participated in the interview of Cline but did not participate in the execution of the search warrant at Cline's residence. The government represents that it will not mention Mattivi's presence at the interview and has no documents to be introduced at trial which mention Mattivi's presence at either event. Other than directing the government to instruct its witnesses to not mention AUSA Mattivi's presence or participation in these events, the court denies the defendant's motion as moot in light of the government's representation.
CLINE'S MOTION TO EXCLUDE IRRELEVANT AND PREJUDICIAL EVIDENCE (Dk.1226) The defendant Cline seeks an order prohibiting the prosecution from referring to, mentioning, suggesting, introducing evidence or attempting to introduce into evidence, or stating before the jury for any purpose the following eleven paragraphs of possible matters. Considering the government's response[6] and the parties' different arguments, the court rules as follows. 1. Any and all evidence related to the 1994 IRS/DEA search warrants at Romantic Delights and the Cline residence. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 2. Any and all evidence related to the seizure in May 1995 of $12,050 cash from Mr. Cline and $10,130 from Rob Crance at the Ontario, California, airport. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 3. Any and all evidence related to David Milton Hammons' claim that he sold 100 pounds of methamphetamine to Mr. Cline through Harlan Sartin during 1996. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 4. Any alleged connection between the Hell's Angels and Biker's Dream mentioned by Hammons that anyone who owned a Biker's Dream franchise would have to be affiliated in some way with the Hell's Angels. This request is *1297 denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 5. Any and all evidence regarding Anthony Fracasso's and/or Kent Groves' prior alleged drug transactions with Mr. Cline. Besides the typical concerns addressed by Rules 403 and 404(b), the defendant argues these uncharged acts carry the additional prejudice of confusing, delay-causing mini-trials. The government represents that both Mr. Fracasso and Mr. Groves will be witnesses testifying to the defendant's involvement in the manufacture and distribution of methamphetamine and to the defendant's use of Johnny Shane Wright as the "cook" replacing Mr. Fracasso. The government intends to offer this evidence pursuant to Rule 404(b) to show the defendant's plan, motive, intent and absence of mistake. The court overrules the defendant's in limine request, as the government's response gives the court sufficient reason to believe that this evidence (1) will be offered for a proper Rule 404(b) purposes,[7] (2) will be relevant under Rule 401,[8] and (3) will have probative value that is not substantially outweighed by its potential for unfair prejudice[9] under Rule 403. The court will hear the defendant as to the timing and substance of an appropriate limiting instruction. 6. Any and all evidence surrounding law enforcement's seizure of approximately $34,000 in cash from a motorcycle registered to John Keaney which was being transported in the back of a pickup truck driven by Rudolp Maio. The defendant argues that the evidence of the odor of marijuana and/or marijuana residue near the cash is completely irrelevant to the charged methamphetamine conspiracy. The government points out the conspiracy in count one charges the distribution of "controlled substances," not just methamphetamine. The government argues that it will be able to tie directly this seizure of $34,000 to the charged conspiracy. Based on what the court has learned about this seizure during the suppression hearing and on what the government presently contends, the court has reason to believe the government will be able to show the relevance of this evidence. This request is overruled. 7. Any reference to this case or the underlying investigation as "Operation Renegade." The defendant comes forth with no sound objection to the government referring to its criminal investigation by its *1298 given name. The court overrules this request. 8. Any and all evidence regarding Tim and Janet Cline's pending divorce, Mr. Cline's present girlfriend, the fire at the Cline residence, and the financial difficulties of Mr. Cline's business. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury panel or jury without first approaching the bench. 9. Any and all evidence regarding the death of Bobby Gaskill, who died of an asthma-induced heart attack and/or overdose after consuming methamphetamine allegedly provided by co-defendant Michael Hopkins. The defendant argues this evidence is not relevant as neither he nor any of the defendants remaining for trial are alleged to have been involved in this death. The defendant also contends the evidence is unfairly prejudicial in that it would frighten the jury. Though believing there is credible evidence linking Gaskill's death to the methamphetamine manufactured and distributed by the conspiracy charged in count one, the government does not know whether it will offer this evidence in its case in chief. The court takes this request under advisement. The government shall approach the bench before it or any of its witnesses directly or indirectly make any mention of or reference to Gaskill's death in front of the jury panel or jury or before it offers any evidence of the same. 10. Any and all "outlaw motorcycle gang" evidence, including, but not limited to, any reference to the Loners being an "outlaw motorcycle gang" and that Mr. Cline is a member of the Loners. The defendant complains this evidence is an effort to prove guilt by association. With the possible exception of co-defendant John Cervine, the defendant argues there is no evidence that any of the other co-conspirators are members of the Loners or that any sales of controlled substances were made to Loners members. The defendant also insists that the government is unable to tie Cervine's possession of drugs to his membership or the defendant's membership in the Loners. The government responds that it will offer evidence of the Loners Motorcycle Gang to prove and explain relationships between co-conspirators and witnesses. Denying that this evidence will be offered to prove criminal "propensity," the government maintains the gang membership will be "direct evidence of the formation, purpose, and activities of the conspiracy, as well as the defendant's and his co-conspirators' knowledge." (Dk. 1246, at p. 8). The government represents that it will not refer to the Loners Motorcycle Gang as an "outlaw" gang. The court overrules the motion, as the government offers proper purposes for introducing evidence of the membership of the defendant, co-conspirators and witnesses in the Loners Motorcycle Gang. The court would entertain giving a limiting instruction on the jury's use and consideration of this evidence in the event that the defendant would propose one. 11. Any and all racially inappropriate comments contained in the wiretap tapes. The defendant points to an ambiguous reference to "white boy" made by Janet Cline in a wiretap tape, as a comment that may be offensive to African Americans on the jury. The government denies that this statement on its face qualifies as a racially inappropriate comment. The court overrules this objection, as the cited comment is ambiguous and does not appear to be so racially offensive as to have the potential for creating unfair prejudice against the defendant.
*1299 CLINE'S MOTION TO EXCLUDE EXPERT TESTIMONY REGARDING THE INTERPRETATION OF THE ENGLISH LANGUAGE (Dk.1228) Noting the contents of search warrant affidavits given by the Drug Enforcement Administration ("DEA") special agents in this case, the defendant seeks to preclude the government from presenting expert witness testimony regarding the meaning of certain words used in telephone conversations intercepted by wiretaps. The defendant argues this evidence fails the Daubert standards and alternatively requests a Daubert hearing concerning the reliability and relevance of any such testimony. The government responds that it does not intend to offer such expert testimony in this case and that it will rely on testifying co-conspirators to explain the meaning of certain words. There being no expert witnesses or Daubert issues on the meaning of certain words used in wiretapped telephone conversations, the court denies the motion as moot.
CLINE'S MOTION TO PROHIBIT THE PRESENTATION OF TESTIMONY BY "OVERVIEW WITNESS" (Dk.1230) The defendant moves the court for an order prohibiting the government from presenting the testimony of an "overview witness" at the beginning of the government's case in chief. The defendant characterizes this situation as the government calling a "summary witness" who will testify before there is any evidence admitted to summarize and who will give essentially a second opening statement of the government's anticipated evidence. The government refutes this characterization saying the "overview witnesses" will be fact witnesses "who will establish, among other things, the conspiracy and the defendants' roles in that conspiracy for purposes of introducing co-conspirator statements under Fed.R.Evid. 801(d)(2)(E)." (Dk.1243). The court overrules the defendant's motion as speculative, premature, and vague. The defendant's objections to this testimony are best presented and decided during trial.
GOVERNMENT'S MOTION TO ALLOW TWO CASE AGENTS TO BE EXCUSED FROM SEQUESTRATION UNDER FED. R. EVID. 615 (Dk.1245) The government requests an order allowing it to have both DEA Special Agent Robert Ryan and KBI Special Agent James Timothy Botts be present together or individually at the government's table during trial. In its prior order, the court granted the government's request to have two case agents present during trial and assumed the agents would be Special Agent Ryan and Special Agent John Aldine. (Dk.1238, p. 12). With the government's clarification of the agents wanted at its table, Ryan and Botts, the court grants the government's motion.
CLINE'S MOTION TO PROHIBIT THE GOVERNMENT'S USE OF ITS PRESENTATION SOFTWARE TO PUBLISH THE WIRETAP AND UNDERCOVER RECORDINGS AT TRIAL (Dk.1256) The defendant seeks to bar the government from using its presentation software in publishing the wiretap and undercover recordings to the jury. The defendant questions the adequacy of a record on appeal should this equipment be used. The defendant complains that the presentation would require the jury to focus on the same location to receive the sound and to see the transcript. The defendant objects that the presentation displays photographs of the purported speakers and alternatively highlights the supposed speaker's photograph. The defendant objects to the excessive time it would take for his counsel to verify the accuracy of the government's photographic *1300 designation of the different speakers for the entire duration of the approximately fifty tapes to be presented by the government. Finally, the defendant objects to the obvious mug shot the government is using for his photograph. The government counters that the software program is not part of the evidence but only a demonstrative aid and that the tapes are the evidence and their substance are not altered by the software program. The government points out that the sound and transcripts do not have the same source, as the sound comes from the courtroom's sound system and the transcripts are displayed on the individual monitors in the jury box. Just like paper copies of the transcript, jurors will have the choice of only listening to the recording or also following along with the transcript. As far as the accuracy of the photographic displays, the government insists it is no different from the written transcripts to which the defendant has had access for some time. The government concedes the picture of Cline being used is a mug shot and offers the defendant the chance to submit another picture or to have the government take a different photograph of him. In light of the government's response to the different objections, the court denies the defendant's motion. There appears to be no issue as to the record on appeal, as the government intends to offer the tapes into evidence. Should there be some need to include all or a part of the transcripts in the record, the government appears ready to provide a paper copy of the same. The photographic display of the purported speakers is not any more prejudicial to the defendant than the names of the speakers appearing on the written transcript. Finally, the court will permit the defendant to submit an alternative photograph of himself or make himself available for the government to take another photograph. If the defendant does not cooperate in this regards, the government will be permitted to use the defendant's mug shot. If the parties cannot agree on an alternative photograph, they should alert the court promptly.
CLINE'S MOTION TO PROHIBIT THE GOVERNMENT FROM OFFERING OR DISPLAYING THE FIREARMS SEIZED FROM CLINE'S RESIDENCE ON MARCH 27, 2000, (DK.1258) The defendant argues that sixteen firearms allegedly seized from his residence during the execution of a search warrant on his home do not form the basis for any charges in this case. The defendant insists that the firearms are not relevant to the charged counts and, alternatively, that the danger of unfair prejudice to him substantially outweighs any minimal probative value which the firearms may arguable have to this case. The defendant believes the government wants to introduce this firearm evidence in an effort to paint him as a "dangerous" man and to frighten the jury into convicting him on this improper basis. The government discourages the court from making a pretrial ruling as the relevance of this evidence will depend largely on the factual context coming out at trial. The government asks the court to defer its ruling until trial and to consider the following arguments at that time. Firearms are tools of the trade for those engaged in drug trafficking activities. The evidence of firearms will be used to show the defendant's involvement in the charged conspiracy, the defendant's use of typical tools of the drug trade, and a location for the conspiracy's operations. The firearms also will bolster the other evidence found on the Oklahoma property that connects it to the drug conspiracy. The court denies the motion in limine and defers ruling on the admissibility of *1301 this firearm evidence until it is offered at trial. A Rule 403 objection to firearm evidence introduced in a drug trafficking case is not new to this circuit: In the context of drug distribution offenses, firearms are viewed as "`tools of the trade' that is, means for the distribution of illegal drugs." United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir.1991). As such, they are probative of a defendant's participation in the drug distribution business and in the particular charged distribution offenses, and it is immaterial that Mr. Bailey was not being tried for any offense directly related to his possession of firearms. See id. Indeed, several witnesses testified that Mr. Bailey carried a firearm during drug transactions. Finally, while the evidence was unfavorable, it was by no means so unfairly prejudicial as to "be misleading and not aid and assist the jury in making a material determination of the case." [United States v.] Flanagan, 34 F.3d [949], 953 [(10th Cir.1994)] (quotation omitted). United States v. Baker, 166 F.3d 348, 1998 WL 808392, at *5 (10th Cir. Nov. 20, 1998); United States v. Burnett, 141 F.3d 1186, 1998 WL 104718, at *3-*4 (10th Cir.1998) ("evidence of firearms is sufficiently probative to warrant admission under Rule 403 to show that a defendant is involved in drug distribution." That a defendant is charged "only with drug possession and conspiracy charges does not render firearm evidence irrelevant or inadmissible." (citations omitted)); United States v. Mendoza-Salgado, 964 F.2d 993, 1007 (10th Cir.1992) ("Admitting evidence of drugs or weapons to support the government's theory of a drug conspiracy is generally not improper." (citations omitted)); United States v. Martinez, 938 F.2d 1078, 1084 (10th Cir.1991) ("Violence is not an uncommon feature of the drug trade and weapons are often viewed as necessary tools to facilitate it."). Guided by these decisions, the court will balance the Rule 403 concerns at trial upon hearing the factual context for this firearm evidence being offered, e.g., the number, location and nature of the firearms being offered, the proximity of the guns to any of the seized controlled substances or large sums of cash, the amount of controlled substances seized from the residence, and the evidence showing the nature, scope and mode of operation for the charged conspiracy and how the residence was used to facilitate the drug conspiracy. The court denies the defendant's request for an in limine ruling on the admissibility of the firearms.
CLINE'S MOTION TO PROHIBIT MENTION OR EVIDENCE OF NON-TESTIFYING CO-DEFENDANTS' GUILTY PLEAS (Dk.1260) The court denies this motion as moot based on the government's representation that it does not intend to offer evidence of non-testifying co-defendants' guilty pleas. The court further directs the government not to reference or otherwise mention these guilty pleas for any purpose in the presence of the jury panel or jury.
GOVERNMENT'S MOTION TO DISMISS VARIOUS CHARGES AND TO SEQUENTIALLY RENUMBER THE REMAINING COUNTS AND PROPOSED SUMMARY OF INDICTMENT (Dk.1265) The defendants have filed no objections to the dismissal of various charges and to the renumbering of the remaining counts. The court grants the motion as uncontested and as in the best interest of the parties, the court and the public. The defendant Cline objects to the government's summary of the indictment for its repeated use of "illegal" and for its erroneous description of count six as charging "distribution" rather than "possession." *1302 Using "illegal" in lieu of saying "in violation of" a specific statute is appropriate, if not necessary. The number of times that "illegal" appears in the summary is not prejudicial to the defendant. The court overrules the defendant's objection to the repeated use of "illegal" but sustains the defendant's objection to the summary of count six and changes "distributed" to "possessed." IT IS THEREFORE ORDERED that Charles William Hopkins' motion to exclude evidence of prior crimes (Dk.1215) is denied as to evidence of the defendant's prior drug use and is denied as to evidence of the defendant's prior conviction but the government shall not reference or mention, directly or indirectly, before the jury panel or jury or introduce any evidence with respect to this conviction without first approaching the bench; IT IS FURTHER ORDERED that Hopkins' motion to bar the government from vouching (Dk.1218) is denied as moot and speculative; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude expert opinion testimony on fingerprint identification (Dk.1222) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude evidence that Assistant United States Attorney Anthony Mattivi participated in the execution of the search warrant on Cline's residence and in the interview of Cline following his arrest (Dk.1224) is denied as moot; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude irrelevant and prejudicial evidence (Dk.1226) is denied as moot as to 1, 2, 3, 4 and 8; is denied as to 5, 6, 7, 10 and 11; and is taken under advisement as to 9; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude expert testimony regarding the interpretation of the English language (Dk.1228) is denied as moot; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the presentation of testimony by "overview witness" (Dk.1230) is denied as speculative, premature and vague; IT IS FURTHER ORDERED that the government's motion to allow two case agents to be excused from sequestration under Fed.R.Evid. 615 (Dk.1245) is granted; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the government's use of its presentation software to publish the wiretap and undercover recordings at trial (Dk.1256) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the government from offering or displaying the firearms seized from Cline's residence on March 27, 2000, (Dk.1258) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit mention or evidence of non-testifying co-defendants' guilty pleas (Dk.1260) is denied as moot; IT IS FURTHER ORDERED that the government's motion to dismiss various charges and to sequentially renumber the remaining counts and proposed summary of indictment (Dk.1265) is granted. NOTES [1] The court intends to instruct the jury as follows: "An indictment is only a method of accusing a defendant of a crime. It is not evidence of any kind against a defendant and does not create any presumption or permit any inference of guilt. It is a mere charge or accusation nothing more and nothing less." [2] Of course, the court's conclusions speak only to the subject in general and do not address the reliability or relevance of the expert opinions to be offered here. Neither side has devoted any of its discussion to the particular fingerprint identification opinions in this case. [3] The Tenth Circuit, in contrasting hair analysis, grouped fingerprint identification with DNA analysis as being "conclusive." Williamson v. Ward, 110 F.3d 1508, 1520 n. 13 (10th Cir.1997). [4] General acceptance remains a relevant consideration under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). United States v. Havvard, 260 F.3d 597, 600 (7th Cir.2001). [5] In saying the "focus" should be on theory and methodology, not conclusions, the Court necessarily recognizes that it is for the jury to decide the relevance and reliability of a particular application of the theory and methodology found reliable by the trial court. Thus, when a trial court finds the theory reliable that fingerprints are unique and permanent and ascertains that there is an established and accepted methodology for matching fingerprints, its gatekeeping role has been served and now the jury must determine whether the expert witness has properly applied this theory and methodology to the case. [6] As to five of the paragraphs, the government states it has no intention of introducing such evidence but reserves its right to introduce the same should the defendant make the evidence relevant. [7] The Tenth Circuit "has repeatedly held that the use of prior drug involvement to show plan, motive or intent in a drug trafficking offense is appropriate." United States v. Ramirez, 63 F.3d 937, 943 (10th Cir.1995) (citations omitted). [8] Evidence of prior drug involvement is relevant when it relates to a matter that is at issue in the case. United States v. Hardwell, 80 F.3d 1471, 1489 (10th Cir.1996). The relevance of prior narcotics involvement is evaluated by whether it is close in time and similar to the charged crime. United States v. Conway, 73 F.3d 975, 981 (10th Cir.1995). Under the relevance prong, the court also must decide whether from the evidence "the jury could reasonably find" that the defendant committed or participated in the prior narcotics violations "by a preponderance of the evidence." See Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). [9] Evidence of prior bad acts that went uncharged can be "highly probative in showing motive, intent, knowledge or plan in the context of a conspiracy prosecution." United States v. Edwards, 69 F.3d 419, 436 (10th Cir.1995) (quotation omitted). "This is particularly true where the uncharged acts are similar in method to the charged conspiracy and sufficiently close in time." Id. | 10-30-2013 | [
"188 F.Supp.2d 1287 (2002) UNITED STATES of America, Plaintiff, v. Timothy Jay CLINE, a/k/a \"Pony,\" and Charles Williams Hopkins, Defendants. No. 00-40024-03/06-SAC. United States District Court, D. Kansas. February 21, 2002. *1288 *1289 *1290 *1291 Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for Plaintiff. Janet Marie Cline, Quapaw, OK, for Defendants. MEMORANDUM AND ORDER CROW, Senior District Judge. The case comes before the court on the following motions in limine: Charles William Hopkins' motion to exclude evidence of prior crimes (Dk.1215); Hopkins' motion to bar the government from vouching (Dk.1218); Timothy Cline's motion to exclude expert opinion testimony on fingerprint identification (Dk.1222); Cline's motion to exclude evidence that Assistant United States Attorney Anthony Mattivi participated in the execution of the search warrant on Cline's residence and in the interview of Cline following his arrest (Dk.1224); Cline's motion to exclude irrelevant and prejudicial evidence (Dk.1226); Cline's motion to exclude expert testimony regarding the interpretation of the English language (Dk.1228); Cline's motion to prohibit the presentation of testimony by \"overview witness\" (Dk.1230); the government's motion to allow two case agents to be excused from sequestration under Fed.",
"R.Evid. 615 (Dk.1245); Cline's motion to prohibit the government's use of its presentation software to publish the wiretap and undercover recordings at trial (Dk.1256); Cline's motion to prohibit the government from offering or displaying the firearms seized from Cline's residence on March 27, 2000, (Dk.1258); Cline's motion to prohibit mention or evidence of non-testifying co-defendants' guilty pleas (Dk.1260); and the government's motion to dismiss various charges and to sequentially renumber the remaining counts and proposed summary of indictment (Dk.1265). MOTION IN LIMINE STANDARDS A creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence, the motion in limine gives a court the chance \" `to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.'\" Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir.1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp.",
"1400, 1401 (D.Md.1987)); see also Deghand v. Wal-Mart Stores, Inc., 980 F.Supp. 1176, 1179 (D.Kan.1997). Though such rulings can work a savings in time, cost, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence. The better practice is to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. ), cert.",
"denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D.Ohio 1987). Indeed, a court should refrain from the undue speculation inherent in making evidentiary rulings before hearing the factual context at trial. A trial court may alter its limine ruling based on developments at trial or on its own sound judicial discretion. Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Some in limine rulings, like those involving Rule 609(a)(1), \"are necessarily preliminary because the required balancing may be reassessed as the evidence actually comes in.\" United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir.1996) (citing United States v. Mejia-Alarcon, 995 F.2d 982, 987 n. 2 (10th Cir. ), cert. denied, 510 U.S. 927, 114 *1292 S.Ct. 334, 126 L.Ed.2d 279 (1993)). For that matter, \"[t]he admissibility of Rule 404(b) evidence will generally be a factbound determination, depending to a significant degree on the character of the other evidence admitted at trial, all of which requires a balancing of probative value versus unfair prejudice at trial.\"",
"United States v. Lawless, 153 F.3d 729, 1998 WL 438662, at *4 (10th Cir. July 15, 1998) (citations omitted), cert. denied, 525 U.S. 1027, 119 S.Ct. 561, 142 L.Ed.2d 467 (Nov. 30, 1998). \"A district court `may change its ruling at any time for whatever reason it deems appropriate.'\" United States v. Martinez, 76 F.3d at 1152 (quoting Jones v. Stotts, 59 F.3d 143, 146 (10th Cir.1995)). Consequently, in limine motions and rulings will not necessarily preserve objections for appeal: A motion in limine will not preserve an objection if it is not renewed at the time the evidence is introduced unless \"the issue (1) is fairly presented to the district court, (2) is the type of issue that can be finally decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial judge.... [M]ost objections will prove to be dependent on trial context and will be determined to be waived if not renewed at trial.\" United States v. McVeigh, 153 F.3d 1166, 1200 (10th Cir.1998) (quoting United States v. Mejia-Alarcon, 995 F.2d at 986-88), cert.",
"denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). As a procedural matter, the movant should identify the particular evidence at issue and articulate with specificity the arguments supporting the position that the particular evidence is inadmissible on any relevant ground. A court is well within its discretion to deny a motion in limine that fails to identify the evidence with particularity or to present arguments with specificity. National Union v. L.E.",
"Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996). HOPKINS' MOTION TO EXCLUDE EVIDENCE OF PRIOR CRIMES (Dk.1215) Arguing Rules 403 and 404 of the Federal Rules of Evidence, Hopkins seeks to bar the government from referring to or introducing evidence of his prior conviction for \"domestic/kidnapping unlawful restraint\" and of his prior drug use. Hopkins states his intention to introduce character evidence. The government opposes the motion saying it is premature as this evidence may be admissible on several grounds depending on what occurs during trial. The government gives several examples in support of its position.",
"The government further argues that the defendant's prior drug use is plainly relevant to the drug conspiracy charge and admissible under Rule 404(b) as evidence of the defendant's plan, motive, and intent. Concerning the defendant's prior conviction, the court denies the motion as premature but directs the government not to reference or mention, directly or indirectly, before the jury panel or jury or introduce any evidence with respect to this conviction without first approaching the bench and having the issue of its use or admissibility decided by the court. As for evidence of the defendant's prior drug use, the court denies the motion on its merits and for its failure to identify with particularity the evidence at issue. HOPKINS' MOTION TO BAR THE GOVERNMENT FROM VOUCHING (Dk.1218) Hopkins asks for an order barring the government from bringing out the fact and/or emphasizing that a grand jury returned an indictment against him. The government opposes the motion as too broad in rejecting the proper use of an *1293 indictment at trial and as too vague in not specifying what the defendant believes to be improper vouching by the government. The government further represents it will not offer any evidence or argument about the indictment that is contrary to court's standard instruction that an indictment is a mere charge and is not evidence.",
"Because the government does not intend to make any use of the indictment that is contrary to the jury instructions,[1] the court denies the motion as moot. As far as any other possible vouching conduct by the government, the defendant's arguments are too vague and speculative for the court to decide. CLINE'S MOTION TO EXCLUDE EXPERT TESTIMONY ON FINGERPRINT IDENTIFICATION (Dk.1222) The defendant Cline seeks an order prohibiting the government from introducing expert testimony or expert reports that the latent print obtained from government's exhibit N-46 matches one of Timothy Cline's rolled fingerprints from a fingerprint card. Citing the recent decision of United States v. Llera Plaza, 179 F.Supp.2d 492 (E.D.Pa.2002), the defendant argues such expert testimony fails the standards articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct.",
"1167, 143 L.Ed.2d 238 (1999), and recently amended Fed.R.Evid. 702, in that fingerprint identification analysis has not been tested scientifically, it has not been subjected to peer review and publication, it has a practitioner error rate that is unknown, it is a subjective determination without any minimum point standards for identification, and there are no uniform qualification standards for fingerprint examiners. The government counters that the Llera Plaza decision represents a minority viewpoint with all other courts finding fingerprint identification testimony to be reliable and admissible. The issue is one of reliability. The gatekeeping function established in Daubert is \"to ensure the reliability and relevancy of expert testimony\" and \"to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.\"",
"Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Some of the factors relevant to this determination identified in Daubert and Kumho include: (1) whether the theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a high known or potential rate of error; (4) whether its operation is subject to controlling standards; and (5) whether it enjoys general acceptance within a relevant scientific or expert community. 526 U.S. at 149-50, 119 S.Ct. 1167. Because \"there are many kinds of experts and many different kinds of expertise,\" these factors are not exhaustive, exclusive or definitive. 526 U.S. at 150-51, 119 S.Ct.",
"1167. These factors \"may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.\" 526 U.S. at 150, 119 S.Ct. 1167. Research shows Llera Plaza stands alone in rejecting fingerprint identification opinions on the standards established in Daubert, Kumho, and Fed.R.Evid. 702. *1294 The district court itself recognized that other courts addressing this issue have upheld admissibility even after the Daubert decision and the more recent amendment of Fed.R.Evid.",
"702. Llera Plaza, 179 F.Supp.2d at 500-501. While certainly exhaustive and informed, the analysis of the Daubert factors used in Llera Plaza does not persuade this court to depart from the well-traveled path. The decision should be applauded to the extent that it encourages empirical testing of the process within more traditional \"scientific\" parameters, leads to additional submissions to the relevant body of peer review literature, and possibly fosters the development of uniform standards followed and accepted by all qualified fingerprint examiners. It is the humble opinion of this court, however, that the decision in Llera Plaza overreaches in concluding that the current fingerprint identification analysis so utterly fails the so-called \"scientific\" criteria in Daubert as to render all fingerprint examiners' \"subjective\" evaluations or identifications unreliable and inadmissible under Rule 702. This court remains satisfied that general fingerprint identification analysis clears the threshold of reliability under Rule 702 after considering all relevant factors, including those from Daubert, and that the shortcomings argued against this analysis are more prudently treated as matters going to the weight of the evidence.",
"[2] Rather than repeating or attempting to restate what other courts have said in their evaluation of the Daubert factors for fingerprint identification, the court simply adopts what has been said in the following decisions. United States v. Havvard, 117 F.Supp.2d 848, 853-855 (S.D.Ind. 2000), aff'd, 260 F.3d 597, 599-601 (7th Cir.2001); see United States v. Rogers, 26 Fed.Appx. 171, 2001 WL 1635494, at *1-*2 (4th Cir. Dec. 20, 2001) (Table); United States v. Reaux, 2001 WL 883221, at *1-*2 (E.D.La. Jul.31, 2001); United States v. Joseph, 2001 WL 515213 (E.D.La. May 14, 2001); United States v. Martinez-Cintron, 136 F.Supp.2d 17, 18-20 (D.Puerto Rico 2001).",
"In these same decisions, the courts also recognized that evidentiary Daubert hearings were unnecessary as the reliability of the methods could be properly taken for granted. See, e.g., United States v. Reaux, 2001 WL at *1-2; United States v. Sherwood, 98 F.3d 402, 408 (9th Cir.1996). The court likewise holds that a Daubert hearing is unnecessary as the defendant is lodging only a general attack on fingerprint identification testimony and methodology. Before leaving this subject, the court feels compelled to make a couple of observations on this emerging issue. Used successfully in criminal trials for over 100 years, fingerprint identification analysis has withstood the scrutiny and testing of the adversarial process. United States v. Havvard, 260 F.3d at 601. [3] Those of a \"scientific\" bent certainly can take issue with whether the judges and lawyers have the education or training to engage in \"scientific\" testing and with whether the courtrooms provide the sterile, laboratory-like and objective atmosphere associated with and probably conducive to scientific analysis.",
"Even so, it seems an unreasonable stretch simply to discard this experiential testing as wholly *1295 unreliable and to relegate the testifying opinions of all these fingerprint examiners to ipse dixit. [4] Moreover, this court joins others who do not read Daubert and Kumho as elevating the scientific method to the touchstone by which all Rule 702 evidence is to be judged.",
"See, e.g., United States v. Havvard, 260 F.3d at 600 (\"[T]he idea that fingerprint comparison is not sufficiently `scientific' cannot be the basis for exclusion under Daubert.\"). The Supreme Court itself eschewed such a reading when it dismissed the argument that the trial court's gatekeeping obligation depended on whether the expert knowledge to be offered was scientific, technical or other: Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called \"general truths derived from ... specialized experience.\" (citation omitted). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest \"upon an experience confessedly foreign in kind to [the jury's] own.\" (citation omitted). The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge. * * * * * * Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. (citation omitted).",
"In other cases, the relevant reliability concerns may focus upon personal knowledge or experience. As the Solicitor General points out, there are many different kinds of experts, and many different kinds of expertise. See Brief for United States as Amicus Curiae 18-19, and n. 5 (citing cases involving experts in drug terms, handwriting analysis, criminal modus operandi, land valuation, agricultural practices, railroad procedures, attorney's fee valuation, and others). Our emphasis on the word \"may\" thus reflects Daubert's description of the Rule 702 inquiry as \"a flexible one.\" 509 U.S. at 594, 113 S.Ct.",
"2786. 526 U.S. at 148-50, 119 S.Ct. 1167. (citation omitted). Indeed, the trial court's \"focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.\" Daubert, 509 U.S. at 595, 113 S.Ct. 2786. [5] The court's reading of the case law and literature on this issue leads it to believe that the real rub is with the conclusiveness in which fingerprint examiners express their opinions and with which the opinions may have been generally received by the courts and juries. Such a dispute, however, does not justify being \"overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the *1296 traditional and appropriate means of attacking shaky but admissible evidence.\"",
"Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The court overrules the defendant's motion in limine. CLINE'S MOTION TO EXCLUDE EVIDENCE THAT ASSISTANT UNITED STATES ATTORNEY ANTHONY MATTIVI PARTICIPATED IN THE EXECUTION OF THE SEARCH WARRANT ON CLINE'S RESIDENCE AND IN THE INTERVIEW OF CLINE FOLLOWING HIS ARREST (Dk.1224) The defendant Cline does not seek the disqualification of Assistant United States Attorney (\"AUSA\") Mattivi but does want to keep out any evidence that AUSA Mattivi personally participated in these events, to redact any such reference to him in the documents to be offered at trial, and to instruct the government's witnesses not to mention Mattivi's presence at these events. The government responds that AUSA Mattivi participated in the interview of Cline but did not participate in the execution of the search warrant at Cline's residence.",
"The government represents that it will not mention Mattivi's presence at the interview and has no documents to be introduced at trial which mention Mattivi's presence at either event. Other than directing the government to instruct its witnesses to not mention AUSA Mattivi's presence or participation in these events, the court denies the defendant's motion as moot in light of the government's representation. CLINE'S MOTION TO EXCLUDE IRRELEVANT AND PREJUDICIAL EVIDENCE (Dk.1226) The defendant Cline seeks an order prohibiting the prosecution from referring to, mentioning, suggesting, introducing evidence or attempting to introduce into evidence, or stating before the jury for any purpose the following eleven paragraphs of possible matters.",
"Considering the government's response[6] and the parties' different arguments, the court rules as follows. 1. Any and all evidence related to the 1994 IRS/DEA search warrants at Romantic Delights and the Cline residence. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 2. Any and all evidence related to the seizure in May 1995 of $12,050 cash from Mr. Cline and $10,130 from Rob Crance at the Ontario, California, airport. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 3. Any and all evidence related to David Milton Hammons' claim that he sold 100 pounds of methamphetamine to Mr. Cline through Harlan Sartin during 1996.",
"This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 4. Any alleged connection between the Hell's Angels and Biker's Dream mentioned by Hammons that anyone who owned a Biker's Dream franchise would have to be affiliated in some way with the Hell's Angels. This request is *1297 denied as moot, because the government does not intend to offer any such evidence in its case in chief.",
"Nor shall the government otherwise refer to or mention this evidence before the jury without first approaching the bench. 5. Any and all evidence regarding Anthony Fracasso's and/or Kent Groves' prior alleged drug transactions with Mr. Cline. Besides the typical concerns addressed by Rules 403 and 404(b), the defendant argues these uncharged acts carry the additional prejudice of confusing, delay-causing mini-trials. The government represents that both Mr. Fracasso and Mr. Groves will be witnesses testifying to the defendant's involvement in the manufacture and distribution of methamphetamine and to the defendant's use of Johnny Shane Wright as the \"cook\" replacing Mr. Fracasso. The government intends to offer this evidence pursuant to Rule 404(b) to show the defendant's plan, motive, intent and absence of mistake.",
"The court overrules the defendant's in limine request, as the government's response gives the court sufficient reason to believe that this evidence (1) will be offered for a proper Rule 404(b) purposes,[7] (2) will be relevant under Rule 401,[8] and (3) will have probative value that is not substantially outweighed by its potential for unfair prejudice[9] under Rule 403. The court will hear the defendant as to the timing and substance of an appropriate limiting instruction. 6. Any and all evidence surrounding law enforcement's seizure of approximately $34,000 in cash from a motorcycle registered to John Keaney which was being transported in the back of a pickup truck driven by Rudolp Maio. The defendant argues that the evidence of the odor of marijuana and/or marijuana residue near the cash is completely irrelevant to the charged methamphetamine conspiracy. The government points out the conspiracy in count one charges the distribution of \"controlled substances,\" not just methamphetamine. The government argues that it will be able to tie directly this seizure of $34,000 to the charged conspiracy. Based on what the court has learned about this seizure during the suppression hearing and on what the government presently contends, the court has reason to believe the government will be able to show the relevance of this evidence. This request is overruled. 7.",
"Any reference to this case or the underlying investigation as \"Operation Renegade.\" The defendant comes forth with no sound objection to the government referring to its criminal investigation by its *1298 given name. The court overrules this request. 8. Any and all evidence regarding Tim and Janet Cline's pending divorce, Mr. Cline's present girlfriend, the fire at the Cline residence, and the financial difficulties of Mr. Cline's business. This request is denied as moot, because the government does not intend to offer any such evidence in its case in chief. Nor shall the government otherwise refer to or mention this evidence before the jury panel or jury without first approaching the bench. 9.",
"Any and all evidence regarding the death of Bobby Gaskill, who died of an asthma-induced heart attack and/or overdose after consuming methamphetamine allegedly provided by co-defendant Michael Hopkins. The defendant argues this evidence is not relevant as neither he nor any of the defendants remaining for trial are alleged to have been involved in this death. The defendant also contends the evidence is unfairly prejudicial in that it would frighten the jury. Though believing there is credible evidence linking Gaskill's death to the methamphetamine manufactured and distributed by the conspiracy charged in count one, the government does not know whether it will offer this evidence in its case in chief. The court takes this request under advisement. The government shall approach the bench before it or any of its witnesses directly or indirectly make any mention of or reference to Gaskill's death in front of the jury panel or jury or before it offers any evidence of the same.",
"10. Any and all \"outlaw motorcycle gang\" evidence, including, but not limited to, any reference to the Loners being an \"outlaw motorcycle gang\" and that Mr. Cline is a member of the Loners. The defendant complains this evidence is an effort to prove guilt by association. With the possible exception of co-defendant John Cervine, the defendant argues there is no evidence that any of the other co-conspirators are members of the Loners or that any sales of controlled substances were made to Loners members. The defendant also insists that the government is unable to tie Cervine's possession of drugs to his membership or the defendant's membership in the Loners. The government responds that it will offer evidence of the Loners Motorcycle Gang to prove and explain relationships between co-conspirators and witnesses. Denying that this evidence will be offered to prove criminal \"propensity,\" the government maintains the gang membership will be \"direct evidence of the formation, purpose, and activities of the conspiracy, as well as the defendant's and his co-conspirators' knowledge.\" (Dk. 1246, at p. 8). The government represents that it will not refer to the Loners Motorcycle Gang as an \"outlaw\" gang.",
"The court overrules the motion, as the government offers proper purposes for introducing evidence of the membership of the defendant, co-conspirators and witnesses in the Loners Motorcycle Gang. The court would entertain giving a limiting instruction on the jury's use and consideration of this evidence in the event that the defendant would propose one. 11. Any and all racially inappropriate comments contained in the wiretap tapes. The defendant points to an ambiguous reference to \"white boy\" made by Janet Cline in a wiretap tape, as a comment that may be offensive to African Americans on the jury. The government denies that this statement on its face qualifies as a racially inappropriate comment. The court overrules this objection, as the cited comment is ambiguous and does not appear to be so racially offensive as to have the potential for creating unfair prejudice against the defendant. *1299 CLINE'S MOTION TO EXCLUDE EXPERT TESTIMONY REGARDING THE INTERPRETATION OF THE ENGLISH LANGUAGE (Dk.1228) Noting the contents of search warrant affidavits given by the Drug Enforcement Administration (\"DEA\") special agents in this case, the defendant seeks to preclude the government from presenting expert witness testimony regarding the meaning of certain words used in telephone conversations intercepted by wiretaps. The defendant argues this evidence fails the Daubert standards and alternatively requests a Daubert hearing concerning the reliability and relevance of any such testimony. The government responds that it does not intend to offer such expert testimony in this case and that it will rely on testifying co-conspirators to explain the meaning of certain words.",
"There being no expert witnesses or Daubert issues on the meaning of certain words used in wiretapped telephone conversations, the court denies the motion as moot. CLINE'S MOTION TO PROHIBIT THE PRESENTATION OF TESTIMONY BY \"OVERVIEW WITNESS\" (Dk.1230) The defendant moves the court for an order prohibiting the government from presenting the testimony of an \"overview witness\" at the beginning of the government's case in chief. The defendant characterizes this situation as the government calling a \"summary witness\" who will testify before there is any evidence admitted to summarize and who will give essentially a second opening statement of the government's anticipated evidence.",
"The government refutes this characterization saying the \"overview witnesses\" will be fact witnesses \"who will establish, among other things, the conspiracy and the defendants' roles in that conspiracy for purposes of introducing co-conspirator statements under Fed.R.Evid. 801(d)(2)(E).\" (Dk.1243). The court overrules the defendant's motion as speculative, premature, and vague. The defendant's objections to this testimony are best presented and decided during trial. GOVERNMENT'S MOTION TO ALLOW TWO CASE AGENTS TO BE EXCUSED FROM SEQUESTRATION UNDER FED. R. EVID. 615 (Dk.1245) The government requests an order allowing it to have both DEA Special Agent Robert Ryan and KBI Special Agent James Timothy Botts be present together or individually at the government's table during trial.",
"In its prior order, the court granted the government's request to have two case agents present during trial and assumed the agents would be Special Agent Ryan and Special Agent John Aldine. (Dk.1238, p. 12). With the government's clarification of the agents wanted at its table, Ryan and Botts, the court grants the government's motion. CLINE'S MOTION TO PROHIBIT THE GOVERNMENT'S USE OF ITS PRESENTATION SOFTWARE TO PUBLISH THE WIRETAP AND UNDERCOVER RECORDINGS AT TRIAL (Dk.1256) The defendant seeks to bar the government from using its presentation software in publishing the wiretap and undercover recordings to the jury. The defendant questions the adequacy of a record on appeal should this equipment be used. The defendant complains that the presentation would require the jury to focus on the same location to receive the sound and to see the transcript.",
"The defendant objects that the presentation displays photographs of the purported speakers and alternatively highlights the supposed speaker's photograph. The defendant objects to the excessive time it would take for his counsel to verify the accuracy of the government's photographic *1300 designation of the different speakers for the entire duration of the approximately fifty tapes to be presented by the government. Finally, the defendant objects to the obvious mug shot the government is using for his photograph. The government counters that the software program is not part of the evidence but only a demonstrative aid and that the tapes are the evidence and their substance are not altered by the software program. The government points out that the sound and transcripts do not have the same source, as the sound comes from the courtroom's sound system and the transcripts are displayed on the individual monitors in the jury box. Just like paper copies of the transcript, jurors will have the choice of only listening to the recording or also following along with the transcript.",
"As far as the accuracy of the photographic displays, the government insists it is no different from the written transcripts to which the defendant has had access for some time. The government concedes the picture of Cline being used is a mug shot and offers the defendant the chance to submit another picture or to have the government take a different photograph of him. In light of the government's response to the different objections, the court denies the defendant's motion. There appears to be no issue as to the record on appeal, as the government intends to offer the tapes into evidence. Should there be some need to include all or a part of the transcripts in the record, the government appears ready to provide a paper copy of the same.",
"The photographic display of the purported speakers is not any more prejudicial to the defendant than the names of the speakers appearing on the written transcript. Finally, the court will permit the defendant to submit an alternative photograph of himself or make himself available for the government to take another photograph. If the defendant does not cooperate in this regards, the government will be permitted to use the defendant's mug shot. If the parties cannot agree on an alternative photograph, they should alert the court promptly.",
"CLINE'S MOTION TO PROHIBIT THE GOVERNMENT FROM OFFERING OR DISPLAYING THE FIREARMS SEIZED FROM CLINE'S RESIDENCE ON MARCH 27, 2000, (DK.1258) The defendant argues that sixteen firearms allegedly seized from his residence during the execution of a search warrant on his home do not form the basis for any charges in this case. The defendant insists that the firearms are not relevant to the charged counts and, alternatively, that the danger of unfair prejudice to him substantially outweighs any minimal probative value which the firearms may arguable have to this case. The defendant believes the government wants to introduce this firearm evidence in an effort to paint him as a \"dangerous\" man and to frighten the jury into convicting him on this improper basis.",
"The government discourages the court from making a pretrial ruling as the relevance of this evidence will depend largely on the factual context coming out at trial. The government asks the court to defer its ruling until trial and to consider the following arguments at that time. Firearms are tools of the trade for those engaged in drug trafficking activities. The evidence of firearms will be used to show the defendant's involvement in the charged conspiracy, the defendant's use of typical tools of the drug trade, and a location for the conspiracy's operations. The firearms also will bolster the other evidence found on the Oklahoma property that connects it to the drug conspiracy. The court denies the motion in limine and defers ruling on the admissibility of *1301 this firearm evidence until it is offered at trial.",
"A Rule 403 objection to firearm evidence introduced in a drug trafficking case is not new to this circuit: In the context of drug distribution offenses, firearms are viewed as \"`tools of the trade' that is, means for the distribution of illegal drugs.\" United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir.1991). As such, they are probative of a defendant's participation in the drug distribution business and in the particular charged distribution offenses, and it is immaterial that Mr. Bailey was not being tried for any offense directly related to his possession of firearms. See id. Indeed, several witnesses testified that Mr. Bailey carried a firearm during drug transactions. Finally, while the evidence was unfavorable, it was by no means so unfairly prejudicial as to \"be misleading and not aid and assist the jury in making a material determination of the case.\" [United States v.] Flanagan, 34 F.3d [949], 953 [(10th Cir.1994)] (quotation omitted).",
"United States v. Baker, 166 F.3d 348, 1998 WL 808392, at *5 (10th Cir. Nov. 20, 1998); United States v. Burnett, 141 F.3d 1186, 1998 WL 104718, at *3-*4 (10th Cir.1998) (\"evidence of firearms is sufficiently probative to warrant admission under Rule 403 to show that a defendant is involved in drug distribution.\" That a defendant is charged \"only with drug possession and conspiracy charges does not render firearm evidence irrelevant or inadmissible.\"",
"(citations omitted)); United States v. Mendoza-Salgado, 964 F.2d 993, 1007 (10th Cir.1992) (\"Admitting evidence of drugs or weapons to support the government's theory of a drug conspiracy is generally not improper.\" (citations omitted)); United States v. Martinez, 938 F.2d 1078, 1084 (10th Cir.1991) (\"Violence is not an uncommon feature of the drug trade and weapons are often viewed as necessary tools to facilitate it.\"). Guided by these decisions, the court will balance the Rule 403 concerns at trial upon hearing the factual context for this firearm evidence being offered, e.g., the number, location and nature of the firearms being offered, the proximity of the guns to any of the seized controlled substances or large sums of cash, the amount of controlled substances seized from the residence, and the evidence showing the nature, scope and mode of operation for the charged conspiracy and how the residence was used to facilitate the drug conspiracy. The court denies the defendant's request for an in limine ruling on the admissibility of the firearms.",
"CLINE'S MOTION TO PROHIBIT MENTION OR EVIDENCE OF NON-TESTIFYING CO-DEFENDANTS' GUILTY PLEAS (Dk.1260) The court denies this motion as moot based on the government's representation that it does not intend to offer evidence of non-testifying co-defendants' guilty pleas. The court further directs the government not to reference or otherwise mention these guilty pleas for any purpose in the presence of the jury panel or jury. GOVERNMENT'S MOTION TO DISMISS VARIOUS CHARGES AND TO SEQUENTIALLY RENUMBER THE REMAINING COUNTS AND PROPOSED SUMMARY OF INDICTMENT (Dk.1265) The defendants have filed no objections to the dismissal of various charges and to the renumbering of the remaining counts.",
"The court grants the motion as uncontested and as in the best interest of the parties, the court and the public. The defendant Cline objects to the government's summary of the indictment for its repeated use of \"illegal\" and for its erroneous description of count six as charging \"distribution\" rather than \"possession.\" *1302 Using \"illegal\" in lieu of saying \"in violation of\" a specific statute is appropriate, if not necessary.",
"The number of times that \"illegal\" appears in the summary is not prejudicial to the defendant. The court overrules the defendant's objection to the repeated use of \"illegal\" but sustains the defendant's objection to the summary of count six and changes \"distributed\" to \"possessed.\" IT IS THEREFORE ORDERED that Charles William Hopkins' motion to exclude evidence of prior crimes (Dk.1215) is denied as to evidence of the defendant's prior drug use and is denied as to evidence of the defendant's prior conviction but the government shall not reference or mention, directly or indirectly, before the jury panel or jury or introduce any evidence with respect to this conviction without first approaching the bench; IT IS FURTHER ORDERED that Hopkins' motion to bar the government from vouching (Dk.1218) is denied as moot and speculative; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude expert opinion testimony on fingerprint identification (Dk.1222) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude evidence that Assistant United States Attorney Anthony Mattivi participated in the execution of the search warrant on Cline's residence and in the interview of Cline following his arrest (Dk.1224) is denied as moot; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude irrelevant and prejudicial evidence (Dk.1226) is denied as moot as to 1, 2, 3, 4 and 8; is denied as to 5, 6, 7, 10 and 11; and is taken under advisement as to 9; IT IS FURTHER ORDERED that Timothy Cline's motion to exclude expert testimony regarding the interpretation of the English language (Dk.1228) is denied as moot; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the presentation of testimony by \"overview witness\" (Dk.1230) is denied as speculative, premature and vague; IT IS FURTHER ORDERED that the government's motion to allow two case agents to be excused from sequestration under Fed.R.Evid.",
"615 (Dk.1245) is granted; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the government's use of its presentation software to publish the wiretap and undercover recordings at trial (Dk.1256) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit the government from offering or displaying the firearms seized from Cline's residence on March 27, 2000, (Dk.1258) is denied; IT IS FURTHER ORDERED that Timothy Cline's motion to prohibit mention or evidence of non-testifying co-defendants' guilty pleas (Dk.1260) is denied as moot; IT IS FURTHER ORDERED that the government's motion to dismiss various charges and to sequentially renumber the remaining counts and proposed summary of indictment (Dk.1265) is granted. NOTES [1] The court intends to instruct the jury as follows: \"An indictment is only a method of accusing a defendant of a crime.",
"It is not evidence of any kind against a defendant and does not create any presumption or permit any inference of guilt. It is a mere charge or accusation nothing more and nothing less.\" [2] Of course, the court's conclusions speak only to the subject in general and do not address the reliability or relevance of the expert opinions to be offered here. Neither side has devoted any of its discussion to the particular fingerprint identification opinions in this case. [3] The Tenth Circuit, in contrasting hair analysis, grouped fingerprint identification with DNA analysis as being \"conclusive.\" Williamson v. Ward, 110 F.3d 1508, 1520 n. 13 (10th Cir.1997). [4] General acceptance remains a relevant consideration under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).",
"United States v. Havvard, 260 F.3d 597, 600 (7th Cir.2001). [5] In saying the \"focus\" should be on theory and methodology, not conclusions, the Court necessarily recognizes that it is for the jury to decide the relevance and reliability of a particular application of the theory and methodology found reliable by the trial court. Thus, when a trial court finds the theory reliable that fingerprints are unique and permanent and ascertains that there is an established and accepted methodology for matching fingerprints, its gatekeeping role has been served and now the jury must determine whether the expert witness has properly applied this theory and methodology to the case. [6] As to five of the paragraphs, the government states it has no intention of introducing such evidence but reserves its right to introduce the same should the defendant make the evidence relevant. [7] The Tenth Circuit \"has repeatedly held that the use of prior drug involvement to show plan, motive or intent in a drug trafficking offense is appropriate.\"",
"United States v. Ramirez, 63 F.3d 937, 943 (10th Cir.1995) (citations omitted). [8] Evidence of prior drug involvement is relevant when it relates to a matter that is at issue in the case. United States v. Hardwell, 80 F.3d 1471, 1489 (10th Cir.1996). The relevance of prior narcotics involvement is evaluated by whether it is close in time and similar to the charged crime. United States v. Conway, 73 F.3d 975, 981 (10th Cir.1995). Under the relevance prong, the court also must decide whether from the evidence \"the jury could reasonably find\" that the defendant committed or participated in the prior narcotics violations \"by a preponderance of the evidence.\"",
"See Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). [9] Evidence of prior bad acts that went uncharged can be \"highly probative in showing motive, intent, knowledge or plan in the context of a conspiracy prosecution.\" United States v. Edwards, 69 F.3d 419, 436 (10th Cir.1995) (quotation omitted). \"This is particularly true where the uncharged acts are similar in method to the charged conspiracy and sufficiently close in time.\" Id."
]
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Protest abandoned November 30, 1961. (Not published.) Plaintiffs’ application for rehearing granted. | 09-09-2022 | [
"Protest abandoned November 30, 1961. (Not published.) Plaintiffs’ application for rehearing granted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8110897/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MEMORANDUM *** Because the certified DMV records “fortifie[d], augment[ed], or supported]” Aguilar-Chavez’s post-arrest admission that he was not the owner of the truck, the corpus delicti rule was satisfied. See United States v. Corona-Garcia, 210 F.3d 973, 979 (9th Cir.2000). Aguilar-Chavez’s post-arrest admission that he was not the owner of the truck, coupled with the DMV records, was sufficient to support the jury’s determination that Aguilar-Chavez’s earlier statement to Agent Nielsen-that he was the owner of the truck-was false. See United States v. Lopez-Alvarez, 970 F.2d 583, 589 (9th Cir.1992). AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. | 07-24-2022 | [
"MEMORANDUM *** Because the certified DMV records “fortifie[d], augment[ed], or supported]” Aguilar-Chavez’s post-arrest admission that he was not the owner of the truck, the corpus delicti rule was satisfied. See United States v. Corona-Garcia, 210 F.3d 973, 979 (9th Cir.2000). Aguilar-Chavez’s post-arrest admission that he was not the owner of the truck, coupled with the DMV records, was sufficient to support the jury’s determination that Aguilar-Chavez’s earlier statement to Agent Nielsen-that he was the owner of the truck-was false. See United States v. Lopez-Alvarez, 970 F.2d 583, 589 (9th Cir.1992). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3."
]
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Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 1of8
EXHIBIT 6 Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 2 of 8
AMENDMENT NO. 4 TO THE GENERAL TERMS AGREEMENT BETWEEN PANASONIC AVIONICS CORPORATION AND WCA HOLDINGS HY, LLC
This Amendment No, 4 (“AMENDMENT”), dated as of the 6 day of April, 2017, is made and entered into by and between WCA HOLDINGS II, LLC, a Montana corporation (“Buyer”), and PANASONIC AVIONICS CORPORATION, 4 Delaware corporation (“Panasonic”),
RECITALS:
WHEREAS, Buyer is the owner or that.certain 737-73Q: airciaft, serial number 30329, bearing United States Registration No, N162WC (the “ Aircraft”),
WHEREAS, Buyer and Panasonic are parties to that certain General Terms Agreement dated June 29, 2010 (the “Agreement”), pursuant to which, among other things, Panasonic agreed to install in the Aircraft a new cabin management system / in-flight entertainment system (the “eX1 Systenv’).
WHEREAS, Panasonic completed the installation of the eX1 System in the Aircraft on or about May 19,2013,
WHEREAS, the eX1 System was installed in the Aircraft with a Broadband Controller (BC) RD ~NB2500-01 commercial satellite modem (the “Original Broadband Controllér”y, and Buyer and Panasonic desire to replace the Original Modem with a Newtec MDM5000 commercial satellite modem and the other items set forth in Schedule A hereto (the-“New Broadband Controller”).
WHEREAS, replacement of the Original Broadband Controller with the New Broadband Controller will require that the tests set forth on Schedule B hereto (each, a “Flight Test” and collectively, the “Flight. Tests”) be-condutted using the Aircraft in order for Panasonic to obtain FAA certification to use the New Broadband Controller in the eX1 System in the Aircraft and other aircraft similar to the Airoralt.
WHEREAS, Panasonic has requested that Buyer conduct the Test Flights for Panasonic, which Buyer has agreed to do subject:to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties hereby agree as follows:
1. AFRIRMATION OF RECITALS. The parties hereto affirm and acknowledge that. all facts set forth in the Recitals of this Amendment are true and correct.
2. DEFINITIONS. All capitalized terms used in this Amendment.and not otherwise defined herein have the meanings specified in the Agreement.
3. BROADBAND EQUIPMENT. Panasonic shall install the New Broadband Controller in the Aircraft at‘no cost-to Buyer on. ot prior to Flight Test. No. 5 set forth on Schedule B hereto. The New Broadband Controller shall be covered by the ‘warranty provided in Section 6 of the. Agreeinent.. It is the intention of the. Buyer and Panasonic that the costs of the New Broadband Controller shall be exchanged for the Flight Tests as described in Section 4 and the Compensation as described in Section 4.4,
-4829-0589-9842¥.2 0058 174-O00004 1 (2.
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 3 of 8
3.1 Equipment Upgrades. Panasonic shall also install in the Aircraft in September 2017 (or
such other month as the parties: may agree) any and all upgrades to the eX System then available, including touch screens, Blu-ray players, audio speakers, LCD cabin monitors, cabin handsets, system remote. controls and related software. All such upgrades to the eX1
System shall be covered by the warranty provided in Section 6 of the Agreement, :as.
amended by this Amendment. It is the intention of the Buyer and Panasonic that the costs
of all such upgrades shall be exchanged for Denionstration Flights as described in
Amendment 3, Section 5.4.
4. FLIGHT TESTS. Subject to the terms and coriditions of this Amendment, Buyer agrees to provide the Aircraft for the Flight Tests.
41 Scheduling. Buyer shall bave final authority and discretion over all scheduling of the Aircraft, and Buyer shall not, at any time, be under any obligation to provide the Aircraft to Panasonic for a patticular Flight Test on a particular day.
4.2 Operational Control. Buyer shall be responsible for the physical and technical operation of the-Aircraft and the safe performance of all Flight Tests, and shall retain full authority and control, including exclusive operational control, and possession of the Aircraft at all times at during all Flight Tests. In accordance with applicable FAA regulations, the qualified flight crew provided by Buyer will exercise all required and/or appropriate duties and responsibilities in regard to the safety of each flight conducted hereunder. The pilot- in-command shall have. absolute discretion in all matters concerning the preparation of the Aircraft for each Flight Test and the Flight Test itself, the load carried and its distribution, the decision whether or not.a Flight Test shall be undertaken, the route to be flown, the place where landings shall-be made, and all other matters relating to operation of the Aircraft, Panasonic specifically agrees that the flight crew shall have final and complete authority to delay or cancel any flight for any reason or condition which in the sole judgment of the pilot-in-command. could compromise the safety of the flight, and to take any other action which in the sole judgment of the pilot-in-command is tiecessitated by considerations of safety, No such action of the pilot-in-command shall create or support any liability to Panasonic or any other person for loss, injury, damage or delay. The parties further agree that Buyer shall not be liable for delay or failure to furnish any Aircraft or any crew pursuant to this Amendment for any reason or no reason including, without limitation, citctimstances when such failure is caused by government regulation or authority, mechanical difficulty or breakdown, war, civil commotion, strikes or labor disputes, weather conditions, acts of God, or other circumstances within or beyond Buyer’s reasonable control.
43 Observation. For any Flight Test, the Buyer or the Buyer’s designee shall have the right to have up to two (2) observers essential to the flight on board the Aircraft to observe the operation of the New Broadband Controller and the eX1 System.
44 Compensation.. To compensate Buyer for the Flight Tests and any flights requested by Panasonic to move the airplane from. its current location to another location for purposes of the Flight Tests (“ Repositioning Flights”). required to conduct. such Test Flights, Panasonic shall:pay to Buyer an amount equal to the sum of (a) the lesser of (i) $8,000.00 for each flight hour (or fraction thereof) elapsed during such flights or (ii) the maximum amount permitted to be paid to Buyer under applicable FAA regulations to. comply with Part 91 requirements plus (b) $16,000.00 for each day (or fraction thereof) that the Aircraft is unavailable for use by Buyer as a result of conducting the Flight Tests or Repositioning
“4829-0589-9842v.2 0058174-000001 [
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 4 of 8
Flights and including each day (or fraction thereof) that the Aircraft has a special airworthiness certificate in the experimental category.
4.5 Special Airworthiness Certificates. Panasonic shall be fully responsible for, including payment of all costs, all regulatory and other filings necessary to obtain for the Aircraft (1) a special airworthiness certificate in the experimental category to permit Buyer to operate the Aircraft during the Flight Tests.and (2) a standard airworthiness certificate upon the completion of the Flight Tests. Panasonic hereby represents that when obtaining the special airworthiness certificate, it has fully advised the Federal Aviation Administration of all flight operations, crew, on-boatd observers and techniciaris related to its conduct of the flight tests. Panasonic hereby represents that all test flights (and all demonstration flights under section 5.4 of Amendment No. 3) will comply with all Federal Aviation Regulations, including without limitation 14 C-E.R. § 91.319.
4.6 Indemnification. Notwithstanding anything to the contrary in the Agreement (or any of its Amendments), Panasonic agrees to indemnify, hold harmless and defend Buyer and its employees from and against any claims, causes of actions and/or damage arising from any and all claims by the Federal Aviation Administration and/or Department of Transportation, that the operations conducted under this Agreement and all Amendments violate Federal Aviation Regulations, U.S. Statutes or other governmental authority. Panasonic shall assume the defense of such claim by counsel retained at Panasonic’s own expense and shall pay any damages assessed against or otherwise payable by Buyer as a. result of the final disposition of such claim. Sections 5.3 and 9 of the Agreement shall not apply to this Section 4.6.
5. EXTENSION OF TERM. Panasonic and Buyer each agree. to amend Section 13.1 of the. Agreement to delete the phrase “not to exceed two (2) renewal periods” and to substitute the plirase “not to exceed three (3) renewal periods.” Panasonic and Buyer each apree that the term of the Agreement shall be extended through December 31, 2017.
6. WARRANTY, Panasonic and Buyer each agree that the term “Products” shall include the New Broadband Controller and any Equipment Upgrades referenced in Section 3.1. Without limiting Section 6 of the Agreement and notwithstanding the expiration, termination or cancellation of the Agreement, Panasonic represents to Buyer that the New Broadband Controller and any Equipment Upgrades shall be free from defects in material and workmanship for a period commencing on the date of the installation (the “Installation Date’) and ending on the later to accur of (a) the date-that is sixty (60) months after the Installation Date or (b) the date that ownership of the Aircraft is transferred to an entity that is not controlled by or is under common contro! with Buyer.
7. GENERAL PROVISIONS
71 Assignment. Neither party may assign this Amendment except as provided in Section 14.3 of the Agreement.
‘7.2 Notices. Any notice, request, consent, demand or other communication given or required to. be given under this Aniendment shall be effective only ifin writing and shall be deemed to have been given as provided in Section 14.5 of the Agreement,
73 Governing Law. This Amendment and’performance hereunder, shall be governed by and
construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
4829-0589-9842:2.0058174-000001
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 5of8
74 Entire Agreement.
7.4.1 This Amendment and the Agreement sets. forth the. entire understanding, and. hereby supersedes ariy and all prior agreements, oral or written, heretofore made, between the parties with respect to the subject matter of this Amendment.
7.4.2 No delay on the part of either party in exercising any. of its respective rights hereunder or the failure to exercise the same, nor the acquiescence in or waiver of a breach of any term or condition of this Amendment shall be deemed or construed to operate as a waiver of such rights or acquiescence thereto except in the specific instance for which. given, .
7.4.3 The terms and conditions of this Amendment may not be amended, changed, waived, varied or modified except by an amendment.in writing signed by Duly Authorized Representatives of both parties.
7.4.4 The invalidity: or unenforceability of any tert or condition of this Amendment pursuant to.any applicable law shall not affect the validity or enforceability of the remaining provisions hereof, but this Amendment shall be construed as if not containing the provision held invalid or unenforceable in the jurisdiction in which so held.
74.5 The-section headings used herein do not form a part of this Amendment but are for convenience only and:-shall not limit or be deemed or construed in any way to affect or limit the meaning of the language of the Sections herein contained.
8 EXECUTION. 8.1 Counterparts. This Ametidment.may bé executed in two or more counterparts, each of
which shall be-an original, and all-of which, taken together, shall constitute: one and the same agreement.
8.2 Duly Authorized. Hach party represents and warrants to the other party that the person executing this Amendment on its behalf is its Duly Authorized Representative.
[Remainder of page intentionally left blank, signature page follows]
FOIAC 4829.0589-9842v.2 0058174-000001 ia 37
re hos Biase
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 6 of 8
IN WITNESS WHEREOF, each party has caused this Amendment to be executed on the respective dates entered below.
WCA HOLDINGS DI, LLC PANASONIC AVIONICS CORPORATION By: re ho. fe By: ~ |
Name: Laworence 2 Simkins Name: _ Mark Jennings :
Title: “Presi dent / Morag fe Title: Chief Operating Officer
Date: A, o/Zolt- Date: Aor ih 9 Dit:
4829-0589-9842v.2 0058174-000001
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 7 of 8
Schedule A Parts List Vendor Part Number Quantity . Deseription LCOM . CC-TMTME020 | 2 Coaxial cable, LMR-200, TNC male, 50 Ohm,. length 20 ft. Pasternack | PE6229 2 2 Watt 50 Obi RF Load Up to 6 GHz with TNC Female Input Tri-Metal Plated Brass NewTec MDMS5000 1 Commercial satellite modem
4829-0589-9842y.2 0058£74-000001
Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 8 of 8
Schedule B Flight Test Cases
Test Aireraft Status | Performance
No. | Test’Name Test Date Duration | Description Metric
1, Ground Test Aircraft patked on | Regular Packet:
ground, Remote error rate joins network.
Verify that 2-way
link is:stable.
2 Take-offlink | April 12,2017 | 4hours | Reniote joins Special Packet
test network at least5 | aitworthiness | -erfor rate minutes before certificate in takeoff, and stays the in network during | experimental takeoff to cruising | category altitude
3. 360 degree May 17,2017 | 4-hours | Remote in network. } Special Packet coordinated for at least 5 airworthiness | error rate turn link test minutes before certificate in
beginning of 360° | the Recovery coordinated turns experimental | time if (+30° roll), Remote | category remote
| should stay in drops out of network throughout network. _ entiré maneuver,
4, SPA June-14,2017 | 4hours | Monitor listener Special DSP_POL Polarization. ‘parameter airworthiness | XPOL TX Performance ‘“DSP_POLXPOL._ | certificatein | P2. LF
TX _P2 LF" tosee | the statistics how MxDMA experimental
unpacts SPA’s ‘category
perceived XPOL
isolation
5, Landing link | July12,2017 | 4hours | System in network | Regular “Packet
test -at least 5 minutes error tate before landing, and stays in network for duration of landing.
6. BC and DPA | August 16,2017] 4-hours | TBD | Special TBD Antenna airworthiness Certification certificate in Testing the
experimental category 4829-0589-9842v.2 0053174-000001 7 | 2020-11-16 | [
"Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 1of8 EXHIBIT 6 Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 2 of 8 AMENDMENT NO. 4 TO THE GENERAL TERMS AGREEMENT BETWEEN PANASONIC AVIONICS CORPORATION AND WCA HOLDINGS HY, LLC This Amendment No, 4 (“AMENDMENT”), dated as of the 6 day of April, 2017, is made and entered into by and between WCA HOLDINGS II, LLC, a Montana corporation (“Buyer”), and PANASONIC AVIONICS CORPORATION, 4 Delaware corporation (“Panasonic”), RECITALS: WHEREAS, Buyer is the owner or that.certain 737-73Q: airciaft, serial number 30329, bearing United States Registration No, N162WC (the “ Aircraft”), WHEREAS, Buyer and Panasonic are parties to that certain General Terms Agreement dated June 29, 2010 (the “Agreement”), pursuant to which, among other things, Panasonic agreed to install in the Aircraft a new cabin management system / in-flight entertainment system (the “eX1 Systenv’).",
"WHEREAS, Panasonic completed the installation of the eX1 System in the Aircraft on or about May 19,2013, WHEREAS, the eX1 System was installed in the Aircraft with a Broadband Controller (BC) RD ~NB2500-01 commercial satellite modem (the “Original Broadband Controllér”y, and Buyer and Panasonic desire to replace the Original Modem with a Newtec MDM5000 commercial satellite modem and the other items set forth in Schedule A hereto (the-“New Broadband Controller”). WHEREAS, replacement of the Original Broadband Controller with the New Broadband Controller will require that the tests set forth on Schedule B hereto (each, a “Flight Test” and collectively, the “Flight. Tests”) be-condutted using the Aircraft in order for Panasonic to obtain FAA certification to use the New Broadband Controller in the eX1 System in the Aircraft and other aircraft similar to the Airoralt.",
"WHEREAS, Panasonic has requested that Buyer conduct the Test Flights for Panasonic, which Buyer has agreed to do subject:to the terms and conditions of this Amendment. NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties hereby agree as follows: 1. AFRIRMATION OF RECITALS. The parties hereto affirm and acknowledge that. all facts set forth in the Recitals of this Amendment are true and correct. 2. DEFINITIONS.",
"All capitalized terms used in this Amendment.and not otherwise defined herein have the meanings specified in the Agreement. 3. BROADBAND EQUIPMENT. Panasonic shall install the New Broadband Controller in the Aircraft at‘no cost-to Buyer on. ot prior to Flight Test. No. 5 set forth on Schedule B hereto. The New Broadband Controller shall be covered by the ‘warranty provided in Section 6 of the. Agreeinent.. It is the intention of the. Buyer and Panasonic that the costs of the New Broadband Controller shall be exchanged for the Flight Tests as described in Section 4 and the Compensation as described in Section 4.4, -4829-0589-9842¥.2 0058 174-O00004 1 (2. Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 3 of 8 3.1 Equipment Upgrades. Panasonic shall also install in the Aircraft in September 2017 (or such other month as the parties: may agree) any and all upgrades to the eX System then available, including touch screens, Blu-ray players, audio speakers, LCD cabin monitors, cabin handsets, system remote. controls and related software. All such upgrades to the eX1 System shall be covered by the warranty provided in Section 6 of the Agreement, :as.",
"amended by this Amendment. It is the intention of the Buyer and Panasonic that the costs of all such upgrades shall be exchanged for Denionstration Flights as described in Amendment 3, Section 5.4. 4. FLIGHT TESTS. Subject to the terms and coriditions of this Amendment, Buyer agrees to provide the Aircraft for the Flight Tests. 41 Scheduling. Buyer shall bave final authority and discretion over all scheduling of the Aircraft, and Buyer shall not, at any time, be under any obligation to provide the Aircraft to Panasonic for a patticular Flight Test on a particular day. 4.2 Operational Control.",
"Buyer shall be responsible for the physical and technical operation of the-Aircraft and the safe performance of all Flight Tests, and shall retain full authority and control, including exclusive operational control, and possession of the Aircraft at all times at during all Flight Tests. In accordance with applicable FAA regulations, the qualified flight crew provided by Buyer will exercise all required and/or appropriate duties and responsibilities in regard to the safety of each flight conducted hereunder. The pilot- in-command shall have.",
"absolute discretion in all matters concerning the preparation of the Aircraft for each Flight Test and the Flight Test itself, the load carried and its distribution, the decision whether or not.a Flight Test shall be undertaken, the route to be flown, the place where landings shall-be made, and all other matters relating to operation of the Aircraft, Panasonic specifically agrees that the flight crew shall have final and complete authority to delay or cancel any flight for any reason or condition which in the sole judgment of the pilot-in-command. could compromise the safety of the flight, and to take any other action which in the sole judgment of the pilot-in-command is tiecessitated by considerations of safety, No such action of the pilot-in-command shall create or support any liability to Panasonic or any other person for loss, injury, damage or delay. The parties further agree that Buyer shall not be liable for delay or failure to furnish any Aircraft or any crew pursuant to this Amendment for any reason or no reason including, without limitation, citctimstances when such failure is caused by government regulation or authority, mechanical difficulty or breakdown, war, civil commotion, strikes or labor disputes, weather conditions, acts of God, or other circumstances within or beyond Buyer’s reasonable control.",
"43 Observation. For any Flight Test, the Buyer or the Buyer’s designee shall have the right to have up to two (2) observers essential to the flight on board the Aircraft to observe the operation of the New Broadband Controller and the eX1 System. 44 Compensation.. To compensate Buyer for the Flight Tests and any flights requested by Panasonic to move the airplane from. its current location to another location for purposes of the Flight Tests (“ Repositioning Flights”). required to conduct. such Test Flights, Panasonic shall:pay to Buyer an amount equal to the sum of (a) the lesser of (i) $8,000.00 for each flight hour (or fraction thereof) elapsed during such flights or (ii) the maximum amount permitted to be paid to Buyer under applicable FAA regulations to. comply with Part 91 requirements plus (b) $16,000.00 for each day (or fraction thereof) that the Aircraft is unavailable for use by Buyer as a result of conducting the Flight Tests or Repositioning “4829-0589-9842v.2 0058174-000001 [ Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 4 of 8 Flights and including each day (or fraction thereof) that the Aircraft has a special airworthiness certificate in the experimental category. 4.5 Special Airworthiness Certificates. Panasonic shall be fully responsible for, including payment of all costs, all regulatory and other filings necessary to obtain for the Aircraft (1) a special airworthiness certificate in the experimental category to permit Buyer to operate the Aircraft during the Flight Tests.and (2) a standard airworthiness certificate upon the completion of the Flight Tests.",
"Panasonic hereby represents that when obtaining the special airworthiness certificate, it has fully advised the Federal Aviation Administration of all flight operations, crew, on-boatd observers and techniciaris related to its conduct of the flight tests. Panasonic hereby represents that all test flights (and all demonstration flights under section 5.4 of Amendment No. 3) will comply with all Federal Aviation Regulations, including without limitation 14 C-E.R. § 91.319. 4.6 Indemnification. Notwithstanding anything to the contrary in the Agreement (or any of its Amendments), Panasonic agrees to indemnify, hold harmless and defend Buyer and its employees from and against any claims, causes of actions and/or damage arising from any and all claims by the Federal Aviation Administration and/or Department of Transportation, that the operations conducted under this Agreement and all Amendments violate Federal Aviation Regulations, U.S.",
"Statutes or other governmental authority. Panasonic shall assume the defense of such claim by counsel retained at Panasonic’s own expense and shall pay any damages assessed against or otherwise payable by Buyer as a. result of the final disposition of such claim. Sections 5.3 and 9 of the Agreement shall not apply to this Section 4.6. 5. EXTENSION OF TERM. Panasonic and Buyer each agree. to amend Section 13.1 of the. Agreement to delete the phrase “not to exceed two (2) renewal periods” and to substitute the plirase “not to exceed three (3) renewal periods.” Panasonic and Buyer each apree that the term of the Agreement shall be extended through December 31, 2017. 6. WARRANTY, Panasonic and Buyer each agree that the term “Products” shall include the New Broadband Controller and any Equipment Upgrades referenced in Section 3.1. Without limiting Section 6 of the Agreement and notwithstanding the expiration, termination or cancellation of the Agreement, Panasonic represents to Buyer that the New Broadband Controller and any Equipment Upgrades shall be free from defects in material and workmanship for a period commencing on the date of the installation (the “Installation Date’) and ending on the later to accur of (a) the date-that is sixty (60) months after the Installation Date or (b) the date that ownership of the Aircraft is transferred to an entity that is not controlled by or is under common contro! with Buyer.",
"7. GENERAL PROVISIONS 71 Assignment. Neither party may assign this Amendment except as provided in Section 14.3 of the Agreement. ‘7.2 Notices. Any notice, request, consent, demand or other communication given or required to. be given under this Aniendment shall be effective only ifin writing and shall be deemed to have been given as provided in Section 14.5 of the Agreement, 73 Governing Law. This Amendment and’performance hereunder, shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof. 4829-0589-9842:2.0058174-000001 Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 5of8 74 Entire Agreement. 7.4.1 This Amendment and the Agreement sets. forth the. entire understanding, and. hereby supersedes ariy and all prior agreements, oral or written, heretofore made, between the parties with respect to the subject matter of this Amendment.",
"7.4.2 No delay on the part of either party in exercising any. of its respective rights hereunder or the failure to exercise the same, nor the acquiescence in or waiver of a breach of any term or condition of this Amendment shall be deemed or construed to operate as a waiver of such rights or acquiescence thereto except in the specific instance for which. given, . 7.4.3 The terms and conditions of this Amendment may not be amended, changed, waived, varied or modified except by an amendment.in writing signed by Duly Authorized Representatives of both parties. 7.4.4 The invalidity: or unenforceability of any tert or condition of this Amendment pursuant to.any applicable law shall not affect the validity or enforceability of the remaining provisions hereof, but this Amendment shall be construed as if not containing the provision held invalid or unenforceable in the jurisdiction in which so held.",
"74.5 The-section headings used herein do not form a part of this Amendment but are for convenience only and:-shall not limit or be deemed or construed in any way to affect or limit the meaning of the language of the Sections herein contained. 8 EXECUTION. 8.1 Counterparts. This Ametidment.may bé executed in two or more counterparts, each of which shall be-an original, and all-of which, taken together, shall constitute: one and the same agreement. 8.2 Duly Authorized.",
"Hach party represents and warrants to the other party that the person executing this Amendment on its behalf is its Duly Authorized Representative. [Remainder of page intentionally left blank, signature page follows] FOIAC 4829.0589-9842v.2 0058174-000001 ia 37 re hos Biase Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 6 of 8 IN WITNESS WHEREOF, each party has caused this Amendment to be executed on the respective dates entered below. WCA HOLDINGS DI, LLC PANASONIC AVIONICS CORPORATION By: re ho. fe By: ~ | Name: Laworence 2 Simkins Name: _ Mark Jennings : Title: “Presi dent / Morag fe Title: Chief Operating Officer Date: A, o/Zolt- Date: Aor ih 9 Dit: 4829-0589-9842v.2 0058174-000001 Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 7 of 8 Schedule A Parts List Vendor Part Number Quantity .",
"Deseription LCOM . CC-TMTME020 | 2 Coaxial cable, LMR-200, TNC male, 50 Ohm,. length 20 ft. Pasternack | PE6229 2 2 Watt 50 Obi RF Load Up to 6 GHz with TNC Female Input Tri-Metal Plated Brass NewTec MDMS5000 1 Commercial satellite modem 4829-0589-9842y.2 0058£74-000001 Case 1:20-cv-07472-GHW Document 19-6 Filed 11/16/20 Page 8 of 8 Schedule B Flight Test Cases Test Aireraft Status | Performance No. | Test’Name Test Date Duration | Description Metric 1, Ground Test Aircraft patked on | Regular Packet: ground, Remote error rate joins network. Verify that 2-way link is:stable. 2 Take-offlink | April 12,2017 | 4hours | Reniote joins Special Packet test network at least5 | aitworthiness | -erfor rate minutes before certificate in takeoff, and stays the in network during | experimental takeoff to cruising | category altitude 3. 360 degree May 17,2017 | 4-hours | Remote in network. } Special Packet coordinated for at least 5 airworthiness | error rate turn link test minutes before certificate in beginning of 360° | the Recovery coordinated turns experimental | time if (+30° roll), Remote | category remote | should stay in drops out of network throughout network. _ entiré maneuver, 4, SPA June-14,2017 | 4hours | Monitor listener Special DSP_POL Polarization.",
"‘parameter airworthiness | XPOL TX Performance ‘“DSP_POLXPOL._ | certificatein | P2. LF TX _P2 LF\" tosee | the statistics how MxDMA experimental unpacts SPA’s ‘category perceived XPOL isolation 5, Landing link | July12,2017 | 4hours | System in network | Regular “Packet test -at least 5 minutes error tate before landing, and stays in network for duration of landing. 6. BC and DPA | August 16,2017] 4-hours | TBD | Special TBD Antenna airworthiness Certification certificate in Testing the experimental category 4829-0589-9842v.2 0053174-000001 7"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/162204016/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 446 The question arising is the same in both of above cases, which were argued together, and the facts stated are those specially pertaining to the case which is first above entitled. Certain railroad corporations, properly organized under the laws of this state, duly executed mortgages upon their respective properties and franchises. Subsequently thereto they were consolidated under the provisions of certain consolidation acts of the legislature of this state, not material to be further referred to in detail. After such consolidation the company, thus formed, also duly executed its mortgage for securing the payment of its bonds therewith issued. Default was made in the payment of the bonds issued under each of these various mortgages, and foreclosure proceedings were taken therein and the mortgages duly foreclosed, and the *Page 448 whole properties and franchises of all the companies were duly sold, under such foreclosure proceedings, and bid in by the relators, who, thereupon, proceeded to form a corporation under the reorganization acts of the legislature of this state, and known as chapter 430 of the Laws of 1874, and chapter 446 of the Laws of 1876, the latter being an amendment of the former act. Pursuant to its provisions the purchasers agreed upon and executed articles of association, and, as the act provided that a certificate of such articles should be filed in the office of the secretary of state before the parties forming the organization should become a body corporate, the relators applied to the defendant, as secretary of state, to file the same, at the same time tendering to him the proper amount of fees for recording it. The secretary refused to permit it to be filed, and based his refusal upon the provisions of the act, known as chapter 143 of the Laws of 1886, which provided that every corporation, incorporated under any general or special law of the state, having capital stock divided into shares, should pay to the state treasurer, for the use of the state, a tax of one-eighth of one per centum upon the amount of capital stock which the corporation was authorized to have, and the tax was to be paid upon the incorporation of the corporation, which should have and exercise no corporate powers until the tax was paid; and the secretary of state and all county clerks were prohibited from filing any certificate of articles of association, and from giving any certificate to any such corporation until they were satisfied that the tax had been paid into the state treasury. It was conceded that this tax had not been paid, and the secretary, therefore, refused to file the certificate. The counsel for the appellants claim that the act of 1886 applies only to cases where the state grants franchises to a corporation, and it was stated that none was granted in such a case as this. They also argued that the reorganization act of 1874, as amended in 1876, in such a case as this, simply continued or revived the franchises of the old corporation under the same charter and with the same immunities and *Page 449 rights held by the former company. Lastly, they claimed that if the act of 1886 was held to apply to this case, it was unconstitutional as violating the provision of the Federal Constitution that no state should pass any law impairing the obligation of contracts. We think none of the claims is well founded. The act, by its terms, applies to every corporation, and the tax is payable upon its incorporation, and hence it cannot be restricted in its meaning to those cases only in which the state directly grants some franchise to a corporation other than the franchise to be a corporation. There is nothing in the context which should so restrict the provisions of the act, and there is no view of the question in which such a narrow construction could be even plausibly maintained as against the plain language of the law. We think it is also plain that, under the reorganization acts above mentioned, when the purchasers at the foreclosure sale undertake to reorganize under those acts, and for that purpose to file in the secretary's office a certificate, upon the filing of which they become a body politic and corporate, the corporation thus formed is a new and an entirely different one from that whose property and franchises the purchasers may have bought under the foreclosure proceedings. It is true that the corporation about to be formed by the filing of the certificate has, by force of the statute, when formed, all the rights, franchises, powers, privileges and immunities which were possessed before such sale by the corporation whose property was sold; but that does not make the corporation the same by any means. The right to be a corporation, which the old corporation had, was not mortgaged and was not sold, and did not pass to the purchasers; and they only obtain such a right upon filing the certificate mentioned, and then they obtain it by direct grant from the state, and not in any degree by the sale and purchase of the franchises, etc., of the old corporation. The last ground argued by counsel is, we think, equally untenable. There has been no violation of any contract. These mortgages, it is true, were all executed and the bonds *Page 450 issued long prior to the passage of the tax act of 1886, already mentioned. The franchises of the corporations were duly mortgaged under the provisions of state laws, by which it was provided that purchasers at foreclosure sales under such mortgages could, upon compliance with the law, file certificates and become incorporated bodies. But such acts were, in no sense, contracts on the part of the state with persons purchasing bonds secured by such mortgages, or with future possible purchasers at foreclosure sales, that the provisions existing at the time of the mortgaging of the franchises for the incorporation of such purchasers should remain the same. I think this question has been decided in this way by the Supreme Court of the United States, and further discussion of it is unnecessary. (Memphis L.R.R. Co. v.Commissioners, 112 U.S. 609.) Whether the money exacted by the state on the incorporation of corporations, etc., is a tax, in the strict and limited sense of that word, or not is of no importance. It is a condition imposed by the state in the exercise of its undoubted power, upon the payment of which the certificate may be filed. The orders of the Special and General Terms are right and should be affirmed, with costs. All concur. Orders affirmed. | 07-05-2016 | [
"[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 446 The question arising is the same in both of above cases, which were argued together, and the facts stated are those specially pertaining to the case which is first above entitled. Certain railroad corporations, properly organized under the laws of this state, duly executed mortgages upon their respective properties and franchises. Subsequently thereto they were consolidated under the provisions of certain consolidation acts of the legislature of this state, not material to be further referred to in detail. After such consolidation the company, thus formed, also duly executed its mortgage for securing the payment of its bonds therewith issued.",
"Default was made in the payment of the bonds issued under each of these various mortgages, and foreclosure proceedings were taken therein and the mortgages duly foreclosed, and the *Page 448 whole properties and franchises of all the companies were duly sold, under such foreclosure proceedings, and bid in by the relators, who, thereupon, proceeded to form a corporation under the reorganization acts of the legislature of this state, and known as chapter 430 of the Laws of 1874, and chapter 446 of the Laws of 1876, the latter being an amendment of the former act. Pursuant to its provisions the purchasers agreed upon and executed articles of association, and, as the act provided that a certificate of such articles should be filed in the office of the secretary of state before the parties forming the organization should become a body corporate, the relators applied to the defendant, as secretary of state, to file the same, at the same time tendering to him the proper amount of fees for recording it. The secretary refused to permit it to be filed, and based his refusal upon the provisions of the act, known as chapter 143 of the Laws of 1886, which provided that every corporation, incorporated under any general or special law of the state, having capital stock divided into shares, should pay to the state treasurer, for the use of the state, a tax of one-eighth of one per centum upon the amount of capital stock which the corporation was authorized to have, and the tax was to be paid upon the incorporation of the corporation, which should have and exercise no corporate powers until the tax was paid; and the secretary of state and all county clerks were prohibited from filing any certificate of articles of association, and from giving any certificate to any such corporation until they were satisfied that the tax had been paid into the state treasury.",
"It was conceded that this tax had not been paid, and the secretary, therefore, refused to file the certificate. The counsel for the appellants claim that the act of 1886 applies only to cases where the state grants franchises to a corporation, and it was stated that none was granted in such a case as this. They also argued that the reorganization act of 1874, as amended in 1876, in such a case as this, simply continued or revived the franchises of the old corporation under the same charter and with the same immunities and *Page 449 rights held by the former company. Lastly, they claimed that if the act of 1886 was held to apply to this case, it was unconstitutional as violating the provision of the Federal Constitution that no state should pass any law impairing the obligation of contracts. We think none of the claims is well founded. The act, by its terms, applies to every corporation, and the tax is payable upon its incorporation, and hence it cannot be restricted in its meaning to those cases only in which the state directly grants some franchise to a corporation other than the franchise to be a corporation. There is nothing in the context which should so restrict the provisions of the act, and there is no view of the question in which such a narrow construction could be even plausibly maintained as against the plain language of the law.",
"We think it is also plain that, under the reorganization acts above mentioned, when the purchasers at the foreclosure sale undertake to reorganize under those acts, and for that purpose to file in the secretary's office a certificate, upon the filing of which they become a body politic and corporate, the corporation thus formed is a new and an entirely different one from that whose property and franchises the purchasers may have bought under the foreclosure proceedings. It is true that the corporation about to be formed by the filing of the certificate has, by force of the statute, when formed, all the rights, franchises, powers, privileges and immunities which were possessed before such sale by the corporation whose property was sold; but that does not make the corporation the same by any means. The right to be a corporation, which the old corporation had, was not mortgaged and was not sold, and did not pass to the purchasers; and they only obtain such a right upon filing the certificate mentioned, and then they obtain it by direct grant from the state, and not in any degree by the sale and purchase of the franchises, etc., of the old corporation.",
"The last ground argued by counsel is, we think, equally untenable. There has been no violation of any contract. These mortgages, it is true, were all executed and the bonds *Page 450 issued long prior to the passage of the tax act of 1886, already mentioned. The franchises of the corporations were duly mortgaged under the provisions of state laws, by which it was provided that purchasers at foreclosure sales under such mortgages could, upon compliance with the law, file certificates and become incorporated bodies. But such acts were, in no sense, contracts on the part of the state with persons purchasing bonds secured by such mortgages, or with future possible purchasers at foreclosure sales, that the provisions existing at the time of the mortgaging of the franchises for the incorporation of such purchasers should remain the same. I think this question has been decided in this way by the Supreme Court of the United States, and further discussion of it is unnecessary. (Memphis L.R.R.",
"Co. v.Commissioners, 112 U.S. 609.) Whether the money exacted by the state on the incorporation of corporations, etc., is a tax, in the strict and limited sense of that word, or not is of no importance. It is a condition imposed by the state in the exercise of its undoubted power, upon the payment of which the certificate may be filed. The orders of the Special and General Terms are right and should be affirmed, with costs. All concur. Orders affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3611088/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement The information disclosure statement (IDS) submitted on 06/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment The amendments filed on May 18, 2022 have been entered. Claims 1-4 and 8-13, and 15-20 have been amended. Claims 5-7 have been canceled. Claims 21-23 have been added.
Response to Arguments Applicant’s arguments filed on May 18, 2022 have been considered but are not persuasive.
Applicant’s argument 1: Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest each limitation recited by independent claims 1, 11, and 17. For example, Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest "determining that an action item comprising a task to be completed is associated with a first user of [a] first client device by determining, based on comparing [a] first plurality of volumes and [a] second plurality of volumes, that a segment of [] audio content that includes a description of the action item is contributed by the first user," as recited by currently amended independent claim 1 and as similarly recited by currently amended independent claims 11 and 17. Examiners’ response to argument 1: The examiners respectfully disagree. Sinkov discloses determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user. However, Diamant discloses determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))). Therefore, the combination of Sinkov and Diamant discloses determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content that includes a description of the action item is contributed by the first user.
Applicant’s argument 2: Sinkov, whether considered singly or in combination with the other cited references, further fails to describe, teach, or suggest each limitation recited by currently amended dependent claim 9. In particular, Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest "associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device." As previously mentioned, the Office Action relies on portions of Diamant to cover identification of an action item. While the referenced portions of Diamant describe identifying an action item, they fail to discuss functions performed in response to identifying the action item. Indeed, they fail to teach or suggest "generating an action item prompt to complete the action item" and providing the action item prompt for display on the first client device." Thus, the combination of Sinkov and Diamant fails to teach or suggest every limitation of currently amended dependent claim 9.
Examiners’ response to argument 2: The examiners respectfully disagree. Diamant discloses generating an action item prompt to complete the action item" and providing the action item prompt for display on the first client device (Parag. [0109-0111]; (The art teaches that reviewable transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform). The art teaches that a reviewable transcript may be provided to other individuals instead of or in addition to providing the reviewable transcript to conference participants (i.e., including the first client device). In an example, a reviewable transcript may be provided to a supervisor, colleague, or employee of a conference participant. In an example, the conference leader or any other suitable member of an organization associated with the conference may restrict sharing of the reviewable transcript (e.g., so that the conference leader's permission is needed for sharing, or so that the reviewable transcript can only be shared within the organization, in accordance with security and/or privacy policies of the organization). The reviewable transcript may be shared in an unabridged and/or edited form, e.g., the conference leader may initially review the reviewable transcript in order to redact sensitive information, before sharing the redacted transcript with any suitable individuals. The reviewable transcript may be filtered to focus on content of interest (e.g., name mentions and action items) for any individual receiving the reviewable transcript. i.e., the action item prompt is generated and displayed)).
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4, 8-21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Sinkov et al. (Pub. No. US 2019/0200121), hereinafter Sinkov; in view of Diamant (Pub. No. US 2019/0341050), hereinafter Diamant.
Claim 1. Sinkov discloses a computer-implemented method comprising: receiving, by a digital content management system, a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receiving, by the digital content management system, a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); comparing, by the digital content management system, the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)); Responsive to Office Action mailed February 24, 2022 determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associating, by the digital content management system, the action item with the first user. However, Diamant discloses: determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associating, by the digital content management system, the action item with the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 2. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses wherein the first set of audio data further comprises a time-based record of the first plurality of volumes captured by the first client device; and further comprising analyzing the first set of audio data to determine a primary speaking volume associated with the first client device by analyzing the time-based record of the first plurality of volumes to determine the primary speaking volume (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers)). Claim 3. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses the computer-implemented method further comprising determining a primary speaking volume associated with the first client device based on comparing th(Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)). Page 3 of 17 Claim 4. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising receiving, from a computer application installed on the first client device, an authentication of the first user, wherein determining that the segment of the audio content is contributed by the first user with the segment of the audio content is further based on the authentication of the first user. However, Diamant discloses: receiving, from a computer application installed on the first client device, an authentication of the first user (Parag. [0095]; (The art teaches that Computerized intelligent assistant may be configured to track the arrival of a remote participant based on the remote participant logging in to a remote conferencing program (e.g., a messaging application, voice and/or video chat application, or any other suitable interface for remote interaction))), wherein determining that the segment of the audio content is contributed by the first user with the segment of the audio content is further based on the authentication of the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 8. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising: generating an identification tag corresponding to the first user; and modifying a meeting transcript comprising a text representation of the audio content by associating the identification tag with the segment of the audio content. However, Diamant discloses generating an identification tag corresponding to the first user; and modifying a meeting transcript comprising a text representation of the audio content by associating the identification tag with the segment of the audio content (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item), Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text. The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis summary at a companion device of a conference participant (i.e., first user), indicating a frequency of utterance of words having the predefined sentiment)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 9. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose wherein: associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device. However, Diamant discloses associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device. (Parag. [0109-0111]; (The art teaches that reviewable transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform). The art teaches that a reviewable transcript may be provided to other individuals instead of or in addition to providing the reviewable transcript to conference participants (i.e., including the first client device). In an example, a reviewable transcript may be provided to a supervisor, colleague, or employee of a conference participant. In an example, the conference leader or any other suitable member of an organization associated with the conference may restrict sharing of the reviewable transcript (e.g., so that the conference leader's permission is needed for sharing, or so that the reviewable transcript can only be shared within the organization, in accordance with security and/or privacy policies of the organization). The reviewable transcript may be shared in an unabridged and/or edited form, e.g., the conference leader may initially review the reviewable transcript in order to redact sensitive information, before sharing the redacted transcript with any suitable individuals. The reviewable transcript may be filtered to focus on content of interest (e.g., name mentions and action items) for any individual receiving the reviewable transcript. i.e., the action item prompt is generated and displayed)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Page 5 of 17 Claim 10. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising generating a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data. However, Diamant discloses further comprising generating a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data (Parag. [0060]; (The art teaches that Labeled and/or partially labelled audio segments may be used to not only determine which of a plurality of N speakers is responsible for an utterance, but also translate the utterance into a textural representation for downstream operations, such as transcription)). Page 6 of 17 It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 11. Sinkov discloses a non-transitory computer readable storage medium comprising instructions that, when executed by at least one processor (Parag. [0009-0010]), cause a computing device to: receive a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receive a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)), compare the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)); determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)) Sinkov doesn’t explicitly disclose determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associate the action item with the first user. However, Diamant discloses: determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associate the action item with the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 12. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov further discloses wherein the first set of audio data further comprises volume data corresponding to thfurther comprising instructions that, when executed by the at least one processor, cause the computing device to analyze the first set of audio data to determine a primary speaking volume associated with the first client device by analyzing the volume data of the first set of audio data to determine the primary speaking volume (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers)). Claim 13. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov doesn’t explicitly disclose the non-transitory computer readable storage medium further comprising instructions that, when executed by the at least one processor, cause the computing device to: track participation data corresponding to the first user based on the segment of the audio content; and generate a participation report based on the participation data. However, Diamant discloses further comprising instructions that, when executed by the at least one processor, cause the computing device to: track participation data corresponding to the first user based on the segment of the audio content; and generate a participation report based on the participation data (Parag. [0004], Parag. [0023-0024], Parag. [0082], Parag. [0109], and Parag. [0138]; (The art teaches that the conference transcript can be used by participants for reviewing various multi-modal interactions and other events of interest that happened in the conference. The conference transcript can be analyzed to provide conference participants with feedback regarding their own participation in the conference, other participants, and team/organizational trends. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item). Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text. The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis summary at a companion device of a conference participant, indicating a frequency of utterance of words having the predefined sentiment)))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Page 8 of 17 Claim 14. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 13, Sinkov doesn’t explicitly disclose wherein the participation data includes at least one of a length of time spoken by the first user or a number of interruptions by the first user. However, Diamant discloses wherein the participation data includes at least one of a length of time spoken by the first user or a number of interruptions by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 15. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 13, Sinkov doesn’t explicitly disclose further comprising instructions that, when executed by the at least one processor, cause the computing device to provide the participation report for display on the first client device. However, Diamant discloses further comprising instructions that, when executed by the at least one processor, cause the computing device to provide the participation report for display on the first client device (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item), Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text. The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis (i.e., displayed for the user) summary at a companion device of a conference participant (i.e., first user), indicating a frequency of utterance of words having the predefined sentiment)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 16. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov doesn’t explicitly disclose the non-transitory computer readable storage medium further comprising instructions that, when executed by the at least one processor, cause the computing device to receive, from a computer application installed on the first client device, an authentication of the first user generated by submission of one or more login credentials by the first user via the first client device, wherein determining that the segment of the audio content is contributed by the first user is further based on the authentication of the first user. However, Diamant discloses instructions that, when executed by the at least one processor, cause the computing device to receive, from a computer application installed on the first client device, an authentication of the first user generated by submission of one or more login credentials by the first user via the first client device (Parag. [0095]; (The art teaches that Computerized intelligent assistant may be configured to track the arrival of a remote participant based on the remote participant logging in to a remote conferencing program (e.g., a messaging application, voice and/or video chat application, or any other suitable interface for remote interaction))), wherein determining that the segment of the audio content is contributed by the first user is further based on the authentication of the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim
17. Sinkov discloses a system comprising: at least one processor; and a non-transitory computer readable storage medium comprising instructions that, when executed by the at least one processor (Parag. [0009-0010]), cause the system to: receive a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receive a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); compare the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)); determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)) Sinkov doesn’t explicitly disclose determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associate the action item with the first user. However, Diamant discloses: determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associate the action item with the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 18. Sinkov in view of Diamant discloses the system of claim 17, Sinkov doesn’t explicitly disclose the system further comprising instructions that, when executed by the at least one processor, cause the system to generate a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data. However, Diamant discloses instructions that, when executed by the at least one processor, cause the system to generate a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data (Parag. [0060]; (The art teaches that Labeled and/or partially labelled audio segments may be used to not only determine which of a plurality of N speakers is responsible for an utterance, but also translate the utterance into a textural representation for downstream operations, such as transcription)). Page 6 of 17 It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 19. Sinkov in view of Diamant discloses the system of claim 17, Sinkov further discloses wherein the instructions, when executed by the at least one processor, causes the system to receive the first set of audio data from th(Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)).
Claim 20. Sinkov in view of Diamant discloses the system of claim 17, Sinkov further discloses further comprising instructions that, when executed by the at least one processor, cause the system to determine a primary speaking volume associated with the first client device by: determining a second primary speaking volume associated with the second client device based on comparing the first plurality of volumes and the second plurality of volumes, and determining the primary speaking volume associated with the first client device based on the second primary speaking volume associated with the second client device (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)).
Claim 21. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses wherein: receiving the first set of audio data comprising the audio content captured in the first plurality of volumes comprises receiving the first set of audio data comprising a first segment of speech from a first meeting participant captured in a first volume by the first client device; and receiving the second set of audio data comprising the audio content captured in the second plurality of volumes comprises receiving the second set of audio data comprising the first segment of speech from the first meeting participant captured in a second volume by the second client device. (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)).
Claim 23. Sinkov in view of Diamant discloses the computer-implemented method of claim 21, Sinkov further discloses wherein determining, based on comparing the first plurality of volumes and the second plurality of volumes, that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content is contributed by the first user comprises: determining, based on comparing the first plurality of volumes and the second plurality of volumes, that the first volume captured by the first client device corresponds to a primary speaking volume for the first client device; determining that the first volume corresponds to speech from the first user of the first client device (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content includes the description of the action item; and determining that the segment of the audio content that includes the description of the action item is captured by the first client device in the first volume. However, Diamant discloses that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content that includes the description of the action item; and determining that the segment of the audio content that includes the description of the action item is captured by the first client device in the first volume (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Sinkov et al. (Pub. No. US 2019/0200121), hereinafter Sinkov; in view of Diamant (Pub. No. US 2019/0341050), hereinafter Diamant, and in view of Gleim (Pub. No. US 2015/0063553).
Claim 22. Sinkov in view of Diamant discloses the computer-implemented method of claim 21, The combination doesn’t explicitly disclose wherein: the first volume captured by the first client device corresponds to a first distance between the first meeting participant and the first client device; and the second volume captured by the second client device corresponds to a second distance between the first meeting participant and the second client device. However, Gleim discloses wherein: the first volume captured by the first client device corresponds to a first distance between the first meeting participant and the first client device; and the second volume captured by the second client device corresponds to a second distance between the first meeting participant and the second client device (Parag. [0051]; (The art teaches that the volume level can tell us how loud someone is talking, but it also tells us how far a speaker is from their physical microphone. For 3D sound conferencing, we intentionally level the sound to remove the information about how far the speaker is from their physical microphone so that we can then use an attenuator to intentionally and negative or positive volume information that communicates the distance between the speaker (speaking participant) and the listener (listening participant) in the mapped room. i.e., the volume corresponds to the distance between the meeting participant and the user device, as equivalent to the applicant’s definition)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify the combination to incorporate the teaching of Gleim. This would be convenient to enhance virtual learning system in which the participant can feel he or she is really experiencing an actual classroom environment with each user or participant having the ability to distinguish between multiple voices (Parag. [0002]).
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Zhao et al. (US 2015/0201082) – Related art in the area of conferencing systems, (Parag. [0003], as the distance between participants using the conference device and the conference device increases, it can become increasingly difficult for remote participants to hear participants using the conference device that are a greater distance from the communication device. Moreover, an apparent volume of participants' voices sharing the conference unit to the remote participant(s) can vary according to a distance each local participant is to the conference device).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABDELBASST TALIOUA whose telephone number is (571)272-4061. The examiner can normally be reached on Monday-Thursday 7:30 am - 5:30 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Trost can be reached on 571-272-7872. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /A.T./Examiner, Art Unit 2442 /WILLIAM G TROST IV/Supervisory Patent Examiner, Art Unit 2442 | 2022-06-09T11:42:25 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Information Disclosure Statement The information disclosure statement (IDS) submitted on 06/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Response to Amendment The amendments filed on May 18, 2022 have been entered. Claims 1-4 and 8-13, and 15-20 have been amended. Claims 5-7 have been canceled. Claims 21-23 have been added. Response to Arguments Applicant’s arguments filed on May 18, 2022 have been considered but are not persuasive. Applicant’s argument 1: Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest each limitation recited by independent claims 1, 11, and 17. For example, Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest \"determining that an action item comprising a task to be completed is associated with a first user of [a] first client device by determining, based on comparing [a] first plurality of volumes and [a] second plurality of volumes, that a segment of [] audio content that includes a description of the action item is contributed by the first user,\" as recited by currently amended independent claim 1 and as similarly recited by currently amended independent claims 11 and 17.",
"Examiners’ response to argument 1: The examiners respectfully disagree. Sinkov discloses determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker.",
"In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user. However, Diamant discloses determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription.",
"FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available.",
"Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))). Therefore, the combination of Sinkov and Diamant discloses determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content that includes a description of the action item is contributed by the first user.",
"Applicant’s argument 2: Sinkov, whether considered singly or in combination with the other cited references, further fails to describe, teach, or suggest each limitation recited by currently amended dependent claim 9. In particular, Sinkov, whether considered singly or in combination with the other cited references, fails to describe, teach, or suggest \"associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device.\" As previously mentioned, the Office Action relies on portions of Diamant to cover identification of an action item. While the referenced portions of Diamant describe identifying an action item, they fail to discuss functions performed in response to identifying the action item.",
"Indeed, they fail to teach or suggest \"generating an action item prompt to complete the action item\" and providing the action item prompt for display on the first client device.\" Thus, the combination of Sinkov and Diamant fails to teach or suggest every limitation of currently amended dependent claim 9. Examiners’ response to argument 2: The examiners respectfully disagree. Diamant discloses generating an action item prompt to complete the action item\" and providing the action item prompt for display on the first client device (Parag. [0109-0111]; (The art teaches that reviewable transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform).",
"The art teaches that a reviewable transcript may be provided to other individuals instead of or in addition to providing the reviewable transcript to conference participants (i.e., including the first client device). In an example, a reviewable transcript may be provided to a supervisor, colleague, or employee of a conference participant. In an example, the conference leader or any other suitable member of an organization associated with the conference may restrict sharing of the reviewable transcript (e.g., so that the conference leader's permission is needed for sharing, or so that the reviewable transcript can only be shared within the organization, in accordance with security and/or privacy policies of the organization). The reviewable transcript may be shared in an unabridged and/or edited form, e.g., the conference leader may initially review the reviewable transcript in order to redact sensitive information, before sharing the redacted transcript with any suitable individuals. The reviewable transcript may be filtered to focus on content of interest (e.g., name mentions and action items) for any individual receiving the reviewable transcript. i.e., the action item prompt is generated and displayed)). Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C.",
"102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.",
"Claims 1-4, 8-21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Sinkov et al. (Pub. No. US 2019/0200121), hereinafter Sinkov; in view of Diamant (Pub. No. US 2019/0341050), hereinafter Diamant. Claim 1. Sinkov discloses a computer-implemented method comprising: receiving, by a digital content management system, a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time.",
"Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receiving, by the digital content management system, a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag.",
"[0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers.",
"After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); comparing, by the digital content management system, the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time.",
"Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e.",
"by switching channels of simultaneous speakers)); Responsive to Office Action mailed February 24, 2022 determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker.",
"In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associating, by the digital content management system, the action item with the first user. However, Diamant discloses: determining that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format.",
"The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available.",
"Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associating, by the digital content management system, the action item with the first user (Parag. [0052-0053], Parag.",
"[0109], Parag. [0115], and Parag. [0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag.",
"[0024]). Claim 2. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses wherein the first set of audio data further comprises a time-based record of the first plurality of volumes captured by the first client device; and further comprising analyzing the first set of audio data to determine a primary speaking volume associated with the first client device by analyzing the time-based record of the first plurality of volumes to determine the primary speaking volume (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise.",
"In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers)). Claim 3. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses the computer-implemented method further comprising determining a primary speaking volume associated with the first client device based on comparing th(Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant.",
"Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e.",
"by switching channels of simultaneous speakers)). Page 3 of 17 Claim 4. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising receiving, from a computer application installed on the first client device, an authentication of the first user, wherein determining that the segment of the audio content is contributed by the first user with the segment of the audio content is further based on the authentication of the first user. However, Diamant discloses: receiving, from a computer application installed on the first client device, an authentication of the first user (Parag. [0095]; (The art teaches that Computerized intelligent assistant may be configured to track the arrival of a remote participant based on the remote participant logging in to a remote conferencing program (e.g., a messaging application, voice and/or video chat application, or any other suitable interface for remote interaction))), wherein determining that the segment of the audio content is contributed by the first user with the segment of the audio content is further based on the authentication of the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag.",
"[0024]). Claim 8. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising: generating an identification tag corresponding to the first user; and modifying a meeting transcript comprising a text representation of the audio content by associating the identification tag with the segment of the audio content. However, Diamant discloses generating an identification tag corresponding to the first user; and modifying a meeting transcript comprising a text representation of the audio content by associating the identification tag with the segment of the audio content (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag.",
"[0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format.",
"The output effectively associates speech with a particular speaker during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item), Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text.",
"The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis summary at a companion device of a conference participant (i.e., first user), indicating a frequency of utterance of words having the predefined sentiment)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag.",
"[0024]). Claim 9. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose wherein: associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device. However, Diamant discloses associating the action item with the first user comprises: generating an action item prompt to complete the action item; and providing the action item prompt for display on the first client device. (Parag. [0109-0111]; (The art teaches that reviewable transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform).",
"The art teaches that a reviewable transcript may be provided to other individuals instead of or in addition to providing the reviewable transcript to conference participants (i.e., including the first client device). In an example, a reviewable transcript may be provided to a supervisor, colleague, or employee of a conference participant. In an example, the conference leader or any other suitable member of an organization associated with the conference may restrict sharing of the reviewable transcript (e.g., so that the conference leader's permission is needed for sharing, or so that the reviewable transcript can only be shared within the organization, in accordance with security and/or privacy policies of the organization).",
"The reviewable transcript may be shared in an unabridged and/or edited form, e.g., the conference leader may initially review the reviewable transcript in order to redact sensitive information, before sharing the redacted transcript with any suitable individuals. The reviewable transcript may be filtered to focus on content of interest (e.g., name mentions and action items) for any individual receiving the reviewable transcript. i.e., the action item prompt is generated and displayed)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).",
"Page 5 of 17 Claim 10. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov doesn’t explicitly disclose the computer-implemented method further comprising generating a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data. However, Diamant discloses further comprising generating a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data (Parag. [0060]; (The art teaches that Labeled and/or partially labelled audio segments may be used to not only determine which of a plurality of N speakers is responsible for an utterance, but also translate the utterance into a textural representation for downstream operations, such as transcription)). Page 6 of 17 It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant.",
"This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 11. Sinkov discloses a non-transitory computer readable storage medium comprising instructions that, when executed by at least one processor (Parag. [0009-0010]), cause a computing device to: receive a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time.",
"Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receive a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise.",
"In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)), compare the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag. [0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers.",
"The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)); determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag.",
"[0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)) Sinkov doesn’t explicitly disclose determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associate the action item with the first user.",
"However, Diamant discloses: determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608.",
"The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800.",
"The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available.",
"Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associate the action item with the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant.",
"This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 12. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov further discloses wherein the first set of audio data further comprises volume data corresponding to thfurther comprising instructions that, when executed by the at least one processor, cause the computing device to analyze the first set of audio data to determine a primary speaking volume associated with the first client device by analyzing the volume data of the first set of audio data to determine the primary speaking volume (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise.",
"In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers)). Claim 13. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov doesn’t explicitly disclose the non-transitory computer readable storage medium further comprising instructions that, when executed by the at least one processor, cause the computing device to: track participation data corresponding to the first user based on the segment of the audio content; and generate a participation report based on the participation data. However, Diamant discloses further comprising instructions that, when executed by the at least one processor, cause the computing device to: track participation data corresponding to the first user based on the segment of the audio content; and generate a participation report based on the participation data (Parag. [0004], Parag.",
"[0023-0024], Parag. [0082], Parag. [0109], and Parag. [0138]; (The art teaches that the conference transcript can be used by participants for reviewing various multi-modal interactions and other events of interest that happened in the conference. The conference transcript can be analyzed to provide conference participants with feedback regarding their own participation in the conference, other participants, and team/organizational trends. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item). Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text.",
"The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis summary at a companion device of a conference participant, indicating a frequency of utterance of words having the predefined sentiment)))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).",
"Page 8 of 17 Claim 14. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 13, Sinkov doesn’t explicitly disclose wherein the participation data includes at least one of a length of time spoken by the first user or a number of interruptions by the first user. However, Diamant discloses wherein the participation data includes at least one of a length of time spoken by the first user or a number of interruptions by the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG.",
"7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 15. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 13, Sinkov doesn’t explicitly disclose further comprising instructions that, when executed by the at least one processor, cause the computing device to provide the participation report for display on the first client device. However, Diamant discloses further comprising instructions that, when executed by the at least one processor, cause the computing device to provide the participation report for display on the first client device (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations.",
"One nonlimiting downstream operation is conversation transcription. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., meeting item), Also, in an example, the art teaches that the machine learning classifier may be configured to receive any other suitable transcript data automatically recorded at 211, e.g., transcribed speech audio in the form of text.",
"The transcription machine may be configured to analyze the transcript to detect words having a predefined sentiment (e.g., positive, negative, “happy”, or any other suitable sentiment), in order to present a sentiment analysis (i.e., displayed for the user) summary at a companion device of a conference participant (i.e., first user), indicating a frequency of utterance of words having the predefined sentiment)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag.",
"[0024]). Claim 16. Sinkov in view of Diamant discloses the non-transitory computer readable storage medium of claim 11, Sinkov doesn’t explicitly disclose the non-transitory computer readable storage medium further comprising instructions that, when executed by the at least one processor, cause the computing device to receive, from a computer application installed on the first client device, an authentication of the first user generated by submission of one or more login credentials by the first user via the first client device, wherein determining that the segment of the audio content is contributed by the first user is further based on the authentication of the first user.",
"However, Diamant discloses instructions that, when executed by the at least one processor, cause the computing device to receive, from a computer application installed on the first client device, an authentication of the first user generated by submission of one or more login credentials by the first user via the first client device (Parag. [0095]; (The art teaches that Computerized intelligent assistant may be configured to track the arrival of a remote participant based on the remote participant logging in to a remote conferencing program (e.g., a messaging application, voice and/or video chat application, or any other suitable interface for remote interaction))), wherein determining that the segment of the audio content is contributed by the first user is further based on the authentication of the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking; the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608)). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag.",
"[0024]). Claim 17. Sinkov discloses a system comprising: at least one processor; and a non-transitory computer readable storage medium comprising instructions that, when executed by the at least one processor (Parag. [0009-0010]), cause the system to: receive a first set of audio data from a first client device, the first set of audio data comprising audio content corresponding to speech from a plurality of participants of a meeting captured in a first plurality of volumes (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise.",
"In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); receive a second set of audio data from a second client device, the second set of audio data comprising the audio content corresponding to the speech from the plurality of participants of the meeting captured in a second plurality of volumes (Parag. [0009] and Parag.",
"[0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input (i.e., second set of audio data) at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time.",
"Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)); compare the first plurality of volumes and the second plurality of volumes (Parag. [0009] and Parag.",
"[0018-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique.",
"Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers)); determining, based on comparing the first plurality of volumes and the second plurality of volumes, that a segment of the audio content is contributed by the first user (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker.",
"In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)) Sinkov doesn’t explicitly disclose determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user; and associate the action item with the first user. However, Diamant discloses: determine that an action item comprising a task to be completed is associated with a first user of the first client device by determining that a segment of the audio content that includes a description of the action item is contributed by the first user (Parag.",
"[0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking. Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations.",
"One nonlimiting downstream operation is conversation transcription. FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available. Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking.",
"The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))); and associate the action item with the first user (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag.",
"[0138]; (The art teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform) (i.e., action item))).",
"It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 18. Sinkov in view of Diamant discloses the system of claim 17, Sinkov doesn’t explicitly disclose the system further comprising instructions that, when executed by the at least one processor, cause the system to generate a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data. However, Diamant discloses instructions that, when executed by the at least one processor, cause the system to generate a transcript of the audio content based on at least one of the first set of audio data or the second set of audio data (Parag.",
"[0060]; (The art teaches that Labeled and/or partially labelled audio segments may be used to not only determine which of a plurality of N speakers is responsible for an utterance, but also translate the utterance into a textural representation for downstream operations, such as transcription)). Page 6 of 17 It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant. This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]).",
"Claim 19. Sinkov in view of Diamant discloses the system of claim 17, Sinkov further discloses wherein the instructions, when executed by the at least one processor, causes the system to receive the first set of audio data from th(Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant.",
"Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers. After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel.",
"Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)). Claim 20. Sinkov in view of Diamant discloses the system of claim 17, Sinkov further discloses further comprising instructions that, when executed by the at least one processor, cause the system to determine a primary speaking volume associated with the first client device by: determining a second primary speaking volume associated with the second client device based on comparing the first plurality of volumes and the second plurality of volumes, and determining the primary speaking volume associated with the first client device based on the second primary speaking volume associated with the second client device (Parag. [0009] and Parag. [0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices.",
"Recording audio information from a meeting may also include simultaneously recording audio input at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time. Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers.",
"The availability of two symmetric cross-recordings may facilitate assessing the coefficients (after an initial cancellation of ambient noises) and filtering out the weaker components using, for example, echo cancellation technique. Even if the double-talk suppression process has not fully succeeded, each channel unambiguously represents a corresponding speaker and any mix of speaker voices may be instantly identified in a full record by referring to the simultaneous recording by other principal phone(s), i.e. by switching channels of simultaneous speakers. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker.",
"In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Claim 21. Sinkov in view of Diamant discloses the computer-implemented method of claim 1, Sinkov further discloses wherein: receiving the first set of audio data comprising the audio content captured in the first plurality of volumes comprises receiving the first set of audio data comprising a first segment of speech from a first meeting participant captured in a first volume by the first client device; and receiving the second set of audio data comprising the audio content captured in the second plurality of volumes comprises receiving the second set of audio data comprising the first segment of speech from the first meeting participant captured in a second volume by the second client device. (Parag. [0009] and Parag.",
"[0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. Recording audio information from a meeting may also include simultaneously recording audio input (i.e., first set of audio data) at the first one of the personal audio input audio devices and on the first channel and audio input at the second one of the personal audio input audio devices and on the second channel in response to the first and second meeting participants speaking at the same time.",
"Recording audio information from a meeting may also include filtering the audio input at the first channel and the second channel to separate speech by the first participant from speech by the second participant. Filtering the audio input may be based on a distance related volume weakening coefficient, signal latency between the personal audio input devices, and/or ambient noise. In the event of double-talk when two or more speakers talk simultaneously for a period of time, the system may initially identify each speaker, and record double-talk on all principal smartphones owned by current speakers.",
"After a double talk episode has ended, the system may attempt clearing each recorded fragment from double-talk by non-owners prior to placing it into the corresponding speaker channel. Such clearing may be facilitated by simultaneous processing of recorded fragments from all principal phones engaged in the double-talk)). Claim 23. Sinkov in view of Diamant discloses the computer-implemented method of claim 21, Sinkov further discloses wherein determining, based on comparing the first plurality of volumes and the second plurality of volumes, that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content is contributed by the first user comprises: determining, based on comparing the first plurality of volumes and the second plurality of volumes, that the first volume captured by the first client device corresponds to a primary speaking volume for the first client device; determining that the first volume corresponds to speech from the first user of the first client device (Parag. [0009] and Parag.",
"[0017-0021]; (The art teaches determining which of a plurality of specific personal audio input audio devices correspond to which specific meeting participants, measuring volume levels at each of the personal audio input devices in response to each of the meeting participants speaking, identifying that a first particular one of the participants is speaking based on relative volume levels at each of the personal audio input devices. The art teaches that once the current speaker is identified, a particular smartphone of the speaker is marked by the system as a principal recording device and the system tracks a corresponding fragment of audio recording by that particular smartphone until a sufficiently long pause when the speaker either stopped talking to change the subject or for other reason or until the current speaker is replaced by another speaker. In either case, the fragment is picked by the system and added to the current channel of the speaker. Each channel of each speaker may therefore include subsequent fragments by a single speaker, uninterrupted by others and separated by pauses (such fragments may of course may be merged during post-processing of the meeting recording) or fragments separated in time by audio fragments from other speakers recorded in their channels)). Sinkov doesn’t explicitly disclose that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content includes the description of the action item; and determining that the segment of the audio content that includes the description of the action item is captured by the first client device in the first volume.",
"However, Diamant discloses that the Page 12 of 18Responsive to Office Action mailed February 24, 2022segment of the audio content that includes the description of the action item; and determining that the segment of the audio content that includes the description of the action item is captured by the first client device in the first volume (Parag. [0052-0053], Parag. [0109], Parag. [0115], and Parag. [0138]; (The art teaches that FIG. 7 is a visual representation of an example output of diarization machine. In FIG. 6, a vertical axis is used to denote WHO (e.g., Bob) is speaking (i.e., identifying the user of the client device); the horizontal axis denotes WHEN (e.g., 30.01 s-34.87 s) that speaker is speaking; and the depth axis denotes from WHERE (e.g., 23°) that speaker is speaking.",
"Diarization machine 132 uses this WHO/WHEN/WHERE information to label corresponding segments 604 of the audio signal(s) 606 under analysis with labels 608. The segments 604 and/or corresponding labels may be output from the diarization machine 132 in any suitable format. The output effectively associates speech with a particular speaker (i.e., identifying the user of the client device) during a conversation among N speakers, and allows the audio signal corresponding to each speech utterance (with WHO/WHEN/WHERE labeling/metadata) to be used for myriad downstream operations. One nonlimiting downstream operation is conversation transcription.",
"FIG. 1B teaches a computerized conference assistant 106 may include a speech recognition machine 130. As shown in FIG. 8, the speech recognition machine 130 may be configured to translate an audio signal of recorded speech (e.g., signals 112, beamformed signal 150, signal 606, and/or segments 604) into text 800. The art also teaches that in some examples, transcribed speech and/or speaker identity information may be gathered by computerized intelligent assistant 1300 in real time, in order to build the transcript in real time, and/or in order to provide notifications to conference participants about the transcribed speech in real time. In some examples, computerized intelligent assistant 1300 may be configured, for a stream of speech audio captured by a microphone, to identify a current speaker and to analyze the speech audio in order to transcribe speech text, substantially in parallel and/or in real time, so that speaker identity and transcribed speech text may be independently available.",
"Accordingly, computerized intelligent assistant 1300 may be able to provide notifications to the conference participants in real time (e.g., for display at companion devices) indicating that another conference participant is currently speaking and including transcribed speech of the other conference participant, even before the other conference participant has finished speaking. The art also teaches that the transcript may be analyzed using any suitable machine learning (ML) and/or artificial intelligence (AI) techniques, wherein such analysis may include, for raw audio observed during a conference, recognizing text corresponding to the raw audio, and recognizing one or more salient features of the text and/or raw audio. Non-limiting examples of salient features that may be recognized by ML and/or AI techniques include 1) an intent (e.g., an intended task of a conference participant), 2) a context (e.g., a task currently being performed by a conference participant), 3) a topic and/or 4) an action item or commitment (e.g., a task that a conference participant promises to perform))). It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify Sinkov to incorporate the teaching of Diamant.",
"This would be convenient to coordinate the conference, by providing a transcript of the conference to conference participants for subsequent review, tracking arrivals and departures of conference participants, providing cues to conference participants during the conference, and/or analyzing the information in order to summarize one or more aspects of the conference for subsequent review (Parag. [0024]). Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Sinkov et al. (Pub. No. US 2019/0200121), hereinafter Sinkov; in view of Diamant (Pub. No. US 2019/0341050), hereinafter Diamant, and in view of Gleim (Pub. No. US 2015/0063553). Claim 22. Sinkov in view of Diamant discloses the computer-implemented method of claim 21, The combination doesn’t explicitly disclose wherein: the first volume captured by the first client device corresponds to a first distance between the first meeting participant and the first client device; and the second volume captured by the second client device corresponds to a second distance between the first meeting participant and the second client device. However, Gleim discloses wherein: the first volume captured by the first client device corresponds to a first distance between the first meeting participant and the first client device; and the second volume captured by the second client device corresponds to a second distance between the first meeting participant and the second client device (Parag.",
"[0051]; (The art teaches that the volume level can tell us how loud someone is talking, but it also tells us how far a speaker is from their physical microphone. For 3D sound conferencing, we intentionally level the sound to remove the information about how far the speaker is from their physical microphone so that we can then use an attenuator to intentionally and negative or positive volume information that communicates the distance between the speaker (speaking participant) and the listener (listening participant) in the mapped room. i.e., the volume corresponds to the distance between the meeting participant and the user device, as equivalent to the applicant’s definition)).",
"It would be obvious to one of ordinary skill in the art at the time before the effective filling date of the claimed invention to modify the combination to incorporate the teaching of Gleim. This would be convenient to enhance virtual learning system in which the participant can feel he or she is really experiencing an actual classroom environment with each user or participant having the ability to distinguish between multiple voices (Parag. [0002]). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Zhao et al. (US 2015/0201082) – Related art in the area of conferencing systems, (Parag.",
"[0003], as the distance between participants using the conference device and the conference device increases, it can become increasingly difficult for remote participants to hear participants using the conference device that are a greater distance from the communication device. Moreover, an apparent volume of participants' voices sharing the conference unit to the remote participant(s) can vary according to a distance each local participant is to the conference device). Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABDELBASST TALIOUA whose telephone number is (571)272-4061. The examiner can normally be reached on Monday-Thursday 7:30 am - 5:30 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Trost can be reached on 571-272-7872. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /A.T./Examiner, Art Unit 2442 /WILLIAM G TROST IV/Supervisory Patent Examiner, Art Unit 2442"
]
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CLOPTON, J. There was no error in tbe refusal to charge tbe jury, at tbe request of defendant, if they believed from tbe evidence that tbe assault was unprovoked by him, and be appeared to be so much menaced at tbe time as to create a reasonable apprehension of danger to bis life, or of grievous bodily barm, be is entitled to an acquittal, provided be could not bave retreated without danger to bis life or person. If it be conceded that tbe hypothesis of the charge sufficiently supposes tbe facts essential to tbe plea of self-defense, it was properly refused on two grounds: Eirst, it assumes as a fact, that an assault was made upon defendant by deceased; which, being disputed, and dependent on conflicting oral testimony, was a question exclusively for tbe jury. A charge which assumes as proved a controverted fact, is an invasion of tbe province of tbe jury, and properly refused. Second, tbe hypothesis is not sustained by the proof. Tbe bill of exceptions purports to set out tbe entire evidence; and it fails to disclose any tending to show, or from which an inference can be drawn, that defendant appeared to be so menaced as to create in tbe mind of a reasonable man an honest belief of present, impending peril, or that be could not bave retreated without danger. Defendant himself is tbe only witness, who testifies to an assault by deceased. Assuming tbe truth of bis testimony, and using bis own language, when be was struck at with tbe axe, be “backed off some fifteen steps and shot him.” Evidently be was at that time beyond tbe reach of tbe axe. There is no pretense that deceased was pursuing, or attempting to pursue him; and no reasons are shown, why be could not bave retreated with safety, so as to bave avoided any necessity to take life, as easily as be escaped a blow with the axe by backing tbe distance of fifteen steps.—Williams v. State, 81 Ala. 1. Affirmed. | 07-19-2022 | [
"CLOPTON, J. There was no error in tbe refusal to charge tbe jury, at tbe request of defendant, if they believed from tbe evidence that tbe assault was unprovoked by him, and be appeared to be so much menaced at tbe time as to create a reasonable apprehension of danger to bis life, or of grievous bodily barm, be is entitled to an acquittal, provided be could not bave retreated without danger to bis life or person. If it be conceded that tbe hypothesis of the charge sufficiently supposes tbe facts essential to tbe plea of self-defense, it was properly refused on two grounds: Eirst, it assumes as a fact, that an assault was made upon defendant by deceased; which, being disputed, and dependent on conflicting oral testimony, was a question exclusively for tbe jury. A charge which assumes as proved a controverted fact, is an invasion of tbe province of tbe jury, and properly refused.",
"Second, tbe hypothesis is not sustained by the proof. Tbe bill of exceptions purports to set out tbe entire evidence; and it fails to disclose any tending to show, or from which an inference can be drawn, that defendant appeared to be so menaced as to create in tbe mind of a reasonable man an honest belief of present, impending peril, or that be could not bave retreated without danger. Defendant himself is tbe only witness, who testifies to an assault by deceased. Assuming tbe truth of bis testimony, and using bis own language, when be was struck at with tbe axe, be “backed off some fifteen steps and shot him.” Evidently be was at that time beyond tbe reach of tbe axe. There is no pretense that deceased was pursuing, or attempting to pursue him; and no reasons are shown, why be could not bave retreated with safety, so as to bave avoided any necessity to take life, as easily as be escaped a blow with the axe by backing tbe distance of fifteen steps.—Williams v. State, 81 Ala. 1.",
"Affirmed."
]
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567 P.2d 923 (1977) Perl SMITH, S. Charlene Smith and Everett Satterfield, Plaintiffs and Respondents, v. Wilbur J. ZEPP, Wesley Farner, C.E. Knowles, and Wolverine Mining, Inc., a Montana Corporation, Defendants and Appellants. No. 13118. Supreme Court of Montana. Submitted April 20, 1977. Decided August 2, 1977. *924 Crowley, Haughey, Hanson & Toole, Stephen Foster argued, Billings, Boone, Karlberg & Haddon, Sam E. Haddon argued, Missoula, for appellant. William R. Taylor, Deer Lodge, Radonich, Brolin & Reardon, John N. Radonich argued, Anaconda, for respondents. HATFIELD, Chief Justice. This is an appeal by defendants from a district court judgment granting forfeiture of a contract for purchase of mining property by defendants and cancellation of a deed to a number of patented and unpatented mining claims. In 1964, plaintiff Perl Smith purchased numerous patented and unpatented mining claims in Granite and Powell Counties known as the "Master Mine". Plaintiff thereafter obtained a personal bank loan and mortgaged the Master Mine property as security. When plaintiff failed to repay the loan, the bank obtained a judgment of foreclosure. The property was sold at a foreclosure sale on May 28, 1971, after which plaintiff's sole interest in the property was a year's statutory right of redemption under section 93-5835, R.C.M. 1947. *925 In late April, 1972, plaintiff met with defendants Zepp and Farner and discussed the sale of the Master Mine. On May 15, 1972, the parties entered into a contract whereby plaintiff agreed to sell, and defendants agreed to purchase, the Master Mine properties. As consideration for plaintiff's granting of his ownership rights in the property to defendants, defendants agreed to pay approximately $69,000 for the redemption of the first mortgage on the Master Mine property, and to pay $31,455 to various creditors of plaintiff. In addition, defendants agreed to pay plaintiff Perl Smith a monthly consultation fee of fifteen percent (15%) of the net operating profit of the Master Mine. The parties contracted that defendants would pay the 15% consultation fee to plaintiff Perl Smith or to his wife, plaintiff Charlene Smith, during their lifetimes; if both plaintiffs predeceased their son, defendants agreed to pay the son a commission of 7 1/2% of the net profits. To insure that the income from the mine, and consequently, the consultation fee or commission, were maximized, defendants agreed to produce an average of 300 yards of material each working day. The material would then be taken to the mine's washing plant where the gravel would be washed from the gold. There was not sufficient machinery at the gold mine to excavate 300 yards of material per day, but defendants agreed to purchase the larger Caterpillar, dragline with three yard bucket, and dump truck necessary to achieve a 300 yard per day production level. The parties provided in the contract that in lieu of the consultation fees or commissions to be paid from the net mining profits, they might at a later date negotiate a fixed monthly payment. In case of any dispute between the parties as to the provisions of the contract, plaintiff Perl Smith and defendants agreed to submit the controversy to arbitration. The contract also contained a provision which provided for a reversion of the property to the seller if defendants defaulted in their "payment of said property", and failed to cure their default within thirty days from receiving the seller's notice of default. After plaintiff and defendants signed the contract, plaintiff fully performed his contract obligations. Plaintiff gave to defendants a quitclaim deed for all his interests in the Master Mine property and the buildings thereon. The buildings consisted of a main building with dining room, kitchen, bedrooms, showers, five furnished cottages, an assay building, and several other shops, light plants, storage and machinery repair buildings. The land consisted of approximately 360 acres of patented and 1,680 acres of unpatented mining claims. According to a local appraiser, the mining land was also valuable for recreation, timber and livestock grazing. The appraiser set the value of the land on February 12, 1968, at approximately $148,000, excluding mineral rights. According to the report of a geophysicist who took random samples of the earth at the mine site, the property contained an estimated $615 million worth of gold and other noble metals. Defendants paid the approximately $69,000 necessary to redeem the property from the mortgage foreclosure and paid the approximately $31,455 of plaintiff Perl Smith's debts, as they had agreed to do in the contract. Defendants also successfully prepared the property for mining, by clearing the mine road of snow, repairing damaged equipment, and building dams and settling ponds so as to comply with state and federal environmental regulations. Defendants thereafter, however, failed to meet the contract condition that required them to produce 300 yards of material each day. It was defendants' failure to satisfy this contractual provision which gave rise to plaintiff's successful lawsuit in district court, and defendants' appeal to this Court. At the time that defendants commenced mining operations on July 16, 1972, they had not acquired the equipment necessary to remove 300 yards of material each day. Rather than using the three yard or bigger dragline that defendants had agreed to obtain, defendants provided a 3/4 dragline for excavation of gravel. The gravel was then hauled from the excavation pit to the washing *926 plant in a truck which held five yards of material. Defendants hauled six to eight truckloads of material per day, so that total daily mining production averaged between thirty and forty yards. In August, 1972, defendants twice negotiated without success for the purchase of used large draglines. Defendants also ran advertisements in various Montana newspapers and talked to heavy equipment dealers regarding the purchase of a Caterpillar. These efforts likewise were unsuccessful, and defendants continued to mine only thirty to forty yards per day until late August, 1972. On August 30, 1972, the man whom defendants had hired to operate the Master Mine resigned from his job because he felt that the equipment at the mine was grossly inadequate. At that time, after little more than one month of mining thirty to forty yards of material daily, defendants ceased their mining operation. For the entire month of mining, defendants recovered one ounce of gold. Because expenses of operation far exceeded mining income, there was no net profit, and plaintiff received nothing under the contract provision granting him a 15% commission fee from net mining profits. On October 29, 1972, plaintiff Perl Smith and defendant C.E. Knowles attempted without success to negotiate a monthly payment to plaintiff to replace the contract's percentage of net profit commission clause. This matter was not submitted for arbitration under the contract's arbitration clause. Plaintiff Perl Smith sent defendants notice of default in a letter dated March 15, 1973. Plaintiff stated in the letter that defendants were in breach of the contract for failure to mine 300 yards of material per working day. Plaintiff alleged that if 300 yards per day were mined, much gold and silver would be recovered and a net operating profit would be received from which plaintiff could receive his monthly percentage commission payment. Defendants failed to cure the alleged default within the thirty days allowed in the contract. Plaintiffs on November 13, 1973, filed a complaint in district court, Granite County, alleging that defendants had breached their contract and asking that defendants forfeit all rights under the contract and all money paid pursuant to the contract, and that title to the Master Mine property be quieted in plaintiffs. On December 9, 1974, the case was tried in district court before the Honorable Robert J. Boyd, sitting without a jury. The district judge found that the 300 yard per day production requirement was a basic term of the contract which required strict compliance by defendants. Defendants' failure to produce 300 yards of material per day was caused, the judge found, by their failure to obtain adequate equipment. The judge concluded that defendants' failure to produce more than fifty yards of material per day when the mine was worked, and their total failure to mine the claims in 1973 and 1974 was a substantial failure of performance. The judge concluded, as a matter of law, that the contract required that defendants' failure to mine 300 yards of material per day would result in cancellation of the contract, cancellation of the deed transferring the property from Perl Smith to defendants, and reversion of the title to the mining claims to plaintiffs Perl Smith and Everett Satterfield. Defendants assert that the district court erred in ordering a forfeiture of their rights under the contract, which resulted in the loss to defendants of both the mining property and $96,000 in contract payments. Defendants claim that the evidence failed to show that a significant breach of the agreement occurred. Defendants next assert that, even if they did significantly breach the contract, forfeiture was an improper remedy. Defendants' claim that the evidence failed to support a finding that they significantly breached the contract is without merit. The evidence at trial clearly showed that defendants failed to meet the express contract requirement that they produce 300 yards of material per working day. Defendants do not assert that they performed their contractual duty; rather, they claim that their failure to perform was excused *927 due to impossibility of performance and commercial frustration. The general rule is that, where a party to a contract obligates himself to a legal and possible performance, he must perform in accordance with the contract terms. Brown v. First Fed. Savings and Loan Ass'n, 154 Mont. 79, 460 P.2d 97. Defendants, however, would have had no duty to perform their contractual promise to produce 300 yards of material daily if, due to facts of which neither plaintiffs nor defendants had reason to know, the promise was impossible of performance at the time the contract was made. 2 Rest. Contracts, section 456. Impossibility encompasses "not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved." 2 Rest. Contracts, section 454. Defendants assert that it was a basic assumption of all the parties to the contract that the Master Mine contained substantial gold, and that when their aborted efforts to mine yielded only about one ounce of gold, their failure to produce 300 yards of material daily was excused. Defendants contend that even if they had produced the 300 yards per day, there would have been no profit from which plaintiffs could receive a commission, because there was no gold. Defendants therefore concluded that it was impossible to operate the mine at a profit. Defendants cite 2 Rest. Contracts, section 460, which says: "(1) Where the existence of a specific thing * * * is, either by the terms of a bargain or in the contemplation of both parties, necessary for the performance of a promise in the bargain, a duty to perform the promise (a) never arises if at the time the bargain is made the existence of the thing * * * within the time for seasonable performance is impossible * *." The flaw in defendants' argument, however, is that they never proved that the "specific thing", gold, did not exist in the Master Mine properties in sufficient quantities to make a placer mining operation profitable. Plaintiffs had no duty to prove that marketable quantities of gold did exist in the Master Mine. Rather, the burden of proving impossibility rested on the party asserting the defense. Hensler v. City of Los Angeles, 124 Cal. App. 2d 71, 268 P.2d 12. Defendant Wilbur Zepp testified that only one ounce of gold was recovered. Yet defendants presented no expert testimony to establish that production of merely 30-40 yards of material per day for one month was conclusive evidence that substantial quantities of gold did not exist on the property. Defendants did not introduce any evidence of geologists' or geophysicists' reports as to the minerals contained in the land. Furthermore, a geophysicist's report prepared at the request of plaintiff Perl Smith prior to the sale of the property indicated that the Master Mine contained valuable gold and other noble metals. Defendants, during the one month in which they operated the mine, were unable to achieve a 300 yard per day production because their mining equipment was insufficient. "The party pleading impossibility must demonstrate that it took virtually every action within its powers to perform its duties under the contract." Kama Rippa Music, Inc. v. Schekeryk, 2 Cir., 510 F.2d 837. Defendants explained that they advertised in the state newspapers and contacted two private parties and one dealer concerning larger equipment, but failed to explain why other sources in nearby states were not contacted. A final reason why the failure of defendants to satisfy the contract provision requiring 300 yards of production per day was not excused due to impossibility is that the possible absence of gold at the mine was a risk of the bargain. It is uncertain whether or not an appreciable amount of gold exists at the Master Mine. In a gold mining venture such as this one, however, where defendants failed to inspect the mine or geologically test the soil before purchase, the possibility existed that the rewards might range from lucrative to nonexistent. Defendants could have hired geologists to study the mineral content in the Master *928 Mine prior to signing their contract with plaintiff rather than relying solely on geological reports prepared several years previously for Perl Smith. This they failed to do. 2 Rest. Contracts, section 456, excuses a promisor from performing a contractual promise due to impossibility only when the promisor and promisee had no reason to know of the impossibility when they contracted. In this case, the possibility of an unprofitable mine should have been foreseen by defendants and specifically provided for in the contract. It is possible that the Master Mine properties contain so trifling an amount of gold that further mining would be economically disastrous. If this is the case, defendants did not prove it at trial. If such is the case, however, defendants merely made a bad bargain by not providing for this very foreseeable contingency in the contract or by themselves inspecting and testing the mining property before the purchase. This Court may not rewrite the terms of the contract in this case. Rather, we follow the law as stated by this Court in Hein v. Fox, 126 Mont. 514, 520-521, 254 P.2d 1076, 1079: "Courts can give no solace where parties to a contract find themselves minus expected profit through failure to exercise care in drawing up such contract. What this court said in Hinerman v. Baldwin, 67 Mont. 417, 433, 215 P. 1103, 1108, well applies here, viz: `* * * The court has no right to make a contract for the parties different from that actually entered into by them. * * * "`* * * "`Whether the plaintiff made a good or a bad bargain is of no concern to the court. * * * Merely because the terms of the contract now appear unreasonable or burdensome affords no reason to permit him to avoid his contract. * * "`* * * The duty of the court is to enforce contracts, not to make new ones for the parties, however unwise the terms may appear.'" The doctrine of commercial frustration is also inapplicable to the facts of this case. To relieve a promisor from a duty to perform under this doctrine, the expected value of the performance must be destroyed by an unforeseeable, intervening event. Lloyd v. Murphy, 25 Cal. 2d 48, 153 P.2d 47. The possibility that there is negligible gold at the Master Mine was foreseeable at the time the parties contracted. Furthermore, no intervening event has reduced the quantity of gold at the mine. Defendants are not excused from breaching their contractual duty to mine 300 yards of material daily. The remaining issue on appeal is the propriety of forfeiture as a remedy for defendants' breach. The district judge based his judgment that the defendants should forfeit their payments and rights under the contract on the contract provision which stated in pertinent part that "In case of default by purchaser in payment of said property, it shall immediately revert to the seller, Perl Smith, provided first seller gives purchaser thirty (30) days' written notice of any default and purchaser shall then have thirty (30) days from receipt of said notice to remedy said default * * *." Plaintiff Perl Smith did give defendants written notice of their default in failing to produce 300 yards of material per day. Defendants did fail to remedy the default within thirty days of receiving the notice. Defendants' default, however, was not of the type that would trigger the contract's forfeiture provision. Montana law does not favor forfeitures. Table Mtn. Farms v. Burton, 128 Mont. 434, 278 P.2d 213; State ex rel. Green v. Bird, 62 Mont. 408, 205 P. 241. Section 58-212, R.C.M. 1947, provides: "A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created." This Court has consistently given section 58-212 and its predecessor statutes an expansive interpretation, enforcing forfeiture provisions only in situations where "the strict letter of the contract requires it" and language of forfeiture is "plainly expressed". Finley v. School District No. 1, 51 Mont. 411, 416, 153 P. 1010, 1012 (1915); *929 Lipsker v. Billings Boot Shop, 129 Mont. 420, 288 P.2d 660; Cedar Creek Oil & Gas Co. v. Archer, 112 Mont. 477, 117 P.2d 265. Interpreting the forfeiture clause against plaintiffs, the parties for whose benefit the provision was created, it can hardly be said that the contract requires forfeiture for failure to produce 300 yards of material each working day. The provision required reversion of the property to the seller "In case of default by purchaser in payment of said property * * *." Defendants made all the "payments for the property" that were required under the contract. These payments included furnishing the redemption price for the property, and paying various debts of Perl Smith. The production clause on which defendants defaulted, directly related to a consultation fee or commission to be paid from the net mining profits. The forfeiture clause, strictly interpreted, did not relate to this contract provision or to any provision other than the property payment clauses. Section 58-212, R.C.M. 1947, is borrowed from Section 1442, Cal.Civ.Code. The California Court of Appeals refused to declare that mine buyers' contract rights and purchase moneys were forfeited in a case in which the buyers failed to perform a contract obligation to mine for a minimum amount of hours per month. The court stated that "if an agreement can be reasonably interpreted so as to avoid forfeiture, it is the duty of the court to avoid it." Nelson v. Schoettgen, 1 Cal. App. 2d 418, 36 P.2d 665. Plaintiffs claim that the clause is not a forfeiture clause, but is a reversion clause for which the rules regarding forfeitures are inapplicable. A forfeiture by any other name is still a forfeiture. There has been a forfeiture where parties such as defendants lose all the money they have paid on a contract, as well as all their rights and interests in the property. Although plaintiffs and defendants have themselves provided in their contract for all future contract disputes to be decided by arbitration, this Court cannot order that the question of damages be submitted to arbitration, pursuant to this contract clause. The parties may agree that this specific issue of the "value" of damages be submitted to binding arbitration, and then they will be bound by the arbitrators' decision. School District No. 1 v. Globe & Republic Ins. Co., 146 Mont. 208, 404 P.2d 889. The arbitration provision as written, however, was nearly identical to the arbitration clause which this Court held to be unenforceable in Green v. Wolff, 140 Mont. 413, 372 P.2d 427. Any contract provision which states that all future contract disputes shall be submitted to arbitration is void under section 13-806, R.C.M. 1947, which invalidates any contract provision restricting access to the courts. Although arbitration may be the most speedy and economical means available to parties for a binding resolution of their disputes, this Court cannot enforce as broadly worded an arbitration clause as exists in this contract until the legislature amends or repeals section 13-806. The legislature intended, in section 17-301, R.C.M. 1947, to insure that one who is injured by another's wrongful breach of contract has a right to recover such damages as will make him whole again. Bos v. Dolajak, 167 Mont. 1, 534 P.2d 1258. The contract in this case provided that plaintiff Perl Smith, his wife, or son would receive consultation fees or commissions for a limited period of time, measured by how long they should live. Plaintiffs can never recover those lost years of fees or commissions from net profits except by way of damages. The proper measure of damages so as to make the seller in this case "whole again", therefore, is the amount which the district judge finds that plaintiff Perl Smith would have received in consultation fee royalties from net mining profits if defendants had produced 300 yards of material each working day since the property was made ready to be mined in 1972, plus interest from the date the royalties would have accrued. See Freeport Sulphur Co. v. American Sulpher Royalty Co., 117 Tex. 439, 6 S.W.2d 1039. *930 Plaintiffs have the burden of proving, by competent evidence, the amount of damages which they suffered due to defendants' failure to produce 300 yards of material during each working day. Rigney v. Swingley, 112 Mont. 104, 113 P.2d 344. Plaintiffs will not be denied recovery merely because the damages in this case are difficult to ascertain, as long as they prove damages with reasonable certainty. In Brown v. Homestake Exploration Co., 98 Mont. 305, 337, 39 P.2d 168, 179, this Court stated plaintiff must provide the district judge with: "A reasonable basis for computation and the best evidence obtainable under the circumstances and which will enable [the judge] to arrive at a reasonably close estimate of the loss * * *." (Bracketed material substituted.) Such evidence may include, but is not limited to, the testimony of geologists and geophysicists who test the mine's soil, the past history of the mine, the cost of mining 300 cubic yards of gravel per day and the value of gold and other noble metals in the soil during the time that defendants failed to mine. Although plaintiffs in their complaint asked solely for forfeiture as a remedy for defendants' contract breach, the trial judge must grant such other relief as is proper under the proven facts of the case. Rule 54(c), M.R.Civ.P., which is identical with Rule 54(c), Fed.R.Civ.P., provides: "* * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." In Garland v. Garland, 10th Cir., 165 F.2d 131, the plaintiff, in her complaint, asked solely for rescission and cancellation of a contract. The court held that Rule 54(c), Fed.R.Civ.P., authorized the trial court to grant the plaintiff damages, as well as specific performance, even though the plaintiff did not request that relief in her pleadings. In the case at bar, plaintiffs have proven that defendants breached their contract and have made a case for possible damages, though this was not the relief they requested. Although they are not entitled to forfeiture, under Rule 54(c), M.R.Civ.P., the trial judge has the duty to give plaintiffs a hearing on damages, the remedy to which they are entitled under the facts proven at trial. See also: Columbia Nastri & Carta Carbone v. Columbia Mfg. Co., 2 Cir., 367 F.2d 308; Hutches v. Renfroe, 5th Cir., 200 F.2d 337. The district judge's findings that defendants breached their contract is affirmed. The judge's ruling that defendants forfeited all rights and money paid under the contract is reversed. The cause is remanded, with instructions to proceed in accordance with this opinion. DALY, HARRISON and SHEA, JJ., concur. | 06-04-2013 | [
"567 P.2d 923 (1977) Perl SMITH, S. Charlene Smith and Everett Satterfield, Plaintiffs and Respondents, v. Wilbur J. ZEPP, Wesley Farner, C.E. Knowles, and Wolverine Mining, Inc., a Montana Corporation, Defendants and Appellants. No. 13118. Supreme Court of Montana. Submitted April 20, 1977. Decided August 2, 1977. *924 Crowley, Haughey, Hanson & Toole, Stephen Foster argued, Billings, Boone, Karlberg & Haddon, Sam E. Haddon argued, Missoula, for appellant. William R. Taylor, Deer Lodge, Radonich, Brolin & Reardon, John N. Radonich argued, Anaconda, for respondents. HATFIELD, Chief Justice. This is an appeal by defendants from a district court judgment granting forfeiture of a contract for purchase of mining property by defendants and cancellation of a deed to a number of patented and unpatented mining claims. In 1964, plaintiff Perl Smith purchased numerous patented and unpatented mining claims in Granite and Powell Counties known as the \"Master Mine\". Plaintiff thereafter obtained a personal bank loan and mortgaged the Master Mine property as security. When plaintiff failed to repay the loan, the bank obtained a judgment of foreclosure.",
"The property was sold at a foreclosure sale on May 28, 1971, after which plaintiff's sole interest in the property was a year's statutory right of redemption under section 93-5835, R.C.M. 1947. *925 In late April, 1972, plaintiff met with defendants Zepp and Farner and discussed the sale of the Master Mine. On May 15, 1972, the parties entered into a contract whereby plaintiff agreed to sell, and defendants agreed to purchase, the Master Mine properties. As consideration for plaintiff's granting of his ownership rights in the property to defendants, defendants agreed to pay approximately $69,000 for the redemption of the first mortgage on the Master Mine property, and to pay $31,455 to various creditors of plaintiff. In addition, defendants agreed to pay plaintiff Perl Smith a monthly consultation fee of fifteen percent (15%) of the net operating profit of the Master Mine. The parties contracted that defendants would pay the 15% consultation fee to plaintiff Perl Smith or to his wife, plaintiff Charlene Smith, during their lifetimes; if both plaintiffs predeceased their son, defendants agreed to pay the son a commission of 7 1/2% of the net profits.",
"To insure that the income from the mine, and consequently, the consultation fee or commission, were maximized, defendants agreed to produce an average of 300 yards of material each working day. The material would then be taken to the mine's washing plant where the gravel would be washed from the gold. There was not sufficient machinery at the gold mine to excavate 300 yards of material per day, but defendants agreed to purchase the larger Caterpillar, dragline with three yard bucket, and dump truck necessary to achieve a 300 yard per day production level. The parties provided in the contract that in lieu of the consultation fees or commissions to be paid from the net mining profits, they might at a later date negotiate a fixed monthly payment. In case of any dispute between the parties as to the provisions of the contract, plaintiff Perl Smith and defendants agreed to submit the controversy to arbitration. The contract also contained a provision which provided for a reversion of the property to the seller if defendants defaulted in their \"payment of said property\", and failed to cure their default within thirty days from receiving the seller's notice of default.",
"After plaintiff and defendants signed the contract, plaintiff fully performed his contract obligations. Plaintiff gave to defendants a quitclaim deed for all his interests in the Master Mine property and the buildings thereon. The buildings consisted of a main building with dining room, kitchen, bedrooms, showers, five furnished cottages, an assay building, and several other shops, light plants, storage and machinery repair buildings. The land consisted of approximately 360 acres of patented and 1,680 acres of unpatented mining claims. According to a local appraiser, the mining land was also valuable for recreation, timber and livestock grazing. The appraiser set the value of the land on February 12, 1968, at approximately $148,000, excluding mineral rights. According to the report of a geophysicist who took random samples of the earth at the mine site, the property contained an estimated $615 million worth of gold and other noble metals.",
"Defendants paid the approximately $69,000 necessary to redeem the property from the mortgage foreclosure and paid the approximately $31,455 of plaintiff Perl Smith's debts, as they had agreed to do in the contract. Defendants also successfully prepared the property for mining, by clearing the mine road of snow, repairing damaged equipment, and building dams and settling ponds so as to comply with state and federal environmental regulations. Defendants thereafter, however, failed to meet the contract condition that required them to produce 300 yards of material each day. It was defendants' failure to satisfy this contractual provision which gave rise to plaintiff's successful lawsuit in district court, and defendants' appeal to this Court. At the time that defendants commenced mining operations on July 16, 1972, they had not acquired the equipment necessary to remove 300 yards of material each day. Rather than using the three yard or bigger dragline that defendants had agreed to obtain, defendants provided a 3/4 dragline for excavation of gravel. The gravel was then hauled from the excavation pit to the washing *926 plant in a truck which held five yards of material. Defendants hauled six to eight truckloads of material per day, so that total daily mining production averaged between thirty and forty yards.",
"In August, 1972, defendants twice negotiated without success for the purchase of used large draglines. Defendants also ran advertisements in various Montana newspapers and talked to heavy equipment dealers regarding the purchase of a Caterpillar. These efforts likewise were unsuccessful, and defendants continued to mine only thirty to forty yards per day until late August, 1972. On August 30, 1972, the man whom defendants had hired to operate the Master Mine resigned from his job because he felt that the equipment at the mine was grossly inadequate. At that time, after little more than one month of mining thirty to forty yards of material daily, defendants ceased their mining operation. For the entire month of mining, defendants recovered one ounce of gold. Because expenses of operation far exceeded mining income, there was no net profit, and plaintiff received nothing under the contract provision granting him a 15% commission fee from net mining profits. On October 29, 1972, plaintiff Perl Smith and defendant C.E.",
"Knowles attempted without success to negotiate a monthly payment to plaintiff to replace the contract's percentage of net profit commission clause. This matter was not submitted for arbitration under the contract's arbitration clause. Plaintiff Perl Smith sent defendants notice of default in a letter dated March 15, 1973. Plaintiff stated in the letter that defendants were in breach of the contract for failure to mine 300 yards of material per working day. Plaintiff alleged that if 300 yards per day were mined, much gold and silver would be recovered and a net operating profit would be received from which plaintiff could receive his monthly percentage commission payment. Defendants failed to cure the alleged default within the thirty days allowed in the contract.",
"Plaintiffs on November 13, 1973, filed a complaint in district court, Granite County, alleging that defendants had breached their contract and asking that defendants forfeit all rights under the contract and all money paid pursuant to the contract, and that title to the Master Mine property be quieted in plaintiffs. On December 9, 1974, the case was tried in district court before the Honorable Robert J. Boyd, sitting without a jury.",
"The district judge found that the 300 yard per day production requirement was a basic term of the contract which required strict compliance by defendants. Defendants' failure to produce 300 yards of material per day was caused, the judge found, by their failure to obtain adequate equipment. The judge concluded that defendants' failure to produce more than fifty yards of material per day when the mine was worked, and their total failure to mine the claims in 1973 and 1974 was a substantial failure of performance.",
"The judge concluded, as a matter of law, that the contract required that defendants' failure to mine 300 yards of material per day would result in cancellation of the contract, cancellation of the deed transferring the property from Perl Smith to defendants, and reversion of the title to the mining claims to plaintiffs Perl Smith and Everett Satterfield. Defendants assert that the district court erred in ordering a forfeiture of their rights under the contract, which resulted in the loss to defendants of both the mining property and $96,000 in contract payments. Defendants claim that the evidence failed to show that a significant breach of the agreement occurred. Defendants next assert that, even if they did significantly breach the contract, forfeiture was an improper remedy. Defendants' claim that the evidence failed to support a finding that they significantly breached the contract is without merit. The evidence at trial clearly showed that defendants failed to meet the express contract requirement that they produce 300 yards of material per working day. Defendants do not assert that they performed their contractual duty; rather, they claim that their failure to perform was excused *927 due to impossibility of performance and commercial frustration.",
"The general rule is that, where a party to a contract obligates himself to a legal and possible performance, he must perform in accordance with the contract terms. Brown v. First Fed. Savings and Loan Ass'n, 154 Mont. 79, 460 P.2d 97. Defendants, however, would have had no duty to perform their contractual promise to produce 300 yards of material daily if, due to facts of which neither plaintiffs nor defendants had reason to know, the promise was impossible of performance at the time the contract was made.",
"2 Rest. Contracts, section 456. Impossibility encompasses \"not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.\" 2 Rest. Contracts, section 454. Defendants assert that it was a basic assumption of all the parties to the contract that the Master Mine contained substantial gold, and that when their aborted efforts to mine yielded only about one ounce of gold, their failure to produce 300 yards of material daily was excused. Defendants contend that even if they had produced the 300 yards per day, there would have been no profit from which plaintiffs could receive a commission, because there was no gold. Defendants therefore concluded that it was impossible to operate the mine at a profit. Defendants cite 2 Rest. Contracts, section 460, which says: \"(1) Where the existence of a specific thing * * * is, either by the terms of a bargain or in the contemplation of both parties, necessary for the performance of a promise in the bargain, a duty to perform the promise (a) never arises if at the time the bargain is made the existence of the thing * * * within the time for seasonable performance is impossible * *.\"",
"The flaw in defendants' argument, however, is that they never proved that the \"specific thing\", gold, did not exist in the Master Mine properties in sufficient quantities to make a placer mining operation profitable. Plaintiffs had no duty to prove that marketable quantities of gold did exist in the Master Mine. Rather, the burden of proving impossibility rested on the party asserting the defense. Hensler v. City of Los Angeles, 124 Cal. App. 2d 71, 268 P.2d 12. Defendant Wilbur Zepp testified that only one ounce of gold was recovered. Yet defendants presented no expert testimony to establish that production of merely 30-40 yards of material per day for one month was conclusive evidence that substantial quantities of gold did not exist on the property.",
"Defendants did not introduce any evidence of geologists' or geophysicists' reports as to the minerals contained in the land. Furthermore, a geophysicist's report prepared at the request of plaintiff Perl Smith prior to the sale of the property indicated that the Master Mine contained valuable gold and other noble metals. Defendants, during the one month in which they operated the mine, were unable to achieve a 300 yard per day production because their mining equipment was insufficient. \"The party pleading impossibility must demonstrate that it took virtually every action within its powers to perform its duties under the contract.\" Kama Rippa Music, Inc. v. Schekeryk, 2 Cir., 510 F.2d 837. Defendants explained that they advertised in the state newspapers and contacted two private parties and one dealer concerning larger equipment, but failed to explain why other sources in nearby states were not contacted.",
"A final reason why the failure of defendants to satisfy the contract provision requiring 300 yards of production per day was not excused due to impossibility is that the possible absence of gold at the mine was a risk of the bargain. It is uncertain whether or not an appreciable amount of gold exists at the Master Mine. In a gold mining venture such as this one, however, where defendants failed to inspect the mine or geologically test the soil before purchase, the possibility existed that the rewards might range from lucrative to nonexistent. Defendants could have hired geologists to study the mineral content in the Master *928 Mine prior to signing their contract with plaintiff rather than relying solely on geological reports prepared several years previously for Perl Smith. This they failed to do. 2 Rest. Contracts, section 456, excuses a promisor from performing a contractual promise due to impossibility only when the promisor and promisee had no reason to know of the impossibility when they contracted.",
"In this case, the possibility of an unprofitable mine should have been foreseen by defendants and specifically provided for in the contract. It is possible that the Master Mine properties contain so trifling an amount of gold that further mining would be economically disastrous. If this is the case, defendants did not prove it at trial. If such is the case, however, defendants merely made a bad bargain by not providing for this very foreseeable contingency in the contract or by themselves inspecting and testing the mining property before the purchase. This Court may not rewrite the terms of the contract in this case. Rather, we follow the law as stated by this Court in Hein v. Fox, 126 Mont. 514, 520-521, 254 P.2d 1076, 1079: \"Courts can give no solace where parties to a contract find themselves minus expected profit through failure to exercise care in drawing up such contract.",
"What this court said in Hinerman v. Baldwin, 67 Mont. 417, 433, 215 P. 1103, 1108, well applies here, viz: `* * * The court has no right to make a contract for the parties different from that actually entered into by them. * * * \"`* * * \"`Whether the plaintiff made a good or a bad bargain is of no concern to the court. * * * Merely because the terms of the contract now appear unreasonable or burdensome affords no reason to permit him to avoid his contract. * * \"`* * * The duty of the court is to enforce contracts, not to make new ones for the parties, however unwise the terms may appear.'\" The doctrine of commercial frustration is also inapplicable to the facts of this case. To relieve a promisor from a duty to perform under this doctrine, the expected value of the performance must be destroyed by an unforeseeable, intervening event.",
"Lloyd v. Murphy, 25 Cal. 2d 48, 153 P.2d 47. The possibility that there is negligible gold at the Master Mine was foreseeable at the time the parties contracted. Furthermore, no intervening event has reduced the quantity of gold at the mine. Defendants are not excused from breaching their contractual duty to mine 300 yards of material daily. The remaining issue on appeal is the propriety of forfeiture as a remedy for defendants' breach. The district judge based his judgment that the defendants should forfeit their payments and rights under the contract on the contract provision which stated in pertinent part that \"In case of default by purchaser in payment of said property, it shall immediately revert to the seller, Perl Smith, provided first seller gives purchaser thirty (30) days' written notice of any default and purchaser shall then have thirty (30) days from receipt of said notice to remedy said default * * *.\" Plaintiff Perl Smith did give defendants written notice of their default in failing to produce 300 yards of material per day.",
"Defendants did fail to remedy the default within thirty days of receiving the notice. Defendants' default, however, was not of the type that would trigger the contract's forfeiture provision. Montana law does not favor forfeitures. Table Mtn. Farms v. Burton, 128 Mont. 434, 278 P.2d 213; State ex rel. Green v. Bird, 62 Mont. 408, 205 P. 241. Section 58-212, R.C.M. 1947, provides: \"A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created.\" This Court has consistently given section 58-212 and its predecessor statutes an expansive interpretation, enforcing forfeiture provisions only in situations where \"the strict letter of the contract requires it\" and language of forfeiture is \"plainly expressed\".",
"Finley v. School District No. 1, 51 Mont. 411, 416, 153 P. 1010, 1012 (1915); *929 Lipsker v. Billings Boot Shop, 129 Mont. 420, 288 P.2d 660; Cedar Creek Oil & Gas Co. v. Archer, 112 Mont. 477, 117 P.2d 265. Interpreting the forfeiture clause against plaintiffs, the parties for whose benefit the provision was created, it can hardly be said that the contract requires forfeiture for failure to produce 300 yards of material each working day. The provision required reversion of the property to the seller \"In case of default by purchaser in payment of said property * * *.\" Defendants made all the \"payments for the property\" that were required under the contract. These payments included furnishing the redemption price for the property, and paying various debts of Perl Smith. The production clause on which defendants defaulted, directly related to a consultation fee or commission to be paid from the net mining profits.",
"The forfeiture clause, strictly interpreted, did not relate to this contract provision or to any provision other than the property payment clauses. Section 58-212, R.C.M. 1947, is borrowed from Section 1442, Cal.Civ.Code. The California Court of Appeals refused to declare that mine buyers' contract rights and purchase moneys were forfeited in a case in which the buyers failed to perform a contract obligation to mine for a minimum amount of hours per month. The court stated that \"if an agreement can be reasonably interpreted so as to avoid forfeiture, it is the duty of the court to avoid it.\" Nelson v. Schoettgen, 1 Cal. App. 2d 418, 36 P.2d 665. Plaintiffs claim that the clause is not a forfeiture clause, but is a reversion clause for which the rules regarding forfeitures are inapplicable. A forfeiture by any other name is still a forfeiture. There has been a forfeiture where parties such as defendants lose all the money they have paid on a contract, as well as all their rights and interests in the property.",
"Although plaintiffs and defendants have themselves provided in their contract for all future contract disputes to be decided by arbitration, this Court cannot order that the question of damages be submitted to arbitration, pursuant to this contract clause. The parties may agree that this specific issue of the \"value\" of damages be submitted to binding arbitration, and then they will be bound by the arbitrators' decision. School District No. 1 v. Globe & Republic Ins. Co., 146 Mont. 208, 404 P.2d 889. The arbitration provision as written, however, was nearly identical to the arbitration clause which this Court held to be unenforceable in Green v. Wolff, 140 Mont. 413, 372 P.2d 427. Any contract provision which states that all future contract disputes shall be submitted to arbitration is void under section 13-806, R.C.M. 1947, which invalidates any contract provision restricting access to the courts. Although arbitration may be the most speedy and economical means available to parties for a binding resolution of their disputes, this Court cannot enforce as broadly worded an arbitration clause as exists in this contract until the legislature amends or repeals section 13-806.",
"The legislature intended, in section 17-301, R.C.M. 1947, to insure that one who is injured by another's wrongful breach of contract has a right to recover such damages as will make him whole again. Bos v. Dolajak, 167 Mont. 1, 534 P.2d 1258. The contract in this case provided that plaintiff Perl Smith, his wife, or son would receive consultation fees or commissions for a limited period of time, measured by how long they should live. Plaintiffs can never recover those lost years of fees or commissions from net profits except by way of damages. The proper measure of damages so as to make the seller in this case \"whole again\", therefore, is the amount which the district judge finds that plaintiff Perl Smith would have received in consultation fee royalties from net mining profits if defendants had produced 300 yards of material each working day since the property was made ready to be mined in 1972, plus interest from the date the royalties would have accrued. See Freeport Sulphur Co. v. American Sulpher Royalty Co., 117 Tex.",
"439, 6 S.W.2d 1039. *930 Plaintiffs have the burden of proving, by competent evidence, the amount of damages which they suffered due to defendants' failure to produce 300 yards of material during each working day. Rigney v. Swingley, 112 Mont. 104, 113 P.2d 344. Plaintiffs will not be denied recovery merely because the damages in this case are difficult to ascertain, as long as they prove damages with reasonable certainty. In Brown v. Homestake Exploration Co., 98 Mont. 305, 337, 39 P.2d 168, 179, this Court stated plaintiff must provide the district judge with: \"A reasonable basis for computation and the best evidence obtainable under the circumstances and which will enable [the judge] to arrive at a reasonably close estimate of the loss * * *.\" (Bracketed material substituted.) Such evidence may include, but is not limited to, the testimony of geologists and geophysicists who test the mine's soil, the past history of the mine, the cost of mining 300 cubic yards of gravel per day and the value of gold and other noble metals in the soil during the time that defendants failed to mine. Although plaintiffs in their complaint asked solely for forfeiture as a remedy for defendants' contract breach, the trial judge must grant such other relief as is proper under the proven facts of the case. Rule 54(c), M.R.Civ.P., which is identical with Rule 54(c), Fed.R.Civ.P., provides: \"* * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.\"",
"In Garland v. Garland, 10th Cir., 165 F.2d 131, the plaintiff, in her complaint, asked solely for rescission and cancellation of a contract. The court held that Rule 54(c), Fed.R.Civ.P., authorized the trial court to grant the plaintiff damages, as well as specific performance, even though the plaintiff did not request that relief in her pleadings. In the case at bar, plaintiffs have proven that defendants breached their contract and have made a case for possible damages, though this was not the relief they requested.",
"Although they are not entitled to forfeiture, under Rule 54(c), M.R.Civ.P., the trial judge has the duty to give plaintiffs a hearing on damages, the remedy to which they are entitled under the facts proven at trial. See also: Columbia Nastri & Carta Carbone v. Columbia Mfg. Co., 2 Cir., 367 F.2d 308; Hutches v. Renfroe, 5th Cir., 200 F.2d 337. The district judge's findings that defendants breached their contract is affirmed. The judge's ruling that defendants forfeited all rights and money paid under the contract is reversed. The cause is remanded, with instructions to proceed in accordance with this opinion. DALY, HARRISON and SHEA, JJ., concur."
]
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ON PETITION FOR REHEARING [October 28, 1993] Petition for rehearing denied. | 10-01-2021 | [
"ON PETITION FOR REHEARING [October 28, 1993] Petition for rehearing denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5084714/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 Reported in 243 N.W. 434. An alternative writ of mandamus was directed to the district court of Ramsey county and the Honorable Richard D. O'Brien, one of the judges thereof, requiring that court to make findings of fact, conclusions of law, and order for judgment in a matter tried therein on appeal from the probate court. May 27, 1904, the probate court of Ramsey county committed Anton G. Preis to the state hospital for the insane at Rochester, Minnesota. Later he was transferred to Hastings, where he is now confined. No question is raised about the regularity of the proceedings by which he was committed. March 10, 1930, the relator applied to the probate court of Ramsey county to be restored to capacity, claiming that he had recovered his reason. A hearing was had, and the application was denied. An appeal was taken to the district court, where the application was again denied, but a new trial was thereafter granted. Upon the new trial the court and respondent judge thereof heard the evidence for and against the petitioner and at the close of the testimony came to the conclusion that neither the probate nor district court had jurisdiction to restore the petitioner to capacity or to release him from the state hospital. It was the opinion of the trial court that the right to grant *Page 434 such release rested solely in the superintendent of the hospital and the state board of control under G. S. 1923 (1 Mason, 1927) § 4524, which empowers the superintendent to discharge any patient certified by him to have recovered his sanity unless that patient is charged with or convicted of some criminal offense. "In all other cases, patients shall be discharged only by the board of control." It is the contention of the relator that the jurisdiction of the probate court is prescribed by the constitution "over the estates of deceased persons and persons under guardianship," and that the legislature cannot diminish or impair the jurisdiction so conferred. 1. We are of the opinion that the jurisdiction over persons under guardianship conferred on the probate court by the constitution by necessary implication carries with it the right upon proper application to pass upon the mental capacity of persons confined by its commitments in hospitals for the insane and to terminate the control of the public official or officials acting as the common guardian of the committed person. Under our constitution it is beyond the power of the legislature to diminish or impair this jurisdiction either by endeavoring to prevent its exercise or by creating exclusive coordinate authority elsewhere. Lading v. City of Duluth,153 Minn. 464, 190 N.W. 981; Public Service Elec. Co. v. Board of Public Utility Commrs. 88 N.J.L. 603, 96 A. 1013. "The care and custody of insane persons was, at the date of the constitution, recognized as within the general matter of guardianship * * *. The jurisdiction of probate courts in the matter of guardianship of insane persons is as indisputable as its jurisdiction in the matter of the guardianship of minors or any other class. * * * In effect, the superintendent of the hospital for insane is designated * * * as a common guardian for insane persons. * * * They are committed to his custody precisely as an insane person is committed to the custody of a private guardian appointed by the court." State ex rel. Chesley v. Wilcox, 24 Minn. 143, 148, 149. It is true that in the case of Northfoss v. Welch, 116 Minn. 62,68, 133 N.W. 82, 36 L.R.A.(N.S.) 578, Ann. Cas. 1913A, 1257, this court *Page 435 held that the section in R. L. 1905 which corresponds to G. S. 1923 (2 Mason, 1927) § 8929, related only to persons under guardianship and did not furnish a remedy to a patient in an insane hospital who, having no guardian, applied for restoration to capacity; but we are of the opinion that in the absence of any statutory provision whatever, the probate court, in the exercise of its general powers as conferred upon it by the constitution, may hear an application by such a patient for restoration to capacity. While the legislature may regulate the practice in probate court, it cannot deprive that court of its constitutional jurisdiction by failing to make provision by statute for the exercise thereof. It should be borne in mind that this is not a case where an acquittal on the ground of insanity has resulted in confinement in an asylum, as in State ex rel. Sundberg v. District Court,185 Minn. 396, 241 N.W. 39. 2. We come now to the contention of the respondent that the relator had in adequate remedy either by habeas corpus or by appeal. In Northfoss v. Welch, 116 Minn. 62, 133 N.W. 82,36 L.R.A.(N.S.) 578, Ann. Cas. 1913A, 1257, it was held that habeas corpus was a proper remedy where it was conceded that the patient had recovered his sanity; but the decision was expressly limited to cases where the detention had become illegal and the hospital authorities had refused to discharge a patient on grounds other than those of his health. In the case at bar the sanity of the patient is in issue; and it was a proper question for the probate court to pass upon and for the district court upon appeal. Was there an adequate remedy by appeal? In State ex rel. Martin v. Superior Court, 101 Wash. 81, 172 P. 257, 258,4 A.L.R. 572, the supreme court of the state of Washington had before it a case where the relator had filed his petition to be restored to sanity, and the superior court, which in that state exercises probate jurisdiction, held that it was without power to hear and determine the petition because the legislature had repealed a statute which had conferred upon the superior court an express power to hear such matters and had conferred upon the superintendent of the state *Page 436 hospital the power to discharge patients who had recovered their sanity. In that case the superior court sustained a demurrer to the petition on the ground of lack of jurisdiction, and the supreme court, in reversing the lower court on the merits, held that mandamus was proper and that the remedy by appeal was inadequate. The question before us is one of the inherent jurisdiction of the probate court and of the district court on appeal and not a question as to whether those courts have acquired a right to proceed within the limits of an admitted jurisdiction. The Washington court said in part [101 Wash. 85]: "It is fundamental that a higher court will not control the judicial acts of an inferior court. It will not invade the realm. Its prime function is to review for error. The first consideration, then, must be to determine the character of the act of the inferior court. Is a judgment of dismissal based upon a denial of jurisdiction over a subject-matter a judicial act in the sense that it is a judgment which ought to be reviewed on appeal? "A dismissal under the mistaken belief that the court has no jurisdiction is in no sense a judicial act for it rests upon a disclaimer of the judicial function. The court has neither heard nor determined. Neither the law nor the facts are affected in the slightest degree, and appeals being for the correction of judicial errors, errors of discretion or of the judicial mind, it follows that one entitled should have resort to some method by which the court can be set in motion. The court has done nothing which is either judicial or discretionary. It has refused to do either. Its judgment is nullius filius, a void thing, binding no one, a legal non-entity." In the case of State ex rel. Prall v. District Court,126 Minn. 501, 148 N.W. 463, Ann. Cas. 1915D, 198, this court held, where the question arose at the commencement of the trial and there was no discretion in the district court to decline jurisdiction, that mandamus was an appropriate remedy, although it was possible to have reviewed the court's decision by appeal. It seems to us in a case like that at bar, where the parties have spent several days in *Page 437 introducing evidence on the question of the petitioner's sanity and where at the close of such evidence the court concludes that it has no inherent jurisdiction to dispose of the case, that the remedy by appeal would be inadequate and that mandamus should lie to compel the court to finish the trial by appropriate findings, conclusion, and order. Let a peremptory writ issue requiring such action. | 07-05-2016 | [
"1 Reported in 243 N.W. 434. An alternative writ of mandamus was directed to the district court of Ramsey county and the Honorable Richard D. O'Brien, one of the judges thereof, requiring that court to make findings of fact, conclusions of law, and order for judgment in a matter tried therein on appeal from the probate court. May 27, 1904, the probate court of Ramsey county committed Anton G. Preis to the state hospital for the insane at Rochester, Minnesota. Later he was transferred to Hastings, where he is now confined. No question is raised about the regularity of the proceedings by which he was committed. March 10, 1930, the relator applied to the probate court of Ramsey county to be restored to capacity, claiming that he had recovered his reason.",
"A hearing was had, and the application was denied. An appeal was taken to the district court, where the application was again denied, but a new trial was thereafter granted. Upon the new trial the court and respondent judge thereof heard the evidence for and against the petitioner and at the close of the testimony came to the conclusion that neither the probate nor district court had jurisdiction to restore the petitioner to capacity or to release him from the state hospital. It was the opinion of the trial court that the right to grant *Page 434 such release rested solely in the superintendent of the hospital and the state board of control under G. S. 1923 (1 Mason, 1927) § 4524, which empowers the superintendent to discharge any patient certified by him to have recovered his sanity unless that patient is charged with or convicted of some criminal offense. \"In all other cases, patients shall be discharged only by the board of control.\" It is the contention of the relator that the jurisdiction of the probate court is prescribed by the constitution \"over the estates of deceased persons and persons under guardianship,\" and that the legislature cannot diminish or impair the jurisdiction so conferred.",
"1. We are of the opinion that the jurisdiction over persons under guardianship conferred on the probate court by the constitution by necessary implication carries with it the right upon proper application to pass upon the mental capacity of persons confined by its commitments in hospitals for the insane and to terminate the control of the public official or officials acting as the common guardian of the committed person. Under our constitution it is beyond the power of the legislature to diminish or impair this jurisdiction either by endeavoring to prevent its exercise or by creating exclusive coordinate authority elsewhere. Lading v. City of Duluth,153 Minn. 464, 190 N.W. 981; Public Service Elec. Co. v. Board of Public Utility Commrs.",
"88 N.J.L. 603, 96 A. 1013. \"The care and custody of insane persons was, at the date of the constitution, recognized as within the general matter of guardianship * * *. The jurisdiction of probate courts in the matter of guardianship of insane persons is as indisputable as its jurisdiction in the matter of the guardianship of minors or any other class. * * * In effect, the superintendent of the hospital for insane is designated * * * as a common guardian for insane persons. * * * They are committed to his custody precisely as an insane person is committed to the custody of a private guardian appointed by the court.\" State ex rel.",
"Chesley v. Wilcox, 24 Minn. 143, 148, 149. It is true that in the case of Northfoss v. Welch, 116 Minn. 62,68, 133 N.W. 82, 36 L.R.A.(N.S.) 578, Ann. Cas. 1913A, 1257, this court *Page 435 held that the section in R. L. 1905 which corresponds to G. S. 1923 (2 Mason, 1927) § 8929, related only to persons under guardianship and did not furnish a remedy to a patient in an insane hospital who, having no guardian, applied for restoration to capacity; but we are of the opinion that in the absence of any statutory provision whatever, the probate court, in the exercise of its general powers as conferred upon it by the constitution, may hear an application by such a patient for restoration to capacity. While the legislature may regulate the practice in probate court, it cannot deprive that court of its constitutional jurisdiction by failing to make provision by statute for the exercise thereof.",
"It should be borne in mind that this is not a case where an acquittal on the ground of insanity has resulted in confinement in an asylum, as in State ex rel. Sundberg v. District Court,185 Minn. 396, 241 N.W. 39. 2. We come now to the contention of the respondent that the relator had in adequate remedy either by habeas corpus or by appeal. In Northfoss v. Welch, 116 Minn. 62, 133 N.W. 82,36 L.R.A.(N.S.) 578, Ann. Cas. 1913A, 1257, it was held that habeas corpus was a proper remedy where it was conceded that the patient had recovered his sanity; but the decision was expressly limited to cases where the detention had become illegal and the hospital authorities had refused to discharge a patient on grounds other than those of his health. In the case at bar the sanity of the patient is in issue; and it was a proper question for the probate court to pass upon and for the district court upon appeal. Was there an adequate remedy by appeal?",
"In State ex rel. Martin v. Superior Court, 101 Wash. 81, 172 P. 257, 258,4 A.L.R. 572, the supreme court of the state of Washington had before it a case where the relator had filed his petition to be restored to sanity, and the superior court, which in that state exercises probate jurisdiction, held that it was without power to hear and determine the petition because the legislature had repealed a statute which had conferred upon the superior court an express power to hear such matters and had conferred upon the superintendent of the state *Page 436 hospital the power to discharge patients who had recovered their sanity. In that case the superior court sustained a demurrer to the petition on the ground of lack of jurisdiction, and the supreme court, in reversing the lower court on the merits, held that mandamus was proper and that the remedy by appeal was inadequate. The question before us is one of the inherent jurisdiction of the probate court and of the district court on appeal and not a question as to whether those courts have acquired a right to proceed within the limits of an admitted jurisdiction.",
"The Washington court said in part [101 Wash. 85]: \"It is fundamental that a higher court will not control the judicial acts of an inferior court. It will not invade the realm. Its prime function is to review for error. The first consideration, then, must be to determine the character of the act of the inferior court. Is a judgment of dismissal based upon a denial of jurisdiction over a subject-matter a judicial act in the sense that it is a judgment which ought to be reviewed on appeal? \"A dismissal under the mistaken belief that the court has no jurisdiction is in no sense a judicial act for it rests upon a disclaimer of the judicial function. The court has neither heard nor determined. Neither the law nor the facts are affected in the slightest degree, and appeals being for the correction of judicial errors, errors of discretion or of the judicial mind, it follows that one entitled should have resort to some method by which the court can be set in motion.",
"The court has done nothing which is either judicial or discretionary. It has refused to do either. Its judgment is nullius filius, a void thing, binding no one, a legal non-entity.\" In the case of State ex rel. Prall v. District Court,126 Minn. 501, 148 N.W. 463, Ann. Cas. 1915D, 198, this court held, where the question arose at the commencement of the trial and there was no discretion in the district court to decline jurisdiction, that mandamus was an appropriate remedy, although it was possible to have reviewed the court's decision by appeal. It seems to us in a case like that at bar, where the parties have spent several days in *Page 437 introducing evidence on the question of the petitioner's sanity and where at the close of such evidence the court concludes that it has no inherent jurisdiction to dispose of the case, that the remedy by appeal would be inadequate and that mandamus should lie to compel the court to finish the trial by appropriate findings, conclusion, and order. Let a peremptory writ issue requiring such action."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3510438/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0504505
Decision Date: 02/17/05 Archive Date: 02/24/05
DOCKET NO. 03-21 719 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to an initial disability rating in excess of 10
percent for service-connected tinnitus, to include
entitlement to a separate evaluation for each ear.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jonathan Taylor, Counsel
INTRODUCTION
The veteran served on active duty from July 1949 to December
1952 and from September 1955 to August 1956. The veteran has
additional service, which he has reported as being from
February 1954 to September 1955, although those dates have
not been verified.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an August 2002 rating decision of the
Togus, Maine, Department of Veterans Affairs (VA) Regional
Office (RO), which granted entitlement to service connection
for tinnitus and assigned a 10 percent disability rating
effective from September 6, 2000.
FINDING OF FACT
The veteran is in receipt of a 10 percent evaluation for
tinnitus, the maximum schedular evaluation assignable by law.
CONCLUSION OF LAW
Separate 10 percent ratings for tinnitus in each ear are not
authorized. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. §§ 3.321,
4.14, 4.25(b), 4.87, Diagnostic Code 6260 (2004); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994); VAOPCGPREC 2-2003 (May
22, 2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
At a June 2002 VA audio examination, the veteran was noted to
have bilateral tinnitus due to noise exposure during his
military service.
Service connection for tinnitus was granted by rating action
dated in August 2002, and a 10 percent disability evaluation
was assigned under the provisions of 38 C.F.R. § 4.87,
Diagnostic Code 6260, effective from September 6, 2001.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (2004). The Rating
Schedule is primarily a guide in the evaluation of disability
resulting from all types of diseases and injuries encountered
as a result of or incident to military service. The ratings
are intended to compensate, as far as can practicably be
determined, the average impairment of earning capacity
resulting from such diseases and injuries and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. § 4.1 (2004). In considering the severity
of a disability, it is essential to trace the medical history
of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2004).
Consideration of the whole-recorded history is necessary so
that a rating may accurately reflect the elements of
disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1
Vet. App. 282 (1991).
Where an increase in the disability rating is at issue, the
present level of the veteran's disability is the primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, this claim is based on the assignment of an initial
rating for a disability following an initial award of service
connection for tinnitus. In Fenderson v. West, 12 Vet. App.
119 (1999), the United States Court of Appeals for Veterans
Claims (Court) held that the rule articulated in Francisco
did not apply to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability. Id.; Francisco, 7 Vet. App. at 58.
The veteran's service-connected tinnitus has been rated under
38 C.F.R. § 4.87, Diagnostic Code 6260, which provides that a
maximum 10 percent evaluation is warranted for tinnitus.
During the pendency of this appeal, regulatory changes
amended the Rating Schedule, 38 C.F.R. Part 4 (2002),
including the rating criteria for evaluating diseases and
injuries of the ear. See 68 Fed. Reg. 25822-25823 (May 14,
2003). This amendment was effective June 13, 2003.
When a law or regulation changes after a claim has been filed
but before the administrative appeal process has been
concluded, VA must determine whether the law or regulation
identifies the type of claims to which it applies. If the
statute or regulation is silent, VA must determine whether
applying the new provision to claims that were pending when
it took effect would produce genuinely retroactive effects.
The new provision should not be applied to the claim if it
would produce retroactive effects. See VAOPGCPREC 7-2003
(Nov. 19, 2003) ("[S]tatutes or regulations liberalizing the
criteria for entitlement to compensation . . . may be applied
to pending claims because their effect would be limited to
matters of prospective benefits."). However, where the
amended regulations expressly provide an effective date and
do not allow for retroactive application, the veteran is not
entitled to consideration of the amended regulations prior to
the established effective date. Green v. Brown, 10 Vet. App.
111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West
2002) (where compensation is awarded pursuant to any Act or
administrative issue, the effective date of such award or
increase shall be fixed in accordance with the facts found
but shall not be earlier than the effective date of the Act
or administrative issue). For any date prior to June 13,
2003, the Board cannot apply the revised regulations.
The RO, in the July 2003 Statement of the Case (SOC),
provided the old and the amended rating criteria for tinnitus
to the veteran and his representative. Therefore, the
veteran and his representative were given notice of the old
and new regulations and have had an opportunity to submit
evidence and argument related to both sets of regulations.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
The Board finds that, in this case, neither the old nor the
amended rating criteria are more favorable to the veteran's
claim. The most recent amendment to Diagnostic Code 6260,
definitively stating that only a single 10 percent disability
rating is authorized for tinnitus, merely restated the law as
it existed both prior to and after the amendment. See 68
Fed. Reg. at 25822; see also VAOPGCPREC 2-03, para. 4. (May
22, 2003). The Board concludes that, regardless of which set
of rating criteria are applied, the veteran is not entitled
to an initial disability rating in excess of 10 percent for
service-connected tinnitus, to include entitlement to a
separate evaluation for each ear.
Under the old regulations, in effect prior to June 13, 2003,
a 10 percent disability rating is warranted for recurrent
tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002). A
separate evaluation could be combined with an evaluation
under diagnostic codes 6100, 6200, 6204, or other diagnostic
codes except when the tinnitus supported an evaluation under
one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic
Code 6260, Note (2002).
Effective June 13, 2003, the two additional notes were added
to the diagnostic code for recurrent tinnitus. Only a single
evaluation for recurrent tinnitus is to be assigned
regardless of whether the sound is perceived in one ear, both
ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code
6260, Note (2) (2004). Objective tinnitus (in which the
sound is audible to other people and has a definable cause
that may or may not be pathologic) is not to be evaluated
under diagnostic code 6260, but must be evaluated as part of
any underlying condition causing it. 38 C.F.R. § 4.87,
Diagnostic Code 6260, Note (3) (2004).
On a claim for an original or an increased rating, the
claimant will generally be presumed to be seeking the maximum
benefit allowed by law and regulation, and it follows that
such a claim remains in controversy where less than the
maximum available benefit is awarded. AB v. Brown, 6 Vet.
App. 35, 38 (1993). If a veteran is at the maximum
evaluation and no other criteria are applicable, there is no
case in controversy. In order for a claim to proceed, there
must be a benefit. In this case, the maximum rating allowed
for tinnitus under the applicable diagnostic code in both the
old and the amended criteria is 10 percent. 38 C.F.R. §
4.87, Diagnostic Code 6260 (2002); 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2004). As such, a higher schedular
rating cannot be granted.
The veteran and his representative assert that the veteran
experiences tinnitus in both ears and that he is therefore
entitled to a separate 10 percent rating for tinnitus for
each ear under Diagnostic Code 6260. In a claim for the
evaluation of tinnitus, the Board is required to discuss the
applicability of 38 C.F.R. § 4.25(b), which states, "Except
as otherwise provided in this schedule, the disabilities
arising from a single disease entity, e.g., arthritis,
multiple sclerosis, cerebrovascular accidence, etc., are to
be rated separately[,] as are all other disabling conditions,
if any," see Wanner v. Principi, 17 Vet. App. 4, 13 (2003);
however, the provisions of 38 C.F.R. § 4.25 are inapplicable
to the facts of this case.
It has been VA's policy for several years that where tinnitus
is to be rated as a disability in its own right, only one 10
percent rating is assignable for the tinnitus, whether the
sound is perceived in one ear, both ears, or in the head.
See 67 Fed. Reg. 59033 (Sept. 19, 2002); 68 Fed. Reg. 25822,
25823 (May 14, 2003). Moreover, effective June 13, 2003, the
notes accompanying 38 C.F.R. § 4.87, Diagnostic Code 6260 now
require the assignment of a single evaluation for bilateral
tinnitus. VA's Secretary specifically rejected the argument
that 38 C.F.R. § 4.25(b) authorizes the assignment of
separate compensable evaluations for bilateral tinnitus by
codifying the policy of assigning only a single evaluation
for bilateral tinnitus. See 68 Fed. Reg. 25822, 25823 (May
14, 2003) (". . . [T]o rate each ear separately would be a
violation of the principle of 38 C.F.R. § 4.25(b) that a
'single disease entity' is to be given a single rating.").
The VA General Counsel held that under the old rating
criteria, in effect prior to June 13, 2003, Diagnostic Code
6260 authorizes a single 10 percent disability rating for
tinnitus, regardless of whether tinnitus is perceived as
unilateral, bilateral, or simply in the head. VAOPGCPREC 2-
03 (". . . [T]he perception of noise is the disability
identified in true tinnitus, and the source of this perceived
noise is not in either or both ears. The undifferentiated
nature of the source of the noise that is tinnitus is the
primary basis for VA's practice, as reflected in the notice
of proposed rulemaking, of rating tinnitus as a single
disease entity." Id. at para. 4.). It was further held
that separate ratings for tinnitus identified as being in
both ears may not be assigned under either version of
Diagnostic Code 6260, or any other diagnostic code.
VAOPGCPREC 2-03. Precedent opinions of the General Counsel
are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002);
Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000).
Regarding the revised rating criteria, effective June 13,
2003, Diagnostic Code 6260 was amended to state more
explicitly that only a single 10 percent evaluation will be
assigned for tinnitus, whether it is perceived in one ear,
both ears, or somewhere else in the head. See 38 C.F.R. §
4.87, Diagnostic Code 6260, Note (2) (2004).
The Rating Schedule explicitly prohibits pyramiding of
disability evaluations under 38 C.F.R. § 4.14 (2004). VA
considers tinnitus a single disability, whether heard in one
ear, both ears, or somewhere undefined in the head; no matter
where the condition is manifested, the average impairment on
earning capacity is the same. Therefore, a single rating for
tinnitus is warranted. VA has provided for separate ratings
for "like organs" when it has intended to, and if separate
ratings in the case of bilateral tinnitus were warranted, it
would have been so provided. See, e.g., 38 C.F.R. § 4.115b,
Diagnostic Code 7523 (2004) (providing a disability rating
for atrophy of one testis and for both testes); 38 C.F.R. §
4.115b, Diagnostic Code 7524 (2004) (providing a disability
rating for removal of one testis and for removal of both
testes); 38 C.F.R. § 4.116, Diagnostic Code 7626 (2004)
(providing a disability rating for surgery on one breast and
for surgery on both breasts). While the Rating Schedule
provides for separate rating for some other ear disabilities
(see generally 38 C.F.R. § 4.87, Diagnostic Codes 6200-6210
(2004)), it specifically does not address a "bilateral"
condition in Diagnostic Code 6260 for tinnitus. Tinnitus has
been defined by the Court as a ringing, buzzing noise in the
ears. See YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v.
Brown, 7 Vet. App. 471 (1995); see also VAOPGCPREC 2-03
("[T]innitus is the perception of sound in the absence of an
acoustic stimulus." Id. at para. 2.).
Thus, the Board finds that either tinnitus is present or it
is not, and that a single evaluation is appropriate whether
it is perceived as being bilateral or unilateral. See
VAOPGCPREC 2-03 ("True . . . tinnitus does not originate in
the inner ear, although damage to the inner ear may be a
precursor of subjective tinnitus. It is theorized that in
true tinnitus the brain creates phantom sensations to replace
missing inputs from the damaged inner ear, similar to the
brain's creation of phantom pain in amputated limbs. . . .
True tinnitus, i.e., the perception of sound in the absence
of an external stimulus, appears to arise from the brain
rather than the ears." Id. at para. 3 (citations
omitted).). Although 38 C.F.R. § 4.14 is specifically
directed towards prohibiting the evaluation of a single
disability under multiple diagnostic codes, it logically
follows that this section similarly prohibits multiple
recoveries for a condition that is medically defined as
single disability under a single diagnostic code. Otherwise,
the clear intent of the regulation to avoid pyramiding would
be obviated.
The Board therefore concludes that, under both the old and
the amended rating criteria, Diagnostic Code 6260 provides
for a maximum 10 percent rating for recurrent tinnitus,
whether perceived as unilateral or bilateral. See 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2004); see also Cromley v. Brown, 7
Vet. App. 376, 378 (1995) (10 percent is the highest level
possible under the regulations for tinnitus); Smith v. Brown,
7 Vet. App. 255, 259 (1994) (there is no statutory,
regulatory, or case authority which requires the Board to
make a determination of 10 percent for tinnitus for each
ear).
Consideration must be given to assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b)(1)
(2004). Under that regulation, an extraschedular evaluation
may be assigned in exceptional cases where the schedular
evaluations are found to be inadequate. The governing norm
in such cases is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.
The evidence of record, however, does not suggest the
existence of such an unusual disability picture that would
render the regular schedule inadequate. The evidence does
not indicate that the veteran's service-connected tinnitus
interferes with his employment or requires hospitalization.
Based on the evidence of record and the veteran's
contentions, the Board finds that the criteria for submission
for assignment of an extraschedular rating pursuant to 38
C.F.R. § 3.321(b)(1) are not met. Accordingly, an evaluation
in excess of 10 percent for tinnitus on a schedular or
extraschedular basis is not warranted.
In this case, the facts are not in dispute, and application
of the law to the facts is dispositive. Where there is no
entitlement under the law to the benefit sought, the appeal
must be terminated. See Sabonis v. Brown, 6 Vet. App. 426,
430 (1994). ("[W]here the law and not the evidence is
dispositive, the claim should be denied or the appeal to the
[Board] terminated because of the absence of legal merit or
the lack of entitlement under the law."). Accordingly, the
claim for a rating in excess of 10 percent, to include
entitlement to a separate evaluation for each ear, at any
time since the effective date of the grant of service
connection, must be denied as a matter of law.
Veterans Claims Assistance Act of 2000 (VCAA)
VA has a duty to assist the veteran in the development of
facts pertinent to his claims. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
veteran as to the information and evidence necessary to
substantiate a claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A.
§§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004).
Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 38 C.F.R. § 3.159(a)(5) (2004).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004).
A VA General Counsel opinion has concluded that the notice
provisions of 38 U.S.C.A. § 5103(a) do not apply to claims
such as this one because there is no legal basis for separate
disability evaluations for each ear for tinnitus. See
VAOPGCPREC 2-2004 (Mar. 9, 2004) (VA is not required to
provide notice of the information and evidence necessary to
substantiate a claim for separate disability ratings for each
ear for service-connected tinnitus because there is no
information or evidence that could substantiate the claim, as
entitlement to separate ratings is barred by current
Diagnostic Code 6260 and by the previous versions of
Diagnostic Code 6260 as interpreted by a prior precedent
opinion of the General Counsel (see VAOPGCPREC 2-2003)). See
also VAOPGCPREC 5-2004 (June 23, 2004). Accordingly, no
further discussion of VA's actions and development conducted
to comply with the VCAA is required.
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.
In the present case, there is no reasonable possibility that
any assistance from VA would aid the veteran in
substantiating his claim because, as explained, current law
prohibits the assignment of separate ratings for each ear for
tinnitus. Accordingly, the Board finds that VA is not
required to assist the veteran in the development of this
claim. See also Sabonis, 6 Vet. App. at 430 (in cases where
the law is dispositive of the claim, the claim should be
denied due to a lack of entitlement under the law).
ORDER
Entitlement to an initial disability rating in excess of 10
percent for service-connected tinnitus, to include
entitlement to a separate evaluation for each ear, is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 02-17-2005 | [
"Citation Nr: 0504505 Decision Date: 02/17/05 Archive Date: 02/24/05 DOCKET NO. 03-21 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus, to include entitlement to a separate evaluation for each ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Taylor, Counsel INTRODUCTION The veteran served on active duty from July 1949 to December 1952 and from September 1955 to August 1956.",
"The veteran has additional service, which he has reported as being from February 1954 to September 1955, although those dates have not been verified. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2002 rating decision of the Togus, Maine, Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for tinnitus and assigned a 10 percent disability rating effective from September 6, 2000. FINDING OF FACT The veteran is in receipt of a 10 percent evaluation for tinnitus, the maximum schedular evaluation assignable by law. CONCLUSION OF LAW Separate 10 percent ratings for tinnitus in each ear are not authorized. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.",
"§ 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. §§ 3.321, 4.14, 4.25(b), 4.87, Diagnostic Code 6260 (2004); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); VAOPCGPREC 2-2003 (May 22, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION At a June 2002 VA audio examination, the veteran was noted to have bilateral tinnitus due to noise exposure during his military service. Service connection for tinnitus was granted by rating action dated in August 2002, and a 10 percent disability evaluation was assigned under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6260, effective from September 6, 2001. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2004). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.",
"§ 4.1 (2004). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2004). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for tinnitus. In Fenderson v. West, 12 Vet. App.",
"119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Id. ; Francisco, 7 Vet. App. at 58. The veteran's service-connected tinnitus has been rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides that a maximum 10 percent evaluation is warranted for tinnitus. During the pendency of this appeal, regulatory changes amended the Rating Schedule, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating diseases and injuries of the ear. See 68 Fed. Reg. 25822-25823 (May 14, 2003). This amendment was effective June 13, 2003.",
"When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must determine whether the law or regulation identifies the type of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. The new provision should not be applied to the claim if it would produce retroactive effects. See VAOPGCPREC 7-2003 (Nov. 19, 2003) (\"[S]tatutes or regulations liberalizing the criteria for entitlement to compensation . . . may be applied to pending claims because their effect would be limited to matters of prospective benefits.\"). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 2002) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue). For any date prior to June 13, 2003, the Board cannot apply the revised regulations. The RO, in the July 2003 Statement of the Case (SOC), provided the old and the amended rating criteria for tinnitus to the veteran and his representative. Therefore, the veteran and his representative were given notice of the old and new regulations and have had an opportunity to submit evidence and argument related to both sets of regulations.",
"See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that, in this case, neither the old nor the amended rating criteria are more favorable to the veteran's claim. The most recent amendment to Diagnostic Code 6260, definitively stating that only a single 10 percent disability rating is authorized for tinnitus, merely restated the law as it existed both prior to and after the amendment. See 68 Fed. Reg. at 25822; see also VAOPGCPREC 2-03, para. 4. (May 22, 2003). The Board concludes that, regardless of which set of rating criteria are applied, the veteran is not entitled to an initial disability rating in excess of 10 percent for service-connected tinnitus, to include entitlement to a separate evaluation for each ear. Under the old regulations, in effect prior to June 13, 2003, a 10 percent disability rating is warranted for recurrent tinnitus. 38 C.F.R.",
"§ 4.87, Diagnostic Code 6260 (2002). A separate evaluation could be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic codes except when the tinnitus supported an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2002). Effective June 13, 2003, the two additional notes were added to the diagnostic code for recurrent tinnitus. Only a single evaluation for recurrent tinnitus is to be assigned regardless of whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2004). Objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be evaluated under diagnostic code 6260, but must be evaluated as part of any underlying condition causing it. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (3) (2004).",
"On a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). If a veteran is at the maximum evaluation and no other criteria are applicable, there is no case in controversy. In order for a claim to proceed, there must be a benefit.",
"In this case, the maximum rating allowed for tinnitus under the applicable diagnostic code in both the old and the amended criteria is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2004). As such, a higher schedular rating cannot be granted. The veteran and his representative assert that the veteran experiences tinnitus in both ears and that he is therefore entitled to a separate 10 percent rating for tinnitus for each ear under Diagnostic Code 6260. In a claim for the evaluation of tinnitus, the Board is required to discuss the applicability of 38 C.F.R. § 4.25(b), which states, \"Except as otherwise provided in this schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accidence, etc., are to be rated separately[,] as are all other disabling conditions, if any,\" see Wanner v. Principi, 17 Vet. App. 4, 13 (2003); however, the provisions of 38 C.F.R. § 4.25 are inapplicable to the facts of this case.",
"It has been VA's policy for several years that where tinnitus is to be rated as a disability in its own right, only one 10 percent rating is assignable for the tinnitus, whether the sound is perceived in one ear, both ears, or in the head. See 67 Fed. Reg. 59033 (Sept. 19, 2002); 68 Fed. Reg. 25822, 25823 (May 14, 2003). Moreover, effective June 13, 2003, the notes accompanying 38 C.F.R. § 4.87, Diagnostic Code 6260 now require the assignment of a single evaluation for bilateral tinnitus. VA's Secretary specifically rejected the argument that 38 C.F.R. § 4.25(b) authorizes the assignment of separate compensable evaluations for bilateral tinnitus by codifying the policy of assigning only a single evaluation for bilateral tinnitus. See 68 Fed. Reg.",
"25822, 25823 (May 14, 2003) (\". . . [T]o rate each ear separately would be a violation of the principle of 38 C.F.R. § 4.25(b) that a 'single disease entity' is to be given a single rating.\"). The VA General Counsel held that under the old rating criteria, in effect prior to June 13, 2003, Diagnostic Code 6260 authorizes a single 10 percent disability rating for tinnitus, regardless of whether tinnitus is perceived as unilateral, bilateral, or simply in the head. VAOPGCPREC 2- 03 (\". . . [T]he perception of noise is the disability identified in true tinnitus, and the source of this perceived noise is not in either or both ears. The undifferentiated nature of the source of the noise that is tinnitus is the primary basis for VA's practice, as reflected in the notice of proposed rulemaking, of rating tinnitus as a single disease entity.\" Id.",
"at para. 4.). It was further held that separate ratings for tinnitus identified as being in both ears may not be assigned under either version of Diagnostic Code 6260, or any other diagnostic code. VAOPGCPREC 2-03. Precedent opinions of the General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002); Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000). Regarding the revised rating criteria, effective June 13, 2003, Diagnostic Code 6260 was amended to state more explicitly that only a single 10 percent evaluation will be assigned for tinnitus, whether it is perceived in one ear, both ears, or somewhere else in the head. See 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2004). The Rating Schedule explicitly prohibits pyramiding of disability evaluations under 38 C.F.R. § 4.14 (2004). VA considers tinnitus a single disability, whether heard in one ear, both ears, or somewhere undefined in the head; no matter where the condition is manifested, the average impairment on earning capacity is the same.",
"Therefore, a single rating for tinnitus is warranted. VA has provided for separate ratings for \"like organs\" when it has intended to, and if separate ratings in the case of bilateral tinnitus were warranted, it would have been so provided. See, e.g., 38 C.F.R. § 4.115b, Diagnostic Code 7523 (2004) (providing a disability rating for atrophy of one testis and for both testes); 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2004) (providing a disability rating for removal of one testis and for removal of both testes); 38 C.F.R. § 4.116, Diagnostic Code 7626 (2004) (providing a disability rating for surgery on one breast and for surgery on both breasts).",
"While the Rating Schedule provides for separate rating for some other ear disabilities (see generally 38 C.F.R. § 4.87, Diagnostic Codes 6200-6210 (2004)), it specifically does not address a \"bilateral\" condition in Diagnostic Code 6260 for tinnitus. Tinnitus has been defined by the Court as a ringing, buzzing noise in the ears. See YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v. Brown, 7 Vet. App. 471 (1995); see also VAOPGCPREC 2-03 (\"[T]innitus is the perception of sound in the absence of an acoustic stimulus.\" Id. at para. 2.).",
"Thus, the Board finds that either tinnitus is present or it is not, and that a single evaluation is appropriate whether it is perceived as being bilateral or unilateral. See VAOPGCPREC 2-03 (\"True . . . tinnitus does not originate in the inner ear, although damage to the inner ear may be a precursor of subjective tinnitus. It is theorized that in true tinnitus the brain creates phantom sensations to replace missing inputs from the damaged inner ear, similar to the brain's creation of phantom pain in amputated limbs.",
". . . True tinnitus, i.e., the perception of sound in the absence of an external stimulus, appears to arise from the brain rather than the ears.\" Id. at para. 3 (citations omitted).). Although 38 C.F.R. § 4.14 is specifically directed towards prohibiting the evaluation of a single disability under multiple diagnostic codes, it logically follows that this section similarly prohibits multiple recoveries for a condition that is medically defined as single disability under a single diagnostic code. Otherwise, the clear intent of the regulation to avoid pyramiding would be obviated. The Board therefore concludes that, under both the old and the amended rating criteria, Diagnostic Code 6260 provides for a maximum 10 percent rating for recurrent tinnitus, whether perceived as unilateral or bilateral. See 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002); 38 C.F.R.",
"§ 4.87, Diagnostic Code 6260 (2004); see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995) (10 percent is the highest level possible under the regulations for tinnitus); Smith v. Brown, 7 Vet. App. 255, 259 (1994) (there is no statutory, regulatory, or case authority which requires the Board to make a determination of 10 percent for tinnitus for each ear). Consideration must be given to assignment of an extraschedular evaluation under 38 C.F.R.",
"§ 3.321(b)(1) (2004). Under that regulation, an extraschedular evaluation may be assigned in exceptional cases where the schedular evaluations are found to be inadequate. The governing norm in such cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The evidence of record, however, does not suggest the existence of such an unusual disability picture that would render the regular schedule inadequate. The evidence does not indicate that the veteran's service-connected tinnitus interferes with his employment or requires hospitalization. Based on the evidence of record and the veteran's contentions, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.",
"Accordingly, an evaluation in excess of 10 percent for tinnitus on a schedular or extraschedular basis is not warranted. In this case, the facts are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be terminated. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (\"[W]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the [Board] terminated because of the absence of legal merit or the lack of entitlement under the law.\"). Accordingly, the claim for a rating in excess of 10 percent, to include entitlement to a separate evaluation for each ear, at any time since the effective date of the grant of service connection, must be denied as a matter of law. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to assist the veteran in the development of facts pertinent to his claims. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub.",
"L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a veteran as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the veteran and his representative, if any, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim.",
"See 38 C.F.R. § 3.159(a)(5) (2004). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). A VA General Counsel opinion has concluded that the notice provisions of 38 U.S.C.A. § 5103(a) do not apply to claims such as this one because there is no legal basis for separate disability evaluations for each ear for tinnitus. See VAOPGCPREC 2-2004 (Mar. 9, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim for separate disability ratings for each ear for service-connected tinnitus because there is no information or evidence that could substantiate the claim, as entitlement to separate ratings is barred by current Diagnostic Code 6260 and by the previous versions of Diagnostic Code 6260 as interpreted by a prior precedent opinion of the General Counsel (see VAOPGCPREC 2-2003)). See also VAOPGCPREC 5-2004 (June 23, 2004).",
"Accordingly, no further discussion of VA's actions and development conducted to comply with the VCAA is required. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. In the present case, there is no reasonable possibility that any assistance from VA would aid the veteran in substantiating his claim because, as explained, current law prohibits the assignment of separate ratings for each ear for tinnitus.",
"Accordingly, the Board finds that VA is not required to assist the veteran in the development of this claim. See also Sabonis, 6 Vet. App. at 430 (in cases where the law is dispositive of the claim, the claim should be denied due to a lack of entitlement under the law). ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus, to include entitlement to a separate evaluation for each ear, is denied.",
"____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Claims 17-20, 23 and 25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or specie, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/30/20. Claim 1, 3, 7-8, 10-13, 15, 24 and 26-28 are allowable. The restriction requirement among species , as set forth in the Office action mailed on 1/31/20, has been reconsidered in view of the allowability of claims to the elected invention pursuant to MPEP § 821.04(a). The restriction requirement is hereby withdrawn as to any claim that requires all the limitations of an allowable claim. Specifically, the restriction requirement of 1/31/20 is withdrawn. Claim 5, directed to an oscillating deposition tube is no longer withdrawn from consideration because the claim(s) requires all the limitations of an allowable claim. However, claims 17-20, 23 and 25, directed to a method of continuously filtering a stream of slurry remains withdrawn from consideration because they do not require all the limitations of an allowable claim. In view of the above noted withdrawal of the restriction requirement, applicant is advised that if any claim presented in a continuation or divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present Once a restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01.
Drawings The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the pressure equalizer and the detector of the feed forward loop must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner,
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3, 5, 7-8, 10-13, 15, 24 and 26-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 recites the limitation "said filter plate" in line 33. There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 5 recites the limitation "said slurry ". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said pharmaceutical slurry”. Claim 8 recites the limitation "said rotatable inner plate” and “said filter plate". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said rotatable filter support plate” and “said removable rotatable filter plate”.
Claim 15 recites the limitation "said filter plate" in lines 2 and 3. There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 24 recites the limitation "said filter plate". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 27 recites the limitation "said filter plate". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 28 recites the limitation "said filter plate". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. The additional claims are rejected as depending from claim 1.
Allowable Subject Matter Claims 1, 3, 5, 7-8, 10-13, 15, 24 and 26-28 are allowed. The following is an examiner’s statement of reasons for allowance: As currently amended, claim 1 now recite limitations of previous claim 6 as well as reciting a filter plate retaining ring and the filter cake outlet held in place by a filter cake outlet nut. The previously cited prior art teaches as obvious the limitations of previous claim 6 as well . Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” The additional claims are allowable as depending from claim 1.
Response to Arguments Applicant's arguments filed 9/2021 have been fully considered but they are not persuasive. Applicant argues that the pressure equalizer, controller and feed forward loop would be understood by one of ordinary skill in the art and a depiction would be unnecessary. The individual elements would be understood by one of ordinary skill in the art. However, where these elements are located with respect the other claimed elements is not clear and thus for a proper understanding of the invention these
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN M KURTZ whose telephone number is (571)272-8211. The examiner can normally be reached on Monday-Friday 8:30-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nam Nguyen can be reached on 571-272-1342. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /BENJAMIN M KURTZ/Primary Examiner, Art Unit 1778 | 2021-11-19T14:23:34 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Claims 17-20, 23 and 25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or specie, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/30/20. Claim 1, 3, 7-8, 10-13, 15, 24 and 26-28 are allowable. The restriction requirement among species , as set forth in the Office action mailed on 1/31/20, has been reconsidered in view of the allowability of claims to the elected invention pursuant to MPEP § 821.04(a). The restriction requirement is hereby withdrawn as to any claim that requires all the limitations of an allowable claim.",
"Specifically, the restriction requirement of 1/31/20 is withdrawn. Claim 5, directed to an oscillating deposition tube is no longer withdrawn from consideration because the claim(s) requires all the limitations of an allowable claim. However, claims 17-20, 23 and 25, directed to a method of continuously filtering a stream of slurry remains withdrawn from consideration because they do not require all the limitations of an allowable claim. In view of the above noted withdrawal of the restriction requirement, applicant is advised that if any claim presented in a continuation or divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present Once a restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01. Drawings The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims.",
"Therefore, the pressure equalizer and the detector of the feed forward loop must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d).",
"If the changes are not accepted by the examiner, Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.",
"Claims 1, 3, 5, 7-8, 10-13, 15, 24 and 26-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 recites the limitation \"said filter plate\" in line 33. There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 5 recites the limitation \"said slurry \". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said pharmaceutical slurry”.",
"Claim 8 recites the limitation \"said rotatable inner plate” and “said filter plate\". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said rotatable filter support plate” and “said removable rotatable filter plate”. Claim 15 recites the limitation \"said filter plate\" in lines 2 and 3. There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”.",
"Claim 24 recites the limitation \"said filter plate\". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 27 recites the limitation \"said filter plate\". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. Claim 28 recites the limitation \"said filter plate\". There is insufficient antecedent basis for this limitation in the claim. For examination purposes the claim is assumed to recite, “said removable rotatable filter plate”. The additional claims are rejected as depending from claim 1. Allowable Subject Matter Claims 1, 3, 5, 7-8, 10-13, 15, 24 and 26-28 are allowed. The following is an examiner’s statement of reasons for allowance: As currently amended, claim 1 now recite limitations of previous claim 6 as well as reciting a filter plate retaining ring and the filter cake outlet held in place by a filter cake outlet nut. The previously cited prior art teaches as obvious the limitations of previous claim 6 as well .",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” The additional claims are allowable as depending from claim 1. Response to Arguments Applicant's arguments filed 9/2021 have been fully considered but they are not persuasive. Applicant argues that the pressure equalizer, controller and feed forward loop would be understood by one of ordinary skill in the art and a depiction would be unnecessary. The individual elements would be understood by one of ordinary skill in the art. However, where these elements are located with respect the other claimed elements is not clear and thus for a proper understanding of the invention these Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN M KURTZ whose telephone number is (571)272-8211. The examiner can normally be reached on Monday-Friday 8:30-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nam Nguyen can be reached on 571-272-1342. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"/BENJAMIN M KURTZ/Primary Examiner, Art Unit 1778"
]
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DECISION AND ORDER VICTOR MARRERO, United States District Judge. On March 8, 2002, a jury found defendant Julius Williams (“Williams”) guilty of one count of racketeering, in violation of 18 U.S.C. Section 1962(c) (“Count One”), one count of racketeering conspiracy, in violation of 18 U.S.C. Section 1962(d) (“Count Two”), and one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. Sections 812, 841(a), and 841(b) (1) (A) (“Count Three”). (See Dkt. Jury Verdict on Mar. 8, 2002; Dkt. No. 381.) The Court set aside the jury’s verdict on Count One on August 13, 2002. (Dkt. No. 365.) On November 26, 2002, Williams was sentenced to a total term of imprisonment of 600 months.1 (Dkt. No. 381.) Effective November 1, 2014, the United States Sentencing Commission (“Sentencing Commission”) adopted Amendment 782, which modified Section 2D1.1 (“Section 2D1.1”) of the United States Sentencing Guidelines Manual (“Sentencing Guidelines”) to lower the sentencing range for certain categories of drug-related offenses (“Amendment 782”). The Sentencing Commission then' adopted Amendment 788 (“Amendment 788”), also effective November 1, 2014, which authorized retroactive application of Amendment 782 to defendants sentenced before its effective date. Amendment 788 also specifies that no incarcerated defendant can be released pursuant to Amendment 788 prior to November 1, 2015. Furthermore, the “court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.” U.S.S.G. § 1B1.10 (e)(1). By letter dated March 4, 2015, Williams filed 'a motion (“Motion”) for a sentence reduction pursuant to Amendments 782 and 788 and requested that the Court appoint him counsel in this matter. (Dkt. No. 590.) At that time, the policy of this Court and the Bureau of Prisons was not to consider applications for resentencing until two years prior to the inmate’s projected release date. Given that Williams’s earliest projected release date was June 30, 2034, the Court issued an order on March 31, 2015 (“March 31 Order”) indicating that it *361could not review the Motion at that time and instructing Williams to refile his motion 24 months prior to his earliest estimated release date. (Dkt. No. 591.) On December 30, 2015,2 the Probation Department (“Probation”) made a submission- to the Court (“Supplemental Presen-tence Report” or “Supplemental PSR”), indicating that Williams is ineligible for a sentence reduction under Amendments 782 and 788 for two reasons: (1) Williams’s offense level was determined based on a guideline other than Section 2D1.1 and (2) Williams was sentenced as a Career Offender or Armed Career Offender under Section 4B1.1 or Section 4B1.4 of the Sentencing Guidelines (“Section 4B1.1” or “Career Offender Guideline”) without a departure. The Court now considers the Motion on the merits, I. STANDARD Under Section 3582(c)(2) of Title 18 (“Section 3582(c) (2)”) of the United States Code, when a defendant has been sentenced to a term of imprisonment based on a sentencing range that is subsequently lowered by the Sentencing Commission, the Court may act upon motion of the defendant or the Director of the Bureaus of Prisons, or upon its own motion, to reduce the defendant’s term of imprisonment, A court may grant a sentence reduction only after considering the factors set forth in Section 3653(a) of Title 18 of the United States Code (“Section 3553(a)”) and upon a finding that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582 (c)(2). Here, when considering a sentence reduction under the two-step inquiry laid out in Dillon v. United States, the Court must first decide whether a-defendant is eligible for a sentence modification and then determine the “extent of the reduction authorized.” 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). In reviewing eligibility, “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b). As a threshold matter, for a defendant to be eligible for a reduction, the amended Sentencing Guidelines range must be lower than the range that was applied at sentencing. With regard to the' extent of the reduction authorized, Section lB1.10(b)(2)(A) of the Sentencing Guidelines provides that “the [Cjourt shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c) (2) and this policy statement to a term that is less than the minimum of the amended guideline range.” The only exception to this rule applies if the defendant was sentenced to a term of imprisonment below the Sentencing Guidelines’ range pursuant to a government motion “to reflect the defendant’s substantial assistance to ’ authorities,” in which case the' Court is authorized to grant a reduction comparably less than the amended Sentencing Guidelines’, range. U.S.S.G. § 1B1.10 (b) (2) (B). However, in the absence of a sentencing departure based on substantial assistance, the Court is not permitted to “re-impos[e] departures or variances imposed at a defendant’s original sentencing hearing.” U.S. v. Erskine, 717 F.3d 131, 137 (2d Cir.2013). Furthermore, “[i]n no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.” U.S.S.G. § lB1.10(b)(2)(C). *362If the defendant is eligible for a sentence reduction, the Court proceeds to the second step of the Dillon analysis. At that point, the Court must decide — in light of the Section 3553(a) factors — whether to grant a reduction. See Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Under Section 3553(a), the Court must consider, among other things, “the nature and circumstances of the offense and the history and characteristics of the defendant” and the need to “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a); see also U.S.S.G. § 1B1.10, app.n.l(B) (ii). The Court may also consider a defendant’s post-sentencing conduct in determining whether a reduction is warranted. U.S.S.G. § 1B1.10, app.n.l(B)(iii). II. DISCUSSION A. ELIGIBILITY FOR A SENTENCE REDUCTION Under the first step of the Dillon analysis, to be eligible for a sentence reduction, Section 3582(c) (2) requires that Williams’s sentence be “based on a sentencing range that has subsequently been lowered!.]” 18 U.S.C. § 3582(c)(2). Williams’s base offense level was grounded in Section 2D1.1 of the Sentencing Guidelines, the section modified by Amendment 782. Although Williams’s status as a “career offender” was used in the calculation of his criminal history category, his sentence was nevertheless at least partially “based on” Section 2D1.1, which encompasses sentencing ranges subsequently lowered by Amendment 782. 18 U.S.C. § 3582(c)(2). The Court therefore finds that Williams is eligible for a sentence reduction under Amendments 782 and 788. 1. Offense Level Calculation According to the Supplemental PSR, Williams’s offense level was based on a guideline other than Section 2D1.1 of the Sentencing Guidelines, and therefore, Williams is ineligible for a sentence reduction. However, Probation’s assessment is incorrect. At sentencing, the Court calculated Williams’s offense level on the basis of Section 2D1.1: [T]he Court in this case ... chooses to calculate Mr. Williams’s offense level urn der U.S. Sentencing Guidelines Section 2Dl,l(a)(3), which adopts an offense level of 32 for conspiring to distribute at least 50 grams of crack cocaine .... Using 32 as a based offense level, the Court agrees pursuant to U.S. Sentencing Guidelines Section 3Bl.l(b) to add three points for Mr. Williams’ role as a ■manager and supervisor of the conspiracy, which the Court finds was established by clear and convincing evidence at trial, and, further, pursuant to U.S. Sentencing Guidelines Section 2Dl.l(b)(l), to add two points for possession of a dangerous weapon, which the Court also finds was established by clear and convincing evidence at trial. ... Mr. Williams’ offense level stands at 37.... ■ In the alternative, the Court also finds in this record sufficient basis to calculate Mr. Williams’ offense level under the United States Sentencing Guidelines Section 2Dl.l(d)(l), which would ■ hold Mr. Williams accountable for the murder of Alan McLeod during the course of participating in the conspiracy to distribute crack cocaine, the charge on which the jury was unable to reach decision. For the purposes of sentencing on the charges of which Mr. Williams was convicted, the Court finds that the murder cross-reference under U.S. Sentencing Guidelines Section 2Dl.l(d)(l) applies to Mr. Williams despite failure of a jury to convict him at trial on the murder charge, which therefore leads to the *363adoption of an offense level of 43, the maximum offense level allowed by the sentencing guide lines .... Accordingly, the Court adopts a criminal history category of VI and an offense level of 37. Under the sentencing guidelines, the sentencing range of such an offense level and criminal history category is 360 months to life imprisonment. This range would not change significantly if the offense level of 43 was adopted. (Dkt. No. 388, Sentencing Tr. at 50-52, 54-55.) Because Williams’s offense level was calculated under Section 2D1.1, he is not ineligible for a sentence reduction based on this criteria. 2. Career Offender Characterization Having found that Williams is not ineligible based on the calculation of his offense level, the Court now turns to Probation’s second reason for determining that Williams is ineligible for a sentence reduction — that Williams was sentenced as a career offender pursuant to Section 4B1.1.3 Under Section 3582(c)(2), the Court may grant a sentence reduction when a defendant has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission. “Pursuant to [Section] 3582(c)(2), a defendant’s sentence may only be reduced when ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ Although the policy statements do not ‘categorically exclude career offenders’ from the benefit of a section 3582 resentencing, § lB1.10(a)(2)(B) does categorically exclude defendants as to whom an amendment to the Guidelines ‘does not have the effect of lowering the defendant’s applicable guideline range.’ ” United States v. Smith, 614 F.Supp.2d 433, 434 (S.D.N.Y. 2009) (internal citations omitted). While I departed downward from the recommended net offense level — -which took, into account Watson’s career offender status — -of 37, my starting point was based on the PSR's calculation of a base offense level of 32 found in the drug offense guidelines. Had the base offense level been lower, I would have considered a lower range of sentences. Thus, the sentencing range called for in the drug offense guidelines was "a relevant part of the analytic framework” I used to determine Watson’s sentence. To *364"remedy an injustice,” I find resentencing is appropriate. Id, at *7. (internal citations omitted). *363The Court calculated Williams’s criminal history category at sentencing based on his career offender status. (See Dkt. No. 388, Sentencing Tr. at 54) (“With regard to Mr, Williams’s criminal history category, the Court considers Mr. Williams to be a career offender pursuant to United States Sentencing" ■ Guidelines Section 4B1.1 _”). However, as outlined above,- the Court did not take into account the Career Offender Guideline in calculating Williams’s offense level but rather determined the offense level using Section 2D1.1.4 Therefore, because there is evi*364dence that the Sentencing Guidelines’ range calculated under Section 2D1.1 did play a role in the determination of Williams’s sentence, Williams is eligible for a sentence ■ reduction. Cf. Smith, 614 F.Supp.2d at 435-36 (“Accordingly, because defendant has pointed to ‘no evidence that the Guidelines range calculated under U.S.S.G. § 2Dl.l(c) played any role in [this Court’s] determination of his sentence,’ defendant is not eligible for a sentence reduction based on the amendments to the crack Guidelines.”) (internal citations omitted). 3. Subsequently Lowered Guideline Range Because Amendment 782 decreased the offense level for certain drug-related offenses under Section 2D1.1, Williams’s offense level would accordingly be reduced from 37 to 35. An offense level of 35 and a criminal history category of VI results in a Sentencing Guidelines’, range of 292 to 365 months. See United States v. Steele, 714 F.3d 751, 754 (2d Cir.2013) (“According to the relevant policy statement issued by the Sentencing Commission, in setting a reduced sentence, a resentencing court must first ‘determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.’”). Therefore, since Amendment 782. does “have the effect of lowering the defendant’s applicable guideline range,” see U.S.S.G. § lB1.10(a)(2)(B), from 360 months to life down to 292 to 365 months, Williams is eligible for a sentence reduction because his sentence was at least partially “based on” a range that has subsequently been lowered. See 18 U.S.C. § 3582 (c)(2). B. CONSIDERATION OF SECTION 3553(a) FACTORS Having determined that Williams is eligible for a sentence reduction, the Court must determine whether to grant such a reduction by considering the Section 3553(a) factors. See Dillon, 560 U.S. at 827, 130 S.Ct. 2683. The first factor listed in Section 3553(a)(1), “the nature and circumstances of the offense,” weighs against granting a reduction. The Court applied upward enhancements at Williams’s sentencing to account for his role as manager and supervisor of the conspiracy and for possession of a dangerous weapon. (Dkt. No. 388, Sentencing Tr. at 51; see also Dkt. No. 495 at 11-12.) The Court also concluded that Williams, in the course of participating in the conspiracy to distribute crack cocaine, “did stab Mr. [Alan] McLeod to death[,]” a murder that was carried out “intentionally, with premeditation and deliberation.” (Dkt. No. 388, Sentencing Tr. at 53-54, 56.) Similarly, the Court considered that as manager of the drug gang involved in the conspiracy, Williams engaged in “acts of extreme violence, including Williams’s firing a gun at and twice wounding [another individual] in the back while pursuing him following a fight in the after-hours club where Williams worked [.]” (Dkt. No. 495 at 11-12.) Therefore, the nature and circumstances of the offense counsel against granting a sentence reduction. The second factor in Section 3553(a)(1), “the history and characteristics of the defendant,” also weighs against granting a reduction. Because Williams had two prior felony narcotics convictions, the Court considered him a career offender for purposes of calculating his criminal history category. *365(Dkt. No. 388, Sentencing Tr. at 54.) In addition, nothing on the record indicated that Williams showed any remorse for his crimes. (Id. at 56.) Therefore, Williams’s characteristics weigh against granting a reduction. Finally, Section 3553(a)(2), “the need for the sentence imposed,” also weighs in favor of maintaining the imposed sentence: “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant^]” 18 U.S.C. § 3553(a). The seriousness of Williams’s offense, the egregious nature of his conduct, and the need to deter others and protect the public weigh against granting a reduction. The Court therefore concludes that even though Williams is eligible for a sentence reduction pursuant to Amendments 782 and 788 to the Sentencing Guidelines, consideration of the Section 3553(a) factors does not warrant granting such a reduction. C. MOTION TO APPOINT COUNSEL The Court will now turn to Williams’s request for the Court to appoint counsel. (See Dkt. No. 590.) The Second Circuit has held that “reference to ancillary matters in [Section] 3006A does not require the furnishing of Criminal Justice Act counsel in post-appeal motions for reduction of sentence seeking the benefit of subsequent changes in the Guidelines.” United States v. Reddick, 53 F.3d 462, 465 (2d Cir.1995). Therefore, “[t]he provision of counsel for such motions should rest in the discretion of the district court.” Id.; see also United States v. Garcia, 517 Fed. Appx. 58 (2d Cir.2013) (“The provision of legal counsel to indigent defendants in post-appeal motions for a reduction of sentence rests in the discretion of the district court.”); United States v. Cirineo, 372 Fed. Appx. 178, 179 (2d Cir.2010) (“In United States v, Reddick, we determined that there is no statutory right to counsel under the Criminal Justice Act in connection with a § 3582(c) motion, and that the provision of counsel for such motions should rest in the discretion of the district court.”). In Reddick, the court concluded that requiring the appointment of an attorney for a motion for sentence reduction would “place large burdens of questionable value on the bar and the criminal justice treasury. Such an interpretation would require the use of public funds to pay the cost of counsel for countless frivolous proceedings that long-term prisoners might bring.” 53 F.3d at 464. As a result, the Second Circuit held that “the merits of the motion will be a ‘significant factor in the exercise of [the court’s] discretion.’ ” Cirineo, 372 Fed. Appx. at 179 (quoting Reddick, 53 F.3d at 465 n. 2). Williams did not provide any explanation as to why he requests appointment of an attorney. However, the merits of his Motion weigh against appointment of counsel. Although Williams is eligible for a sentence reduction under Section 3582(c)(2), the Court concluded that a reduction is not warranted in light of the Section 3553(a) factors. Given that Williams’s Motion is unsuccessful on the merits, in accordance with its discretion, the Court denies Williams’s request for appointment of counsel, III. ORDER For the reasons stated above, it is hereby . ORDERED that the motion of defendant Julius Williams (“Williams”) (Dkt. No. 590) for a sentence reduction pursuant *366to Amendments 782 and 788 of the United States Sentencing Guidelines is DENIED with prejudice; and it is further ORDERED that the request of Williams to be appointed counsel (Dkt. No. 590) is DENIED. . SO ORDERED.
. The Court imposed a 240-month sentence for Count Two to run consecutively with a 360-month sentence for Count Three. (See - Dkt. Nos. 533, 537, 544.)
. Probation subsequently submitted a revised Supplemental PSR on January 19, 2016 correcting the base offense level and total offense level to 37.
. The Court previously determined that "Williams was ineligible for a sentence reduction under prior amendments to the Sentenc- ■ ing Guidelines due to his classification as a career offender (Dkt. No. 544 at 3.) However, upon review of more recent case law regarding amendments to the Sentencing Guidelines, the Court will now analyze whether Williams’s classification as a career offender by Probation precludes him from being eligible for a sentence reduction pursuant to Amendment 782.
. The Court is not ■ aware of any precedent that precisely parallels the instant facts — a defendant that is assigned a criminal history category, but not an offense level, on the basis of the Career Offender Guideline, However, in U.S. v. Watson, the'court determined that the defendant was a career offender, but departed downward and determined that the proper criminal history category for the defendant was V as opposed to VI, and the proper offense level was 35 instead of 37. No. 02 CR 1394, 2013 WL 772662 at ⅜2 (S.D.N.Y. Feb. 27, 2013). The court granted the defendant's motion for a reduction in sentence and held: | 07-25-2022 | [
"DECISION AND ORDER VICTOR MARRERO, United States District Judge. On March 8, 2002, a jury found defendant Julius Williams (“Williams”) guilty of one count of racketeering, in violation of 18 U.S.C. Section 1962(c) (“Count One”), one count of racketeering conspiracy, in violation of 18 U.S.C. Section 1962(d) (“Count Two”), and one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. Sections 812, 841(a), and 841(b) (1) (A) (“Count Three”).",
"(See Dkt. Jury Verdict on Mar. 8, 2002; Dkt. No. 381.) The Court set aside the jury’s verdict on Count One on August 13, 2002. (Dkt. No. 365.) On November 26, 2002, Williams was sentenced to a total term of imprisonment of 600 months.1 (Dkt. No. 381.) Effective November 1, 2014, the United States Sentencing Commission (“Sentencing Commission”) adopted Amendment 782, which modified Section 2D1.1 (“Section 2D1.1”) of the United States Sentencing Guidelines Manual (“Sentencing Guidelines”) to lower the sentencing range for certain categories of drug-related offenses (“Amendment 782”). The Sentencing Commission then' adopted Amendment 788 (“Amendment 788”), also effective November 1, 2014, which authorized retroactive application of Amendment 782 to defendants sentenced before its effective date. Amendment 788 also specifies that no incarcerated defendant can be released pursuant to Amendment 788 prior to November 1, 2015. Furthermore, the “court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.” U.S.S.G. § 1B1.10 (e)(1).",
"By letter dated March 4, 2015, Williams filed 'a motion (“Motion”) for a sentence reduction pursuant to Amendments 782 and 788 and requested that the Court appoint him counsel in this matter. (Dkt. No. 590.) At that time, the policy of this Court and the Bureau of Prisons was not to consider applications for resentencing until two years prior to the inmate’s projected release date. Given that Williams’s earliest projected release date was June 30, 2034, the Court issued an order on March 31, 2015 (“March 31 Order”) indicating that it *361could not review the Motion at that time and instructing Williams to refile his motion 24 months prior to his earliest estimated release date.",
"(Dkt. No. 591.) On December 30, 2015,2 the Probation Department (“Probation”) made a submission- to the Court (“Supplemental Presen-tence Report” or “Supplemental PSR”), indicating that Williams is ineligible for a sentence reduction under Amendments 782 and 788 for two reasons: (1) Williams’s offense level was determined based on a guideline other than Section 2D1.1 and (2) Williams was sentenced as a Career Offender or Armed Career Offender under Section 4B1.1 or Section 4B1.4 of the Sentencing Guidelines (“Section 4B1.1” or “Career Offender Guideline”) without a departure. The Court now considers the Motion on the merits, I. STANDARD Under Section 3582(c)(2) of Title 18 (“Section 3582(c) (2)”) of the United States Code, when a defendant has been sentenced to a term of imprisonment based on a sentencing range that is subsequently lowered by the Sentencing Commission, the Court may act upon motion of the defendant or the Director of the Bureaus of Prisons, or upon its own motion, to reduce the defendant’s term of imprisonment, A court may grant a sentence reduction only after considering the factors set forth in Section 3653(a) of Title 18 of the United States Code (“Section 3553(a)”) and upon a finding that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.",
"18 U.S.C. § 3582 (c)(2). Here, when considering a sentence reduction under the two-step inquiry laid out in Dillon v. United States, the Court must first decide whether a-defendant is eligible for a sentence modification and then determine the “extent of the reduction authorized.” 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). In reviewing eligibility, “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b). As a threshold matter, for a defendant to be eligible for a reduction, the amended Sentencing Guidelines range must be lower than the range that was applied at sentencing.",
"With regard to the' extent of the reduction authorized, Section lB1.10(b)(2)(A) of the Sentencing Guidelines provides that “the [Cjourt shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c) (2) and this policy statement to a term that is less than the minimum of the amended guideline range.” The only exception to this rule applies if the defendant was sentenced to a term of imprisonment below the Sentencing Guidelines’ range pursuant to a government motion “to reflect the defendant’s substantial assistance to ’ authorities,” in which case the' Court is authorized to grant a reduction comparably less than the amended Sentencing Guidelines’, range. U.S.S.G. § 1B1.10 (b) (2) (B). However, in the absence of a sentencing departure based on substantial assistance, the Court is not permitted to “re-impos[e] departures or variances imposed at a defendant’s original sentencing hearing.” U.S. v. Erskine, 717 F.3d 131, 137 (2d Cir.2013).",
"Furthermore, “[i]n no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.” U.S.S.G. § lB1.10(b)(2)(C). *362If the defendant is eligible for a sentence reduction, the Court proceeds to the second step of the Dillon analysis. At that point, the Court must decide — in light of the Section 3553(a) factors — whether to grant a reduction.",
"See Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Under Section 3553(a), the Court must consider, among other things, “the nature and circumstances of the offense and the history and characteristics of the defendant” and the need to “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a); see also U.S.S.G. § 1B1.10, app.n.l(B) (ii). The Court may also consider a defendant’s post-sentencing conduct in determining whether a reduction is warranted. U.S.S.G.",
"§ 1B1.10, app.n.l(B)(iii). II. DISCUSSION A. ELIGIBILITY FOR A SENTENCE REDUCTION Under the first step of the Dillon analysis, to be eligible for a sentence reduction, Section 3582(c) (2) requires that Williams’s sentence be “based on a sentencing range that has subsequently been lowered!. ]” 18 U.S.C. § 3582(c)(2). Williams’s base offense level was grounded in Section 2D1.1 of the Sentencing Guidelines, the section modified by Amendment 782. Although Williams’s status as a “career offender” was used in the calculation of his criminal history category, his sentence was nevertheless at least partially “based on” Section 2D1.1, which encompasses sentencing ranges subsequently lowered by Amendment 782. 18 U.S.C. § 3582(c)(2). The Court therefore finds that Williams is eligible for a sentence reduction under Amendments 782 and 788. 1. Offense Level Calculation According to the Supplemental PSR, Williams’s offense level was based on a guideline other than Section 2D1.1 of the Sentencing Guidelines, and therefore, Williams is ineligible for a sentence reduction.",
"However, Probation’s assessment is incorrect. At sentencing, the Court calculated Williams’s offense level on the basis of Section 2D1.1: [T]he Court in this case ... chooses to calculate Mr. Williams’s offense level urn der U.S. Sentencing Guidelines Section 2Dl,l(a)(3), which adopts an offense level of 32 for conspiring to distribute at least 50 grams of crack cocaine .... Using 32 as a based offense level, the Court agrees pursuant to U.S. Sentencing Guidelines Section 3Bl.l(b) to add three points for Mr. Williams’ role as a ■manager and supervisor of the conspiracy, which the Court finds was established by clear and convincing evidence at trial, and, further, pursuant to U.S. Sentencing Guidelines Section 2Dl.l(b)(l), to add two points for possession of a dangerous weapon, which the Court also finds was established by clear and convincing evidence at trial. ... Mr. Williams’ offense level stands at 37.... ■ In the alternative, the Court also finds in this record sufficient basis to calculate Mr. Williams’ offense level under the United States Sentencing Guidelines Section 2Dl.l(d)(l), which would ■ hold Mr. Williams accountable for the murder of Alan McLeod during the course of participating in the conspiracy to distribute crack cocaine, the charge on which the jury was unable to reach decision.",
"For the purposes of sentencing on the charges of which Mr. Williams was convicted, the Court finds that the murder cross-reference under U.S. Sentencing Guidelines Section 2Dl.l(d)(l) applies to Mr. Williams despite failure of a jury to convict him at trial on the murder charge, which therefore leads to the *363adoption of an offense level of 43, the maximum offense level allowed by the sentencing guide lines .... Accordingly, the Court adopts a criminal history category of VI and an offense level of 37. Under the sentencing guidelines, the sentencing range of such an offense level and criminal history category is 360 months to life imprisonment. This range would not change significantly if the offense level of 43 was adopted. (Dkt. No.",
"388, Sentencing Tr. at 50-52, 54-55.) Because Williams’s offense level was calculated under Section 2D1.1, he is not ineligible for a sentence reduction based on this criteria. 2. Career Offender Characterization Having found that Williams is not ineligible based on the calculation of his offense level, the Court now turns to Probation’s second reason for determining that Williams is ineligible for a sentence reduction — that Williams was sentenced as a career offender pursuant to Section 4B1.1.3 Under Section 3582(c)(2), the Court may grant a sentence reduction when a defendant has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission. “Pursuant to [Section] 3582(c)(2), a defendant’s sentence may only be reduced when ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ Although the policy statements do not ‘categorically exclude career offenders’ from the benefit of a section 3582 resentencing, § lB1.10(a)(2)(B) does categorically exclude defendants as to whom an amendment to the Guidelines ‘does not have the effect of lowering the defendant’s applicable guideline range.’ ” United States v. Smith, 614 F.Supp.2d 433, 434 (S.D.N.Y. 2009) (internal citations omitted).",
"While I departed downward from the recommended net offense level — -which took, into account Watson’s career offender status — -of 37, my starting point was based on the PSR's calculation of a base offense level of 32 found in the drug offense guidelines. Had the base offense level been lower, I would have considered a lower range of sentences. Thus, the sentencing range called for in the drug offense guidelines was \"a relevant part of the analytic framework” I used to determine Watson’s sentence. To *364\"remedy an injustice,” I find resentencing is appropriate. Id, at *7. (internal citations omitted). *363The Court calculated Williams’s criminal history category at sentencing based on his career offender status. (See Dkt. No. 388, Sentencing Tr.",
"at 54) (“With regard to Mr, Williams’s criminal history category, the Court considers Mr. Williams to be a career offender pursuant to United States Sentencing\" ■ Guidelines Section 4B1.1 _”). However, as outlined above,- the Court did not take into account the Career Offender Guideline in calculating Williams’s offense level but rather determined the offense level using Section 2D1.1.4 Therefore, because there is evi*364dence that the Sentencing Guidelines’ range calculated under Section 2D1.1 did play a role in the determination of Williams’s sentence, Williams is eligible for a sentence ■ reduction. Cf. Smith, 614 F.Supp.2d at 435-36 (“Accordingly, because defendant has pointed to ‘no evidence that the Guidelines range calculated under U.S.S.G. § 2Dl.l(c) played any role in [this Court’s] determination of his sentence,’ defendant is not eligible for a sentence reduction based on the amendments to the crack Guidelines.”) (internal citations omitted).",
"3. Subsequently Lowered Guideline Range Because Amendment 782 decreased the offense level for certain drug-related offenses under Section 2D1.1, Williams’s offense level would accordingly be reduced from 37 to 35. An offense level of 35 and a criminal history category of VI results in a Sentencing Guidelines’, range of 292 to 365 months. See United States v. Steele, 714 F.3d 751, 754 (2d Cir.2013) (“According to the relevant policy statement issued by the Sentencing Commission, in setting a reduced sentence, a resentencing court must first ‘determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.’”).",
"Therefore, since Amendment 782. does “have the effect of lowering the defendant’s applicable guideline range,” see U.S.S.G. § lB1.10(a)(2)(B), from 360 months to life down to 292 to 365 months, Williams is eligible for a sentence reduction because his sentence was at least partially “based on” a range that has subsequently been lowered. See 18 U.S.C. § 3582 (c)(2). B. CONSIDERATION OF SECTION 3553(a) FACTORS Having determined that Williams is eligible for a sentence reduction, the Court must determine whether to grant such a reduction by considering the Section 3553(a) factors. See Dillon, 560 U.S. at 827, 130 S.Ct. 2683.",
"The first factor listed in Section 3553(a)(1), “the nature and circumstances of the offense,” weighs against granting a reduction. The Court applied upward enhancements at Williams’s sentencing to account for his role as manager and supervisor of the conspiracy and for possession of a dangerous weapon. (Dkt. No. 388, Sentencing Tr. at 51; see also Dkt. No. 495 at 11-12.) The Court also concluded that Williams, in the course of participating in the conspiracy to distribute crack cocaine, “did stab Mr. [Alan] McLeod to death[,]” a murder that was carried out “intentionally, with premeditation and deliberation.” (Dkt. No. 388, Sentencing Tr. at 53-54, 56.) Similarly, the Court considered that as manager of the drug gang involved in the conspiracy, Williams engaged in “acts of extreme violence, including Williams’s firing a gun at and twice wounding [another individual] in the back while pursuing him following a fight in the after-hours club where Williams worked [. ]” (Dkt. No. 495 at 11-12.)",
"Therefore, the nature and circumstances of the offense counsel against granting a sentence reduction. The second factor in Section 3553(a)(1), “the history and characteristics of the defendant,” also weighs against granting a reduction. Because Williams had two prior felony narcotics convictions, the Court considered him a career offender for purposes of calculating his criminal history category. *365(Dkt. No. 388, Sentencing Tr. at 54.) In addition, nothing on the record indicated that Williams showed any remorse for his crimes. (Id. at 56.) Therefore, Williams’s characteristics weigh against granting a reduction. Finally, Section 3553(a)(2), “the need for the sentence imposed,” also weighs in favor of maintaining the imposed sentence: “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant^]” 18 U.S.C.",
"§ 3553(a). The seriousness of Williams’s offense, the egregious nature of his conduct, and the need to deter others and protect the public weigh against granting a reduction. The Court therefore concludes that even though Williams is eligible for a sentence reduction pursuant to Amendments 782 and 788 to the Sentencing Guidelines, consideration of the Section 3553(a) factors does not warrant granting such a reduction. C. MOTION TO APPOINT COUNSEL The Court will now turn to Williams’s request for the Court to appoint counsel. (See Dkt. No. 590.) The Second Circuit has held that “reference to ancillary matters in [Section] 3006A does not require the furnishing of Criminal Justice Act counsel in post-appeal motions for reduction of sentence seeking the benefit of subsequent changes in the Guidelines.” United States v. Reddick, 53 F.3d 462, 465 (2d Cir.1995). Therefore, “[t]he provision of counsel for such motions should rest in the discretion of the district court.” Id. ; see also United States v. Garcia, 517 Fed.",
"Appx. 58 (2d Cir.2013) (“The provision of legal counsel to indigent defendants in post-appeal motions for a reduction of sentence rests in the discretion of the district court.”); United States v. Cirineo, 372 Fed. Appx. 178, 179 (2d Cir.2010) (“In United States v, Reddick, we determined that there is no statutory right to counsel under the Criminal Justice Act in connection with a § 3582(c) motion, and that the provision of counsel for such motions should rest in the discretion of the district court.”). In Reddick, the court concluded that requiring the appointment of an attorney for a motion for sentence reduction would “place large burdens of questionable value on the bar and the criminal justice treasury. Such an interpretation would require the use of public funds to pay the cost of counsel for countless frivolous proceedings that long-term prisoners might bring.” 53 F.3d at 464. As a result, the Second Circuit held that “the merits of the motion will be a ‘significant factor in the exercise of [the court’s] discretion.’ ” Cirineo, 372 Fed. Appx.",
"at 179 (quoting Reddick, 53 F.3d at 465 n. 2). Williams did not provide any explanation as to why he requests appointment of an attorney. However, the merits of his Motion weigh against appointment of counsel. Although Williams is eligible for a sentence reduction under Section 3582(c)(2), the Court concluded that a reduction is not warranted in light of the Section 3553(a) factors. Given that Williams’s Motion is unsuccessful on the merits, in accordance with its discretion, the Court denies Williams’s request for appointment of counsel, III. ORDER For the reasons stated above, it is hereby . ORDERED that the motion of defendant Julius Williams (“Williams”) (Dkt. No.",
"590) for a sentence reduction pursuant *366to Amendments 782 and 788 of the United States Sentencing Guidelines is DENIED with prejudice; and it is further ORDERED that the request of Williams to be appointed counsel (Dkt. No. 590) is DENIED. . SO ORDERED. . The Court imposed a 240-month sentence for Count Two to run consecutively with a 360-month sentence for Count Three. (See - Dkt. Nos. 533, 537, 544.) . Probation subsequently submitted a revised Supplemental PSR on January 19, 2016 correcting the base offense level and total offense level to 37. . The Court previously determined that \"Williams was ineligible for a sentence reduction under prior amendments to the Sentenc- ■ ing Guidelines due to his classification as a career offender (Dkt. No. 544 at 3.) However, upon review of more recent case law regarding amendments to the Sentencing Guidelines, the Court will now analyze whether Williams’s classification as a career offender by Probation precludes him from being eligible for a sentence reduction pursuant to Amendment 782. .",
"The Court is not ■ aware of any precedent that precisely parallels the instant facts — a defendant that is assigned a criminal history category, but not an offense level, on the basis of the Career Offender Guideline, However, in U.S. v. Watson, the'court determined that the defendant was a career offender, but departed downward and determined that the proper criminal history category for the defendant was V as opposed to VI, and the proper offense level was 35 instead of 37. No. 02 CR 1394, 2013 WL 772662 at ⅜2 (S.D.N.Y. Feb. 27, 2013). The court granted the defendant's motion for a reduction in sentence and held:"
]
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This is an action brought on the common counts. The bill of particulars contained two items of money loaned to the defendant by the plaintiff, viz., February 29th, 1904, $1,300, and July, 1904, $3,000. In compliance with an order of court, the plaintiff made her bill of particulars more specific, by stating that the $3,000 referred to in the second item of the bill of particulars was money loaned by the plaintiff to the defendant, and was used by the defendant as part of the purchase price for the premises known as 61 Garden Street. The first defense was a general denial, and the second defense was adjudged insufficient on demurrer. The parties then went to trial under the general issue, when the court found for the plaintiff and rendered judgment for $1,600. The appeal assigns error in sustaining the demurrer to the second defense, and because the court overruled certain claims of law which the defendant made upon the trial. The defendant's main contention, expressed in several forms in the reasons of appeal, is to the effect that the court erred in not holding that the judgment granting alimony to his wife in the divorce proceedings was a bar to her recovery in the present action. Going to trial under the general issue, after a demurrer to the second defense had been sustained, did not waive the right of appeal, after final judgment, from the interlocutory judgment upon the demurrer.Hunter's Appeal, 71 Conn. 189, 198, 41 A. 557. But it does not follow that a reason of appeal of that nature is to be decided without reference to the proceedings following the answer. If these, without the imposition of any new and improper burden upon the defendant, result in a judicial finding by which the facts alleged are supported, and their legal effect broadened by *Page 637 other facts not specifically alleged but within the issue, this court is not to shut its eyes to the finding and consider the demurrer as if it had been the termination of the pleadings. Having, now, all the facts before us, we are not required to rule upon what would be the result of some of them standing alone. MechanicsBank v. Woodward, 74 Conn. 689, 691, 51 A. 1084. For the purpose of testing the question as to whether the defendant was injured by the judgment, we are therefore to examine the facts set up in the second defense, in connection with the other facts found to exist. Thus treated, it appears that for some years after their marriage the parties were engaged in the business of pressing and cleaning clothes. This business started on a small scale, but through the industry and application of both husband and wife it became profitable. The profits, by agreement between them, were divided, and the plaintiff's share at first was deposited in a savings-bank in her own name, but subsequently was transferred to their joint account. In May, 1897, they purchased a dwelling-house for their own occupancy, and $3,200 of this purchase price was paid in cash drawn from their joint account. The title to this property was taken in the name of the husband, contrary to an agreement that it was to be taken in their names as joint owners. This title was so taken without the consent of the wife and contrary to her express direction. Sixteen hundred dollars, one half of the sum paid on the purchase price for the dwelling-house, was the plaintiff's property, for which the judgment now in question was rendered. The parties moved into this house and lived there until July, 1905, when they separated. Shortly thereafter an action claiming a divorce, alimony, and a change of the plaintiff's name, was instituted. The complaint in that action, among other things, alleged that the defendant had been guilty *Page 638 of intolerable cruelty, and that the defendant owned real and personal estate of the value of $10,000. A decree was rendered awarding a divorce to the plaintiff from the defendant, and allowing her $1,000 as alimony, which was paid by the defendant. On the trial of the divorce action the plaintiff introduced evidence and sought to prove the truth of the matter she now alleges in her present complaint and bill of particulars, for the purpose of enhancing whatever sums the court might find to be due her under her claim for alimony. The court received said evidence and considered all the conditions and circumstances surrounding and connected with the plaintiff's present claim as set forth in her complaint and bill of particulars, for the purpose of ascertaining what was fairly and reasonably due to the plaintiff as alimony. Is this a case of estoppel by judgment? The law in respect to such estoppel was fully considered and determined by the court in the case of Cromwell v.County of Sac, 94 U.S. 351, 24 L.Ed. 195. It was there decided that when the second suit is upon the same cause of action, and between the same parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented and determined in the first action; but when the second suit is upon a different cause of action, though between the same parties, the judgment in the former action operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. By the rule laid down in the case cited, the judgment in the suit for a divorce is conclusive here only as to the matters there litigated and determined. This judgment is in the usual form, and shows that the court found that the defendant was the owner of real and personal estate to the value of *Page 639 $3,000, and that $1,000 was a reasonable portion of the defendant's estate to assign to the plaintiff. The General Statutes, § 4556, provides that "the superior court may assign to any woman so divorced part of the estate of her husband, not exceeding one-third, may change her name, and may order alimony pendentelite to be paid to the wife in any complaint or cross bill for divorce pending in such court, upon such terms and conditions as it shall deem advisable." The court did not, under the provisions of this statute, make an allowance to the plaintiff in this case as a debt due to the wife, or as damages to be paid to her by her husband on their divorce, but as a part or proportion of his estate, fixed by the court in its discretion and appropriated to her, and to which she thereupon became legally entitled. Such a decree and assignment is specific in its character, and operates as a division or partition, between the husband and wife, of his property, in such proportion as the court by its decree determines. Lyon v. Lyon, 21 Conn. 185, 196, 197. In other words, that which was determined by the judgment in the divorce case was an allowance out of the estate of the husband made for the support to which the wife was entitled, and of which she had been deprived through the husband's default in the performance of the marriage contract. Nothing was determined in the present case by the court below which was antagonistic to the adjudication in the divorce proceeding, and it is clear that the two suits were upon different causes of action. The defendant contends, in his second defense, that the plaintiff, upon the trial of the action for a divorce, for the purpose of increasing the amount that might be allowed her as alimony, sought to establish the claim now in question. A sufficient answer to this claim is found in the fact that this evidence could only have *Page 640 been received for the purpose of ascertaining what was fairly due to the plaintiff as an allowance from her husband's estate. To reach such a conclusion it became the duty of the trial court not only to make proper deductions from the amount of the defendant's estate for his indebtedness to his wife and others, existing when the divorce was granted, but also to consider the financial condition of the wife aside from any allowance which might be made. Burrows v. Purple,107 Mass. 428, 433. The court below has found that at and before the time when the decree for a divorce was rendered the husband was indebted to the wife in the sum of $1,600. It is not claimed that there is anything in the evidential and subordinate facts to justify us in questioning the legality and correctness of this conclusion. We have seen that the law provides that the allowance which was made to the plaintiff in a divorce case must be taken from the estate of the husband. That which the wife owned before the judgment in the divorce proceedings is still hers so far as that decree is concerned, and, while it was proper to take her property into consideration in that trial, yet the judgment there rendered in no way affected it. Fredericks v. Sault,19 Ind. App. 604, 49 N.E. 909; 1 Van Fleet on Former Adjudication, p. 461; Gray v. Thomas, 83 Tex. 246, 251,18 S.W. 721. One assignment of error is addressed to a question of variance between the allegations of the complaint and the proof offered to sustain them. No evidence showing a variance is recited in the record, but the defendant in argument contends that it appears that the plaintiff's cause of action is based upon an allegation for money loaned, while the finding of facts shows that she is seeking damages for the conversion of her money. *Page 641 The complaint alleged a loaning of the money to the defendant, and that it was used by him in the purchase of certain real estate. The facts found warranted a judgment for money received under an agreement that it should be used for an express purpose, which the defendant failed to carry out. See Thresher v.Stonington Savings Bank, 68 Conn. 201, 204,36 A. 38; Wales v. Wetmore, 3 Day, 252. The complaint directed attention to the true nature of the plaintiff's loss, and this variance ought not to have misled the defendant or prejudiced him in maintaining his defense upon the merits of his case. The entire evidence was received without any objection upon the ground of variance between allegation and proof. No motion was made to strike out the evidence upon the ground that it was not within the issues. The defect, if pointed out during the trial, could have been easily obviated or avoided. The defendant, by his failure to raise the question of variance in some form, waived the defect, and it is now too late to insist upon such a point upon appeal. Plumb v. Curtis, 66 Conn. 154, 165,33 A. 998; McNerney v. Barnes, 77 Conn. 155, 157,58 A. 714; Osborn v. Norwalk, 77 Conn. 663, 666, 60 A. 645;Fenton v. Mansfield, 82 Conn. 343, 73 A. 770. There is no error. In this opinion the other judges concurred. | 07-05-2016 | [
"This is an action brought on the common counts. The bill of particulars contained two items of money loaned to the defendant by the plaintiff, viz., February 29th, 1904, $1,300, and July, 1904, $3,000. In compliance with an order of court, the plaintiff made her bill of particulars more specific, by stating that the $3,000 referred to in the second item of the bill of particulars was money loaned by the plaintiff to the defendant, and was used by the defendant as part of the purchase price for the premises known as 61 Garden Street. The first defense was a general denial, and the second defense was adjudged insufficient on demurrer. The parties then went to trial under the general issue, when the court found for the plaintiff and rendered judgment for $1,600. The appeal assigns error in sustaining the demurrer to the second defense, and because the court overruled certain claims of law which the defendant made upon the trial. The defendant's main contention, expressed in several forms in the reasons of appeal, is to the effect that the court erred in not holding that the judgment granting alimony to his wife in the divorce proceedings was a bar to her recovery in the present action.",
"Going to trial under the general issue, after a demurrer to the second defense had been sustained, did not waive the right of appeal, after final judgment, from the interlocutory judgment upon the demurrer.Hunter's Appeal, 71 Conn. 189, 198, 41 A. 557. But it does not follow that a reason of appeal of that nature is to be decided without reference to the proceedings following the answer. If these, without the imposition of any new and improper burden upon the defendant, result in a judicial finding by which the facts alleged are supported, and their legal effect broadened by *Page 637 other facts not specifically alleged but within the issue, this court is not to shut its eyes to the finding and consider the demurrer as if it had been the termination of the pleadings. Having, now, all the facts before us, we are not required to rule upon what would be the result of some of them standing alone. MechanicsBank v. Woodward, 74 Conn. 689, 691, 51 A.",
"1084. For the purpose of testing the question as to whether the defendant was injured by the judgment, we are therefore to examine the facts set up in the second defense, in connection with the other facts found to exist. Thus treated, it appears that for some years after their marriage the parties were engaged in the business of pressing and cleaning clothes. This business started on a small scale, but through the industry and application of both husband and wife it became profitable. The profits, by agreement between them, were divided, and the plaintiff's share at first was deposited in a savings-bank in her own name, but subsequently was transferred to their joint account. In May, 1897, they purchased a dwelling-house for their own occupancy, and $3,200 of this purchase price was paid in cash drawn from their joint account.",
"The title to this property was taken in the name of the husband, contrary to an agreement that it was to be taken in their names as joint owners. This title was so taken without the consent of the wife and contrary to her express direction. Sixteen hundred dollars, one half of the sum paid on the purchase price for the dwelling-house, was the plaintiff's property, for which the judgment now in question was rendered. The parties moved into this house and lived there until July, 1905, when they separated. Shortly thereafter an action claiming a divorce, alimony, and a change of the plaintiff's name, was instituted.",
"The complaint in that action, among other things, alleged that the defendant had been guilty *Page 638 of intolerable cruelty, and that the defendant owned real and personal estate of the value of $10,000. A decree was rendered awarding a divorce to the plaintiff from the defendant, and allowing her $1,000 as alimony, which was paid by the defendant. On the trial of the divorce action the plaintiff introduced evidence and sought to prove the truth of the matter she now alleges in her present complaint and bill of particulars, for the purpose of enhancing whatever sums the court might find to be due her under her claim for alimony. The court received said evidence and considered all the conditions and circumstances surrounding and connected with the plaintiff's present claim as set forth in her complaint and bill of particulars, for the purpose of ascertaining what was fairly and reasonably due to the plaintiff as alimony. Is this a case of estoppel by judgment?",
"The law in respect to such estoppel was fully considered and determined by the court in the case of Cromwell v.County of Sac, 94 U.S. 351, 24 L.Ed. 195. It was there decided that when the second suit is upon the same cause of action, and between the same parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented and determined in the first action; but when the second suit is upon a different cause of action, though between the same parties, the judgment in the former action operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. By the rule laid down in the case cited, the judgment in the suit for a divorce is conclusive here only as to the matters there litigated and determined.",
"This judgment is in the usual form, and shows that the court found that the defendant was the owner of real and personal estate to the value of *Page 639 $3,000, and that $1,000 was a reasonable portion of the defendant's estate to assign to the plaintiff. The General Statutes, § 4556, provides that \"the superior court may assign to any woman so divorced part of the estate of her husband, not exceeding one-third, may change her name, and may order alimony pendentelite to be paid to the wife in any complaint or cross bill for divorce pending in such court, upon such terms and conditions as it shall deem advisable.\" The court did not, under the provisions of this statute, make an allowance to the plaintiff in this case as a debt due to the wife, or as damages to be paid to her by her husband on their divorce, but as a part or proportion of his estate, fixed by the court in its discretion and appropriated to her, and to which she thereupon became legally entitled. Such a decree and assignment is specific in its character, and operates as a division or partition, between the husband and wife, of his property, in such proportion as the court by its decree determines. Lyon v. Lyon, 21 Conn. 185, 196, 197.",
"In other words, that which was determined by the judgment in the divorce case was an allowance out of the estate of the husband made for the support to which the wife was entitled, and of which she had been deprived through the husband's default in the performance of the marriage contract. Nothing was determined in the present case by the court below which was antagonistic to the adjudication in the divorce proceeding, and it is clear that the two suits were upon different causes of action. The defendant contends, in his second defense, that the plaintiff, upon the trial of the action for a divorce, for the purpose of increasing the amount that might be allowed her as alimony, sought to establish the claim now in question.",
"A sufficient answer to this claim is found in the fact that this evidence could only have *Page 640 been received for the purpose of ascertaining what was fairly due to the plaintiff as an allowance from her husband's estate. To reach such a conclusion it became the duty of the trial court not only to make proper deductions from the amount of the defendant's estate for his indebtedness to his wife and others, existing when the divorce was granted, but also to consider the financial condition of the wife aside from any allowance which might be made.",
"Burrows v. Purple,107 Mass. 428, 433. The court below has found that at and before the time when the decree for a divorce was rendered the husband was indebted to the wife in the sum of $1,600. It is not claimed that there is anything in the evidential and subordinate facts to justify us in questioning the legality and correctness of this conclusion. We have seen that the law provides that the allowance which was made to the plaintiff in a divorce case must be taken from the estate of the husband. That which the wife owned before the judgment in the divorce proceedings is still hers so far as that decree is concerned, and, while it was proper to take her property into consideration in that trial, yet the judgment there rendered in no way affected it. Fredericks v. Sault,19 Ind. App. 604, 49 N.E. 909; 1 Van Fleet on Former Adjudication, p. 461; Gray v. Thomas, 83 Tex. 246, 251,18 S.W. 721. One assignment of error is addressed to a question of variance between the allegations of the complaint and the proof offered to sustain them.",
"No evidence showing a variance is recited in the record, but the defendant in argument contends that it appears that the plaintiff's cause of action is based upon an allegation for money loaned, while the finding of facts shows that she is seeking damages for the conversion of her money. *Page 641 The complaint alleged a loaning of the money to the defendant, and that it was used by him in the purchase of certain real estate. The facts found warranted a judgment for money received under an agreement that it should be used for an express purpose, which the defendant failed to carry out. See Thresher v.Stonington Savings Bank, 68 Conn. 201, 204,36 A. 38; Wales v. Wetmore, 3 Day, 252. The complaint directed attention to the true nature of the plaintiff's loss, and this variance ought not to have misled the defendant or prejudiced him in maintaining his defense upon the merits of his case.",
"The entire evidence was received without any objection upon the ground of variance between allegation and proof. No motion was made to strike out the evidence upon the ground that it was not within the issues. The defect, if pointed out during the trial, could have been easily obviated or avoided. The defendant, by his failure to raise the question of variance in some form, waived the defect, and it is now too late to insist upon such a point upon appeal. Plumb v. Curtis, 66 Conn. 154, 165,33 A. 998; McNerney v. Barnes, 77 Conn. 155, 157,58 A. 714; Osborn v. Norwalk, 77 Conn. 663, 666, 60 A. 645;Fenton v. Mansfield, 82 Conn. 343, 73 A. 770. There is no error. In this opinion the other judges concurred."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3320127/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
716 F. Supp. 2d 1367 (2010) In re: AMERICAN-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION. MDL No. 2160. United States Judicial Panel on Multidistrict Litigation. June 8, 2010. Before JOHN G. HEYBURN II, Chairman, ROBERT L. MILLER, J., KATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, Jr., FRANK C. DAMRELL, Jr. and BARBARA S. JONES, Judges of the Panel.
ORDER DENYING TRANSFER JOHN G. HEYBURN, II, Chairman. Before the entire Panel: Before the Panel is a motion encompassing three actions in the Southern District of Florida and one action in the District of Arizona as listed on Schedule A.[1] Plaintiffs in one of the Southern District of Florida actions move, pursuant to 28 U.S.C. § 1407, to centralize this litigation in the Southern District of Florida. Plaintiffs in another Southern District of Florida action support the motion. Plaintiff in the District of Arizona action initially opposed the motion, but later withdrew his opposition with respect to the issue of centralization, while still opposing the Southern District of Florida as the prospective transferee district. Common defendant New NGC, Inc., d/b/a National Gypsum Company (National Gypsum) opposes the motion. In the event the Panel orders centralization over *1368 its objections, National Gypsum (1) requests that any centralized proceedings be limited to lawsuits seeking recovery for allegedly defective drywall manufactured by National Gypsum, and (2) supports centralization in the District of Arizona or the Western District of North Carolina. Defendants 84 Lumber Co. and Lowe's HIW, Inc., also oppose the motion. The remaining defendants in the actions before the PanelBanner Supply Co. and Pennyworth Homes, Inc.did not respond to the motion. The moving plaintiffs subsequently notified the Panel of four additional actions brought against National Gypsum in the Southern District of Florida and eight actions, brought against drywall manufacturers other than National Gypsum, in the Southern District of Mississippi. Plaintiffs in one of the Southern District of Mississippi actions supports the motion for centralization in the Southern District of Florida and proposes centralization in the Southern District of Mississippi in the alternative. Lafarge North America, Inc., Georgia-Pacific Gypsum LLC, and United States Gypsum Co., each of which is a defendant in two Southern District of Mississippi actions, oppose centralization of the actions against them with the actions against National Gypsum. On the basis of the papers filed and hearing session held, we are not persuaded that Section 1407 centralization would serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation at the present time. All actions identified by the moving plaintiffs have some commonality as to whether the drywall in the homes of the plaintiffs and putative class members has caused the damages and injuries alleged; however, the different manufacturer defendants produced the drywall using different, proprietary techniques and different sources. The proponents of centralization have not convinced us that any efficiencies from centralization would outweigh the multiple individualized issues, including ones of liability and causation, that these actions appear to present. The parties can avail themselves of alternatives to transfer under Section 1407 to achieve efficiencies in the pretrial proceedings. See, e.g., In re Eli Lilly and Co. (Cephalexin Monohydrate) Patent Litigation, 446 F. Supp. 242, 244 (J.P.M.L.1978); see also Manual for Complex Litigation, Fourth, § 20.14 (2004). Also, with only one exception, the actions against each manufacturer are already pending in the same district, and plaintiffs in many of the actions share counsel, which should further facilitate cooperation among the parties and coordination of the actions. IT IS THEREFORE ORDERED that the motion for transfer, pursuant to 28 U.S.C. § 1407, is denied.
SCHEDULE A MDL No. 2160 IN RE: AMERICAN-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION District of Arizona
Raymond Yee v. Lowe's HIW, Inc., et al., C.A. No. 3:09-8189 Southern District of Florida
Adolfo Cotilla, et al. v. New NGC, Inc., C.A. No. 0:10-60172
James Paige Visintin, et al. v. National Gypsum Co., et al., C.A. No. 0:10-60266 George Brincku, et al. v. National Gypsum Co., et al., C.A. No. 1:10-20109 NOTES [1] The motion initially encompassed an action in the Middle District of Florida; however, that action was dismissed pursuant to a stipulation of dismissal by the parties. | 10-30-2013 | [
"716 F. Supp. 2d 1367 (2010) In re: AMERICAN-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION. MDL No. 2160. United States Judicial Panel on Multidistrict Litigation. June 8, 2010. Before JOHN G. HEYBURN II, Chairman, ROBERT L. MILLER, J., KATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, Jr., FRANK C. DAMRELL, Jr. and BARBARA S. JONES, Judges of the Panel. ORDER DENYING TRANSFER JOHN G. HEYBURN, II, Chairman. Before the entire Panel: Before the Panel is a motion encompassing three actions in the Southern District of Florida and one action in the District of Arizona as listed on Schedule A. [1] Plaintiffs in one of the Southern District of Florida actions move, pursuant to 28 U.S.C. § 1407, to centralize this litigation in the Southern District of Florida. Plaintiffs in another Southern District of Florida action support the motion.",
"Plaintiff in the District of Arizona action initially opposed the motion, but later withdrew his opposition with respect to the issue of centralization, while still opposing the Southern District of Florida as the prospective transferee district. Common defendant New NGC, Inc., d/b/a National Gypsum Company (National Gypsum) opposes the motion. In the event the Panel orders centralization over *1368 its objections, National Gypsum (1) requests that any centralized proceedings be limited to lawsuits seeking recovery for allegedly defective drywall manufactured by National Gypsum, and (2) supports centralization in the District of Arizona or the Western District of North Carolina. Defendants 84 Lumber Co. and Lowe's HIW, Inc., also oppose the motion. The remaining defendants in the actions before the PanelBanner Supply Co. and Pennyworth Homes, Inc.did not respond to the motion. The moving plaintiffs subsequently notified the Panel of four additional actions brought against National Gypsum in the Southern District of Florida and eight actions, brought against drywall manufacturers other than National Gypsum, in the Southern District of Mississippi. Plaintiffs in one of the Southern District of Mississippi actions supports the motion for centralization in the Southern District of Florida and proposes centralization in the Southern District of Mississippi in the alternative. Lafarge North America, Inc., Georgia-Pacific Gypsum LLC, and United States Gypsum Co., each of which is a defendant in two Southern District of Mississippi actions, oppose centralization of the actions against them with the actions against National Gypsum.",
"On the basis of the papers filed and hearing session held, we are not persuaded that Section 1407 centralization would serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation at the present time. All actions identified by the moving plaintiffs have some commonality as to whether the drywall in the homes of the plaintiffs and putative class members has caused the damages and injuries alleged; however, the different manufacturer defendants produced the drywall using different, proprietary techniques and different sources. The proponents of centralization have not convinced us that any efficiencies from centralization would outweigh the multiple individualized issues, including ones of liability and causation, that these actions appear to present. The parties can avail themselves of alternatives to transfer under Section 1407 to achieve efficiencies in the pretrial proceedings. See, e.g., In re Eli Lilly and Co. (Cephalexin Monohydrate) Patent Litigation, 446 F. Supp. 242, 244 (J.P.M.L.1978); see also Manual for Complex Litigation, Fourth, § 20.14 (2004). Also, with only one exception, the actions against each manufacturer are already pending in the same district, and plaintiffs in many of the actions share counsel, which should further facilitate cooperation among the parties and coordination of the actions. IT IS THEREFORE ORDERED that the motion for transfer, pursuant to 28 U.S.C.",
"§ 1407, is denied. SCHEDULE A MDL No. 2160 IN RE: AMERICAN-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION District of Arizona Raymond Yee v. Lowe's HIW, Inc., et al., C.A. No. 3:09-8189 Southern District of Florida Adolfo Cotilla, et al. v. New NGC, Inc., C.A. No. 0:10-60172 James Paige Visintin, et al. v. National Gypsum Co., et al., C.A. No. 0:10-60266 George Brincku, et al. v. National Gypsum Co., et al., C.A. No. 1:10-20109 NOTES [1] The motion initially encompassed an action in the Middle District of Florida; however, that action was dismissed pursuant to a stipulation of dismissal by the parties."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2540700/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
GIBS0N District Judge. On February 27, 1929, this court fi ed an opmion, 32 F.(2d) 360, wherein Downs patent, No. 1,604,739', for an improvement ^ apparatus for promoting catalytic reaetions, was held to be valid and infringed by the defendant company. Subsequent to the filing of said opinion, counsel for the. defendant filed a petition for a rehearing. After notice to the plaintiff’s counsel, argumeat was had upon this petition wherein the matters set forth therein, as well as the issues of the ease, were discussed at eonsiderable length. Briefs were furnished by counsel for both parties, The petition contains some eight assign-men£s of reasons for the rehearing sought, Thé ^ reagon aggi d in substanee aR j t]lat tbe eollrt in its ini discloses & misllnderstanding of the construction and mode of operatioil of a Volhard petroleum £urnaee m operated by Henle, one of the antieipations of piaintiff>s patent claimed in defendant>s answer. Re-examination of the matter bas not satisñed the court that it fail-¿d to und6rstand the action of the Henle apparatus. The court, in describing the Vol-bard oven as used by Henle, mentioned an. iron tube surrounding the glass tube wherejn £be catalyst is contained. The defendant asserts that this iron tube was not an essential part of Henle’s operation of the Vol-bard oven. In the Henle publication refergnee was made to an Annalen article describing the Volhard apparatus. . This article, offered in connection with the Henle publieation, incorporates an iron tube in the Volhard apparatus. But whether the iron tube be included or not was immaterial in so far as concerned the point which the court was attemPting to make in respect to the Henle apparatus; that is, that no means were disclosed for the rapid transmission of heat from the catalyst to the kerosene bath. The second reason assigned for a rehearing asserts that the conclusions reached in the opinion are based upon the state of the /TÍ9°\°f % ^ on the state of the art in the year 1919, when tbe sieged invention of the patent in suit was made. The allegation in respeet to the basis of the conclusions in the opinion is *620quite without foundation in fact, and it would seem, might easily have been discemed by an examination of the whole opinion instead of picking out a single sentence and disassociating it from the rest of the opinion. This sentence was as follows: “Not to continue the enumeration of points of difference, in our judgment no chemical engineer in 1909 (the approximate date of the Henle article), without the exercise of invention, would have been able to construct any commercial apparatus for highly exothermic catalytic reactions which was based upon the principles of the Downs converter.” In this language we possibly did not clearly set forth our idea. What we were endeavoring to assert was that no chemical engineer possessed of a knowledge of the state of the art prior to 1909 would have been able, by means of the information fur- • -l i i. j.i tt i , . , ni-snea by the Jdenie article, to have conJ ^ ai«<vc> wu. structed a converter based upon the principies of the Downs patent. If this language was unfortunate, it should have been clanfied, it seems to us, by the fact that the opinion discussed all other anticipations offered in evidence either as anticipations pleaded in the answer or as showing the state of the art at the time of the date of the alleged invention. It is unnecessary to diseuss the remaining reasons set forth in the petition for a rehearing. They bring up nothing which was not fully argued and considered at the time the original opinion was filed. A reeonsideration of them — and we have endeavored to give them a careful reconsideration — has not brought any change in the conclusions first set forth. The motion for a rehearing will be denied. | 07-23-2022 | [
"GIBS0N District Judge. On February 27, 1929, this court fi ed an opmion, 32 F.(2d) 360, wherein Downs patent, No. 1,604,739', for an improvement ^ apparatus for promoting catalytic reaetions, was held to be valid and infringed by the defendant company. Subsequent to the filing of said opinion, counsel for the. defendant filed a petition for a rehearing. After notice to the plaintiff’s counsel, argumeat was had upon this petition wherein the matters set forth therein, as well as the issues of the ease, were discussed at eonsiderable length. Briefs were furnished by counsel for both parties, The petition contains some eight assign-men£s of reasons for the rehearing sought, Thé ^ reagon aggi d in substanee aR j t]lat tbe eollrt in its ini discloses & misllnderstanding of the construction and mode of operatioil of a Volhard petroleum £urnaee m operated by Henle, one of the antieipations of piaintiff>s patent claimed in defendant>s answer. Re-examination of the matter bas not satisñed the court that it fail-¿d to und6rstand the action of the Henle apparatus. The court, in describing the Vol-bard oven as used by Henle, mentioned an.",
"iron tube surrounding the glass tube wherejn £be catalyst is contained. The defendant asserts that this iron tube was not an essential part of Henle’s operation of the Vol-bard oven. In the Henle publication refergnee was made to an Annalen article describing the Volhard apparatus. . This article, offered in connection with the Henle publieation, incorporates an iron tube in the Volhard apparatus. But whether the iron tube be included or not was immaterial in so far as concerned the point which the court was attemPting to make in respect to the Henle apparatus; that is, that no means were disclosed for the rapid transmission of heat from the catalyst to the kerosene bath. The second reason assigned for a rehearing asserts that the conclusions reached in the opinion are based upon the state of the /TÍ9°\\°f % ^ on the state of the art in the year 1919, when tbe sieged invention of the patent in suit was made.",
"The allegation in respeet to the basis of the conclusions in the opinion is *620quite without foundation in fact, and it would seem, might easily have been discemed by an examination of the whole opinion instead of picking out a single sentence and disassociating it from the rest of the opinion. This sentence was as follows: “Not to continue the enumeration of points of difference, in our judgment no chemical engineer in 1909 (the approximate date of the Henle article), without the exercise of invention, would have been able to construct any commercial apparatus for highly exothermic catalytic reactions which was based upon the principles of the Downs converter.” In this language we possibly did not clearly set forth our idea. What we were endeavoring to assert was that no chemical engineer possessed of a knowledge of the state of the art prior to 1909 would have been able, by means of the information fur- • -l i i. j.i tt i , . , ni-snea by the Jdenie article, to have conJ ^ ai«<vc> wu. structed a converter based upon the principies of the Downs patent.",
"If this language was unfortunate, it should have been clanfied, it seems to us, by the fact that the opinion discussed all other anticipations offered in evidence either as anticipations pleaded in the answer or as showing the state of the art at the time of the date of the alleged invention. It is unnecessary to diseuss the remaining reasons set forth in the petition for a rehearing. They bring up nothing which was not fully argued and considered at the time the original opinion was filed. A reeonsideration of them — and we have endeavored to give them a careful reconsideration — has not brought any change in the conclusions first set forth. The motion for a rehearing will be denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6845287/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 4:18-cv-06753-PJH Document 73 Filed 10/18/19 Page 1 of 2
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9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 ) ) CASE NO.: 4:18-cv-06753-PJH 14 VLADI ZAKINOV, et al., ) ) [PROPOSED] ORDER GRANTING 15 Plaintiff, ) MOTION TO WITHDRAW AS ) COUNSEL FOR DEFENDANTS RIPPLE 16 ) LABS INC., XRP II, LLC, AND v. ) BRADLEY GARLINGHOUSE 17 ) ) 18 RIPPLE LABS INC., et al., ) ) 19 Defendants. ) ) 20 ) 21
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[PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANTS CASE NO. 4:18-CV-06753-PJH Case 4:18-cv-06753-PJH Document 73 Filed 10/18/19 Page 2 of 2
1 Pursuant to Civil Local Rules 5-1(c)(2)(E) and 11-5(a), Skadden, Arps, Slate, Meagher & 2 Flom LLP’s request to withdraw as counsel for Defendants Ripple Labs Inc., XRP II, LLC, and
3 Bradley Garlinghouse is GRANTED. S DISTRICT 4 IT IS SO ORDERED. ATE C T
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[PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANTS CASE NO. 4:18-CV-06753-PJH | 2019-10-18 | [
"Case 4:18-cv-06753-PJH Document 73 Filed 10/18/19 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 ) ) CASE NO. : 4:18-cv-06753-PJH 14 VLADI ZAKINOV, et al., ) ) [PROPOSED] ORDER GRANTING 15 Plaintiff, ) MOTION TO WITHDRAW AS ) COUNSEL FOR DEFENDANTS RIPPLE 16 ) LABS INC., XRP II, LLC, AND v. ) BRADLEY GARLINGHOUSE 17 ) ) 18 RIPPLE LABS INC., et al., ) ) 19 Defendants. ) ) 20 ) 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANTS CASE NO. 4:18-CV-06753-PJH Case 4:18-cv-06753-PJH Document 73 Filed 10/18/19 Page 2 of 2 1 Pursuant to Civil Local Rules 5-1(c)(2)(E) and 11-5(a), Skadden, Arps, Slate, Meagher & 2 Flom LLP’s request to withdraw as counsel for Defendants Ripple Labs Inc., XRP II, LLC, and 3 Bradley Garlinghouse is GRANTED. S DISTRICT 4 IT IS SO ORDERED. ATE C T O S U ED 5 RT ERED UNIT October 18, 2019 O ORD DATED:___________________ IT IS S R NIA 6 n Hamilto hyllis J.",
"NO Judge P FO 7 Honorable Phyllis Hamilton RT LI E R District Judge United States H A N C 8 F D I S TofI C Northern District TO R California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANTS CASE NO. 4:18-CV-06753-PJH"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/110599791/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
666 So.2d 285 (1996) Anita Rock FAUCHAUX v. The CITY OF NEW ORLEANS. No. 95-C-2500. Supreme Court of Louisiana. January 12, 1996. Rehearing Denied February 9, 1996. PER CURIAM. WRIT GRANTED. Claimant suffered an on-the-job injury in March of 1983 during her employment as a New Orleans city police officer. The City paid worker's compensation benefits until November of 1991, when benefits were terminated. Claimant thereafter filed a disputed claim with the Office of Worker's Compensation. The City filed an exception of lack of subject matter jurisdiction, arguing the OWC lacked jurisdiction over claims involving injuries occurring prior to July 1, 1983, and that proper jurisdiction was with the district court. The hearing officer maintained the exception. On appeal to the fourth circuit, the court of appeal reversed the hearing officer. The City filed a writ application with this court. Act No. 260 of 1989, Section 1 provides: (A) A claim arising from an injury which occurred prior to July 1, 1983, shall be resolved in the same manner as other civil matters. (B) A claim arising from an injury which occurred on or after July 1, 1983, shall be heard and resolved according to the procedures provided for in this Act. (C) However, claims filed with the director prior to January 1, 1990, but which are not resolved, whether by the parties' acceptance of the director's recommendations, compromise settlement, or judgment of a court, shall be resolved by the procedures in effect prior to January 1, 1990. Because of the transition from the handling of claims by district courts to the handling of claims by the Office of Worker's Compensation, it was necessary for the legislature to set forth rules explaining in which forum various claims should be brought. Claimant's injury occurred prior to July 1, 1983. Under Section 1(A) of the Act, such a claim shall clearly be resolved in the district courts. See Long v. Insurance Co. of North America, 595 So.2d 636 (La.1992). The court of appeal erred in reversing the hearing officer's granting of the City's exception of lack of subject matter jurisdiction. WRIT GRANTED, REVERSED AND RENDERED. | 10-30-2013 | [
"666 So.2d 285 (1996) Anita Rock FAUCHAUX v. The CITY OF NEW ORLEANS. No. 95-C-2500. Supreme Court of Louisiana. January 12, 1996. Rehearing Denied February 9, 1996. PER CURIAM. WRIT GRANTED. Claimant suffered an on-the-job injury in March of 1983 during her employment as a New Orleans city police officer. The City paid worker's compensation benefits until November of 1991, when benefits were terminated. Claimant thereafter filed a disputed claim with the Office of Worker's Compensation. The City filed an exception of lack of subject matter jurisdiction, arguing the OWC lacked jurisdiction over claims involving injuries occurring prior to July 1, 1983, and that proper jurisdiction was with the district court. The hearing officer maintained the exception. On appeal to the fourth circuit, the court of appeal reversed the hearing officer.",
"The City filed a writ application with this court. Act No. 260 of 1989, Section 1 provides: (A) A claim arising from an injury which occurred prior to July 1, 1983, shall be resolved in the same manner as other civil matters. (B) A claim arising from an injury which occurred on or after July 1, 1983, shall be heard and resolved according to the procedures provided for in this Act. (C) However, claims filed with the director prior to January 1, 1990, but which are not resolved, whether by the parties' acceptance of the director's recommendations, compromise settlement, or judgment of a court, shall be resolved by the procedures in effect prior to January 1, 1990. Because of the transition from the handling of claims by district courts to the handling of claims by the Office of Worker's Compensation, it was necessary for the legislature to set forth rules explaining in which forum various claims should be brought. Claimant's injury occurred prior to July 1, 1983.",
"Under Section 1(A) of the Act, such a claim shall clearly be resolved in the district courts. See Long v. Insurance Co. of North America, 595 So.2d 636 (La.1992). The court of appeal erred in reversing the hearing officer's granting of the City's exception of lack of subject matter jurisdiction. WRIT GRANTED, REVERSED AND RENDERED."
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Allowable Subject Matter Claim(s) 1, 3-11, 13-20 is/are allowed. The following is an examiner’s statement of reasons for allowance: With regards to claim 1, the prior art fails to teach or suggest a/an vehicle requiring: wherein the controller is configured to determine an image characteristic value from an image of the destination obtained from the external server, and to determine the lighting adjustment value by applying a weight to the reference characteristic value and the image characteristic value, in combination with the other limitations of the claim. With regards to claim 11, the prior art fails to teach or suggest a/an method requiring: obtaining, by the controller, an image of the destination from the external server, and determining an image characteristic value from the image of the destination, wherein the controlling a lighting device comprises:
With regards to dependent claim(s) 3-10, 13-20; it/they are allowable in virtue of their dependency. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RENAN LUQUE whose telephone number is (571)270-1044. The examiner can normally be reached on M-F 9:00AM-5:00PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander H Taningco can be reached on 5712728048. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access
/RENAN LUQUE/ Primary Examiner, Art Unit 2844 | 2021-10-05T08:35:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C.",
"102(a)(2) prior art against the later invention. Allowable Subject Matter Claim(s) 1, 3-11, 13-20 is/are allowed. The following is an examiner’s statement of reasons for allowance: With regards to claim 1, the prior art fails to teach or suggest a/an vehicle requiring: wherein the controller is configured to determine an image characteristic value from an image of the destination obtained from the external server, and to determine the lighting adjustment value by applying a weight to the reference characteristic value and the image characteristic value, in combination with the other limitations of the claim. With regards to claim 11, the prior art fails to teach or suggest a/an method requiring: obtaining, by the controller, an image of the destination from the external server, and determining an image characteristic value from the image of the destination, wherein the controlling a lighting device comprises: With regards to dependent claim(s) 3-10, 13-20; it/they are allowable in virtue of their dependency.",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RENAN LUQUE whose telephone number is (571)270-1044. The examiner can normally be reached on M-F 9:00AM-5:00PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander H Taningco can be reached on 5712728048. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR.",
"Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access /RENAN LUQUE/ Primary Examiner, Art Unit 2844"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-19.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from an award to the mother and sister of deceased employee, on the ground of dependency. Deceased lived at home and contributed to the support of his mother and sister fifteen dollars each two weeks, and also contributed other amounts from time to time, helped pay taxes and other indebtedness. His father did not have steady work, averaging about twenty dollars to thirty dollars a week, when working. The home was assessed for $2,600 and was mortgaged for $2,100. The father also owed a note for $450. Deceased contributed ten dollars a month to help pay the note. The sole question raised is that of dependency, and the evidence supports the finding of the Board as to such dependency. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, MeNamee, Crapser and Bliss, JJ. | 01-08-2022 | [
"Appeal from an award to the mother and sister of deceased employee, on the ground of dependency. Deceased lived at home and contributed to the support of his mother and sister fifteen dollars each two weeks, and also contributed other amounts from time to time, helped pay taxes and other indebtedness. His father did not have steady work, averaging about twenty dollars to thirty dollars a week, when working. The home was assessed for $2,600 and was mortgaged for $2,100. The father also owed a note for $450. Deceased contributed ten dollars a month to help pay the note. The sole question raised is that of dependency, and the evidence supports the finding of the Board as to such dependency. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, MeNamee, Crapser and Bliss, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5356756/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
El Juez Asociado Sr. Aldret emitió la opinión del tribunal. La demanda en este caso contiene tres causas de acción, subordinadas las dos últimas a la primera. En ésta alega la demandante y apelante, Julia Domitila Castro, que nació en el año 1886 mientras su madre Lorenza Castro Cruz, vivía *678públicamente en concubinato desde el año 1884 con Joaquín Leandro Solís, cansante de los demandados, en la casa de éste, siendo sn sola y única concubina cuando ambos no tenían impedimento legal para contraer matrimonio y sin que ella entonces mantuviera trato o relaciones de clase alguna con otro hombre. También expone que en 1897 murió sin testa-mento dicho Joaquín Leandro Solís, habiendo sido los de-mandados declarados sus herederos abintestato por auto judicial de 1898 y que éstos están impedidos hoy de negar el estado de la demandante como hija natural de Joaquín Lean-dro Solís Kercado porque éste la consideró y trató siempre como hija, llamándola así públicamente, teniéndola en tal con-cepto, atendiendo a su sostenimiento y educación y despi-diéndose de ella como tal hija en los momentos de su muerte y en presencia de los demás hermanos; y además porque los demandados, pública y privadamente, de palabra y por escri-to han reconocido a la demandante como tal hija natural de Joaquín Leandro Solís Kercado. La segunda causa de ac-ción se funda en que a la muerte de Joaquín Leandro Solís Kercado, los demandados se posesionaron de sus bienes y, sin contar con la demandante, practicaron la partición y liqui-dación de ese caudal, que se repartieron, haciéndolo figurar con un montante de 63,816 pesos 8 centavos, cuando en reali-dad era de 150,000 pesos, el que en su mayor parte han ena-jenado, por lo que la demandante está impedida de obtener la rescisión de tal partición en cuanto los bienes han pasado a terceros, y se niegan a entregarle los 11,500 pesos que a ella correspondían por su legítima como hija natural. La tercera causa de acción está basada en que las rentas o pro-ductos de su cuota hereditaria asciende desde 1897 en que murió su padre, a la cantidad de 16,800 pesos que' los deman-dados se niegan a entregarle. Las peticiones que se hicieron a la corte fueron que declarase: que la demandante, en con-currencia con los hijos legítimos de Joaquín Leandro Solís Kercado, es heredera de éste, ascendiendo su participación a 11,500 pesos; que los demandados deben reintegrárselos y *679también pagarle 16,800 pesos como indemnización por las rentas o productos de su haber hereditario. Los demandados excepcionaron la primera cansa de ac-ción por el fnndamento de no adncir hechos qne determinasen nna cansa de acción y también por la de prescripción de la acción qne se trata de ejercitar, de conformidad con los artí-culos 199 y 1840 del Código Civil vigente. Las segnnda y ter-cera causas de acción lo fueron por la de falta de hechos deter-minantes de cansa de acción. La corte de distrito sostuvo la excepción de prescripción y en tal sentido se registró sentencia en contra de la deman-dante, con las costas, la que por ésta fué apelada para ante esta Corte Suprema. Sostiene la parte apelante en su alegato, qne la corte inferior erró al estimar qne en la primera cansa de acción se ejercita la de filiación y por tanto que está prescrita, porque habiendo nacido la demandante durante el concubinato pú-blico de su madre con Joaquín Leandro Solís Kercado y en la casa de éste cuando ambos podían contraer matrimonio, adquirió el estado de hija natural reconocida de dicho señor y por consiguiente no ejercita ni necesita ejercitar la acción de filiación por lo que, estando ya reconocida, se limita a pedir su cuota hereditaria. La ley que regula la condición de hija natural de la demandante es la 11 de Toro que regía en la fecha de su naci-miento, la que dice así: “E porque no se pueda dubdar cuáles son fijos naturales, ordena-mos y mandamos que entonces se digan ser fijos naturales, cuando al tiempo que nacieren o fueren concebidos, sus padres podían casar con sus madres justamente sin dispensación; con tanto que el padre lo reconozca por su fijo, puesto que haya tenido la mujer de quien lo ovo en su casa, ni sea una sola. Ca concurriendo en el fijo las cualidades susodichas, mandamos que el fijo sea natural.” 1 Llamas y Molina 207, Comentario a las leyes de Toro. Si bien en el derecho romano era indispensable que la con-cubina viviera en la casa del concubinario y por ello el hijo *680nacido en tales condiciones tenía la presunción de ser hijo natural del concabinario, requisito que las leyes de partidas no exigían expresamente, sin embargo, al extender la ley 11 de Toro el beneficio de la naturalidad a los hijos de mujeres que no fueran propiamente concubinas, borró la presunción que antes existía para los nacidos de concubinas y desde en-tonces es requisito indispensable para que el bijo tuviera el concepto de natural que el padre le réconociera, expresa o tácitamente. Por consiguiente, el mero hecho de que la de-mandante naciera en la casa de Joaquín Leandro Solís Ker-cado cuando éste tenía en su casa como, concubina a la madre de la apelante no es por sí solo bastante para darle el estado •de hija natural que aun en el derecho anterior' a la ley de Toro, sólo establecía una presunción, y por tanto sujeta a la prueba de que los hechos de que dimanaba fueran ciertos, por lo que aun entonces era necesario acreditarlos ante los tribunales, para que como consecuencia de ellos se hiciera la declaración de ser hijo natural, lo que equivalía a ejercitar la acción de filiación. En el derecho de la citada ley de Toro tales hechos implicarían un reconocimiento tácito del padre, pero sujetos al juicio de filiación. De todos modos, ya esos hechos se consideren como presunción del estado de hija natural, como entiende la apelante, o sirvan para probar el reconocimiento tácito, como entendemos nosotros, no tienen otra alcance que el de servir de prueba de la acción de filia-ción por lo que debemos concluir que la primera cansa de acción no tiene otro alcance que ese, demostrado además poi-que la demanda consigna hechos tendentes a demostrar el reconocimiento por actos y palabras del alegado padre. Si se sostiene que por la demanda sólo se ejercita la acción de participación hereditaria, no alegando la demandante que ha sido reconocida de una manera solemne y auténtica, no tendría causa de acción. Matienzo v. Morales, 16. D. P. R., 588; Calaf v. Calaf, 17 D. P. R., 198. Ahora bien, cuando en 1897 murió Joaquín Leandro Solís Kercado, la demandante era menor de edad y tenía viva su *681acción de acuerdo con el artículo 137 del Código Civil Español, mas disponiéndose por el 199 del Código Civil Revisado que la acción sólo durase hasta dos años después de ser el hijo mayor de edad y habiéndola alcanzado la demandante en 1907, de acnerdo con el artículo 317 que la fija a los veinte y un años cumplidos, se habían extinguido ya esos dos años cuando en 1911 presentó su demanda y por tanto estaba pres-crita, por lo que no cometió error la corte inferior al declarar su prescripción. Que la acción de filiación es prescriptible y que a las naci-das bajo el imperio de las leyes de Toro les son aplicables las disposiciones de los códigos posteriores sobre prescripción, son materias, tan ampliamente discutidas y resueltas en va-rias sentencia de este Tribunal Supremo, que nos basta remi-tirnos a ellas, con mayor razón cuando no es el punto discu-tido, por la parte apelante. Véanse los casos de Gual v. Bonafoux, 15 D. P. R., 559; Amsterdam v. Puente, 16 D. P. R., 554; Escobar v. Escobar, 16 D. P. R., 590; Rijos v. Folgueras, 16 D. P. R., 624, confirmada ésta en 24 de febrero de este año por la Corte Suprema de los Estados Unidos, 227 U. S., 375; Calaf v. Calaf, 17 D. P. R., 198. Es innecesario considerar las otras dos causas de acción porque como están subordinadas a la primera, al estar pres-crita ésta, no tienen razón de ser. La sentencia apelada debe ser confirmada.
Confirmada.
Jueces concurrentes: Sres. Presidente Hernández y Aso-ciados MacLeary, Wolf y del Toro. | 11-23-2022 | [
"El Juez Asociado Sr. Aldret emitió la opinión del tribunal. La demanda en este caso contiene tres causas de acción, subordinadas las dos últimas a la primera. En ésta alega la demandante y apelante, Julia Domitila Castro, que nació en el año 1886 mientras su madre Lorenza Castro Cruz, vivía *678públicamente en concubinato desde el año 1884 con Joaquín Leandro Solís, cansante de los demandados, en la casa de éste, siendo sn sola y única concubina cuando ambos no tenían impedimento legal para contraer matrimonio y sin que ella entonces mantuviera trato o relaciones de clase alguna con otro hombre. También expone que en 1897 murió sin testa-mento dicho Joaquín Leandro Solís, habiendo sido los de-mandados declarados sus herederos abintestato por auto judicial de 1898 y que éstos están impedidos hoy de negar el estado de la demandante como hija natural de Joaquín Lean-dro Solís Kercado porque éste la consideró y trató siempre como hija, llamándola así públicamente, teniéndola en tal con-cepto, atendiendo a su sostenimiento y educación y despi-diéndose de ella como tal hija en los momentos de su muerte y en presencia de los demás hermanos; y además porque los demandados, pública y privadamente, de palabra y por escri-to han reconocido a la demandante como tal hija natural de Joaquín Leandro Solís Kercado. La segunda causa de ac-ción se funda en que a la muerte de Joaquín Leandro Solís Kercado, los demandados se posesionaron de sus bienes y, sin contar con la demandante, practicaron la partición y liqui-dación de ese caudal, que se repartieron, haciéndolo figurar con un montante de 63,816 pesos 8 centavos, cuando en reali-dad era de 150,000 pesos, el que en su mayor parte han ena-jenado, por lo que la demandante está impedida de obtener la rescisión de tal partición en cuanto los bienes han pasado a terceros, y se niegan a entregarle los 11,500 pesos que a ella correspondían por su legítima como hija natural.",
"La tercera causa de acción está basada en que las rentas o pro-ductos de su cuota hereditaria asciende desde 1897 en que murió su padre, a la cantidad de 16,800 pesos que' los deman-dados se niegan a entregarle. Las peticiones que se hicieron a la corte fueron que declarase: que la demandante, en con-currencia con los hijos legítimos de Joaquín Leandro Solís Kercado, es heredera de éste, ascendiendo su participación a 11,500 pesos; que los demandados deben reintegrárselos y *679también pagarle 16,800 pesos como indemnización por las rentas o productos de su haber hereditario. Los demandados excepcionaron la primera cansa de ac-ción por el fnndamento de no adncir hechos qne determinasen nna cansa de acción y también por la de prescripción de la acción qne se trata de ejercitar, de conformidad con los artí-culos 199 y 1840 del Código Civil vigente.",
"Las segnnda y ter-cera causas de acción lo fueron por la de falta de hechos deter-minantes de cansa de acción. La corte de distrito sostuvo la excepción de prescripción y en tal sentido se registró sentencia en contra de la deman-dante, con las costas, la que por ésta fué apelada para ante esta Corte Suprema. Sostiene la parte apelante en su alegato, qne la corte inferior erró al estimar qne en la primera cansa de acción se ejercita la de filiación y por tanto que está prescrita, porque habiendo nacido la demandante durante el concubinato pú-blico de su madre con Joaquín Leandro Solís Kercado y en la casa de éste cuando ambos podían contraer matrimonio, adquirió el estado de hija natural reconocida de dicho señor y por consiguiente no ejercita ni necesita ejercitar la acción de filiación por lo que, estando ya reconocida, se limita a pedir su cuota hereditaria.",
"La ley que regula la condición de hija natural de la demandante es la 11 de Toro que regía en la fecha de su naci-miento, la que dice así: “E porque no se pueda dubdar cuáles son fijos naturales, ordena-mos y mandamos que entonces se digan ser fijos naturales, cuando al tiempo que nacieren o fueren concebidos, sus padres podían casar con sus madres justamente sin dispensación; con tanto que el padre lo reconozca por su fijo, puesto que haya tenido la mujer de quien lo ovo en su casa, ni sea una sola. Ca concurriendo en el fijo las cualidades susodichas, mandamos que el fijo sea natural.” 1 Llamas y Molina 207, Comentario a las leyes de Toro. Si bien en el derecho romano era indispensable que la con-cubina viviera en la casa del concubinario y por ello el hijo *680nacido en tales condiciones tenía la presunción de ser hijo natural del concabinario, requisito que las leyes de partidas no exigían expresamente, sin embargo, al extender la ley 11 de Toro el beneficio de la naturalidad a los hijos de mujeres que no fueran propiamente concubinas, borró la presunción que antes existía para los nacidos de concubinas y desde en-tonces es requisito indispensable para que el bijo tuviera el concepto de natural que el padre le réconociera, expresa o tácitamente.",
"Por consiguiente, el mero hecho de que la de-mandante naciera en la casa de Joaquín Leandro Solís Ker-cado cuando éste tenía en su casa como, concubina a la madre de la apelante no es por sí solo bastante para darle el estado •de hija natural que aun en el derecho anterior' a la ley de Toro, sólo establecía una presunción, y por tanto sujeta a la prueba de que los hechos de que dimanaba fueran ciertos, por lo que aun entonces era necesario acreditarlos ante los tribunales, para que como consecuencia de ellos se hiciera la declaración de ser hijo natural, lo que equivalía a ejercitar la acción de filiación. En el derecho de la citada ley de Toro tales hechos implicarían un reconocimiento tácito del padre, pero sujetos al juicio de filiación. De todos modos, ya esos hechos se consideren como presunción del estado de hija natural, como entiende la apelante, o sirvan para probar el reconocimiento tácito, como entendemos nosotros, no tienen otra alcance que el de servir de prueba de la acción de filia-ción por lo que debemos concluir que la primera cansa de acción no tiene otro alcance que ese, demostrado además poi-que la demanda consigna hechos tendentes a demostrar el reconocimiento por actos y palabras del alegado padre.",
"Si se sostiene que por la demanda sólo se ejercita la acción de participación hereditaria, no alegando la demandante que ha sido reconocida de una manera solemne y auténtica, no tendría causa de acción. Matienzo v. Morales, 16. D. P. R., 588; Calaf v. Calaf, 17 D. P. R., 198. Ahora bien, cuando en 1897 murió Joaquín Leandro Solís Kercado, la demandante era menor de edad y tenía viva su *681acción de acuerdo con el artículo 137 del Código Civil Español, mas disponiéndose por el 199 del Código Civil Revisado que la acción sólo durase hasta dos años después de ser el hijo mayor de edad y habiéndola alcanzado la demandante en 1907, de acnerdo con el artículo 317 que la fija a los veinte y un años cumplidos, se habían extinguido ya esos dos años cuando en 1911 presentó su demanda y por tanto estaba pres-crita, por lo que no cometió error la corte inferior al declarar su prescripción.",
"Que la acción de filiación es prescriptible y que a las naci-das bajo el imperio de las leyes de Toro les son aplicables las disposiciones de los códigos posteriores sobre prescripción, son materias, tan ampliamente discutidas y resueltas en va-rias sentencia de este Tribunal Supremo, que nos basta remi-tirnos a ellas, con mayor razón cuando no es el punto discu-tido, por la parte apelante.",
"Véanse los casos de Gual v. Bonafoux, 15 D. P. R., 559; Amsterdam v. Puente, 16 D. P. R., 554; Escobar v. Escobar, 16 D. P. R., 590; Rijos v. Folgueras, 16 D. P. R., 624, confirmada ésta en 24 de febrero de este año por la Corte Suprema de los Estados Unidos, 227 U. S., 375; Calaf v. Calaf, 17 D. P. R., 198. Es innecesario considerar las otras dos causas de acción porque como están subordinadas a la primera, al estar pres-crita ésta, no tienen razón de ser. La sentencia apelada debe ser confirmada. Confirmada. Jueces concurrentes: Sres.",
"Presidente Hernández y Aso-ciados MacLeary, Wolf y del Toro."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8542608/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing EATON VANCE MANAGEMENT The Eaton Vance Building 255 State Street Boston, MA 02109 Telephone: (617) 482-8260 Telecopy: (617) 338-8054 March 1, 2007 Securities and Exchange Commission treet, N.E. Washington, DC 20549 Attention: Office of Filings, Information & Consumer Services Re: Form N-1A Filing for Eaton Vance Mutual Funds Trust (the Registrant) on behalf of its series Eaton Vance Cash Management Fund Eaton Vance Money Market Fund Eaton Vance Tax Free Reserves (the Funds) Post-Effective Amendment No. 122 (1933 Act File No. 02-90946) Amendment No. 125 (1940 Act File No. 811-04015) (the Amendment) Ladies and Gentlemen: On behalf of the above-referenced Registrant, transmitted herewith pursuant to (1) the Securities Act of 1933, as amended (the 1933 Act), and Rules 472 and 485(a)(1) thereunder, (2) the Investment Company Act of 1940, as amended (the 1940 Act), and the rules promulgated pursuant to Section 8(b) thereunder, (3) the General Instructions to Form N-1A, and (4) Rules 101 and 102 under Regulation S-T, is the Amendment, including a prospectus and statement of additional information (SAI) for the Registrant and exhibits. The Amendment transmitted herewith contains conformed signature pages, the manually signed originals of which are maintained at the offices of the Registrant. The Amendment is being filed pursuant to paragraph (a)(1) of Rule 485 under the 1933 Act and will become effective automatically on May 1, 2007. The Amendment is being filed pursuant to Rule 485(a) solely for the purpose of registering Class B shares of the Cash Management Fund. The disclosure relating to Class B shares of the Fund is substantially the same as the disclosure relating to Class B shares of other Eaton Vance Funds, including Eaton Vance Government Obligations Fund or Eaton Vance High Income Fund, both series of the Registrant, which was contained in Post-Effective Amendment No. 121 to Registrants registration statement filed with the Securities and Exchange Commission pursuant to Rule 485(b) on February 27, 2007 (Accession No. 0000940394-07-009176). Securities and Exchange Commission March 1, 2007 Page Two Based on the foregoing, the Registrant hereby requests that the Staff, in reviewing the prospectus and SAI included in the Amendment, use the selective review procedure set forth in Investment Company Act Release No. 13768 (February 15, 1984) in processing the Amendment. If you have any questions or comments concerning the enclosed Amendment, please contact the undersigned at (617) 598-8029 or fax (617) 338-8054. Very truly yours, /s/ Christopher Sechler Christopher Sechler, Esq. Vice President | [
"Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing EATON VANCE MANAGEMENT The Eaton Vance Building 255 State Street Boston, MA 02109 Telephone: (617) 482-8260 Telecopy: (617) 338-8054 March 1, 2007 Securities and Exchange Commission treet, N.E. Washington, DC 20549 Attention: Office of Filings, Information & Consumer Services Re: Form N-1A Filing for Eaton Vance Mutual Funds Trust (the Registrant) on behalf of its series Eaton Vance Cash Management Fund Eaton Vance Money Market Fund Eaton Vance Tax Free Reserves (the Funds) Post-Effective Amendment No. 122 (1933 Act File No. 02-90946) Amendment No. 125 (1940 Act File No.",
"811-04015) (the Amendment) Ladies and Gentlemen: On behalf of the above-referenced Registrant, transmitted herewith pursuant to (1) the Securities Act of 1933, as amended (the 1933 Act), and Rules 472 and 485(a)(1) thereunder, (2) the Investment Company Act of 1940, as amended (the 1940 Act), and the rules promulgated pursuant to Section 8(b) thereunder, (3) the General Instructions to Form N-1A, and (4) Rules 101 and 102 under Regulation S-T, is the Amendment, including a prospectus and statement of additional information (SAI) for the Registrant and exhibits. The Amendment transmitted herewith contains conformed signature pages, the manually signed originals of which are maintained at the offices of the Registrant. The Amendment is being filed pursuant to paragraph (a)(1) of Rule 485 under the 1933 Act and will become effective automatically on May 1, 2007. The Amendment is being filed pursuant to Rule 485(a) solely for the purpose of registering Class B shares of the Cash Management Fund. The disclosure relating to Class B shares of the Fund is substantially the same as the disclosure relating to Class B shares of other Eaton Vance Funds, including Eaton Vance Government Obligations Fund or Eaton Vance High Income Fund, both series of the Registrant, which was contained in Post-Effective Amendment No.",
"121 to Registrants registration statement filed with the Securities and Exchange Commission pursuant to Rule 485(b) on February 27, 2007 (Accession No. 0000940394-07-009176). Securities and Exchange Commission March 1, 2007 Page Two Based on the foregoing, the Registrant hereby requests that the Staff, in reviewing the prospectus and SAI included in the Amendment, use the selective review procedure set forth in Investment Company Act Release No. 13768 (February 15, 1984) in processing the Amendment. If you have any questions or comments concerning the enclosed Amendment, please contact the undersigned at (617) 598-8029 or fax (617) 338-8054. Very truly yours, /s/ Christopher Sechler Christopher Sechler, Esq.",
"Vice President"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Ray, C. J. This suit was to foreclose a mortgage made by Samuel B. McKeehan to secure several notes, one of which had been assigned to the plaintiff. The complaint is in one paragraph, and alleges that Samuel B. McKeehan in his lifetime executed certain promissory notes, oue of which was afterwards assigned to the plaintiff’ Jesse B. Henshaw; that to secure these notes, he and his wife, Pamela McKeehan, at the same time executed to M. "W. Thomas, the original payee of said notes, a mortgage on certain real estate in Johnson county, Indiana, copies of which mortgage and the note held by the plaintiff are filed with the complaint; that said mortgage was duly recorded in Johnson county; that said McKeehan died, leaving certain persons named in the complaint his heirs, all of wdiom are made parties; that the note sued on was filed in the Common Pleas Court as a claim against said estate, and admitted, and payments made thereon, leaving a balance due and unpaid after final settlement of the estate; that one John Clarke claimed an interest in the mortgaged premises, and was also made a defendant. Prayer for judgment of foreclosure for the balance due on the note. On the calling of the cause the defendants, except John Clarke, were called and defaulted. Clarke answered in four paragraphs. *1451. As fo one undivided half of the mortgaged premises, admitting the execution of the note and mortgage and alleging that afterwards said McKeehan sold and conveyed one half of said premises to one Lysander Adams, and that at the time of his death said McKeehan owned but one half of said property; that after his death the note sued on was filed by the plaintiff against his estate, and on final distribution he received his pro rata share of the assets. 2. As to the other undivided half of said premises, admitting the making of the note and mortgage and the death of said McKeehan,and alleging that an administrator v7as appointed; that the claim sued on was filed and admitted as a claim against said estate; that said administrator pi-oeured an.order of the proper court to sell said half of said pi’emises,under which said? half was sold to Lysander Adams for two thousand dollars, the full value thereof and the best price that could be obtained therefor, all of which was done with the full knowledge of the plaintiff; that said estate was settled as insolvent; that the whole of the proceeds of the sale of said half of said mortgaged premises was paid on the claim of said plaintiff and other notes secured by said mortgage in just and ratable pi’opoi’tion; that said plaintiff received the amount paid on his claim with full knowledge that said half of said premises had been so sold, and that the amount paid him was a pai’t of the proceeds of said sale. Copies of the pi’oceedings in the Common Pleas Court are made exhibits. 8. And as to the whole of said complaint, admitting the making of the note and mortgage, the death of McKeehan, &e., and alleging a sale of one half of said premises by Mc-Keehau to Lysander Adams for four thousand dollars, its full value; that after the death of McKeehan the notes of said Adams for said purchase money came into the hands of the administrator as a part of the assets' of said estate, which plaintiff well knew; that said plaintiff and all the holders of the other notes secured by said mortgage filed *146all tlieir notes in the Common Pleas Court against said estate; all of which were allowed by said court; that the administrator of McKechan’s estate procured an order of court, with the full knowledge of said plaintiff', to sell the remaining half of said premises; that under said order he sold said half to Lysander Adams for two thousand dollars, the full value and best bid; that said plaintiff' had notice of said order of sale; that said estate was settled as insolvent, and the whole assets, including the proceeds of Adams’ notes for the half sold by McKeehan and the proceeds of the sale of the other half by the administrator, were paid on the mortgage debts, including that of plaintiff’, in ratable proportion; that the plaintiff’, wi th a full knowledge of all the foregoing facts, and that the money so paid was the proceeds of said sales of the mortgaged premises, received his portion of said assets on said final settlement, and still retains the same. Copies of proceedings in court are made exhibits. 4. Payment generally. To the whole of this answer the plaintiff demurred, filing separate demurrers to each paragraph. The court sustained the demurrers to the first, second and third paragraphs of the answer, and the defendant Clarke withdrew the fourth. To the sustaining of said demurrers Clarke excepted, and declining to amend, the court found for the plaintiff’. The transcript shows that the proceeding was this: all claims were filed with the administrator; ho paid on them proportionally; when funds failed he.sold real estate, without any special order of court as to the mortgages and proceeds ; the proceeds went into the general fund and were paid pro rata on all debts. The ruling of the court below was correct. The filing of the note as a claim against the estate entitled the holder to a pro rata dividend out of the assets of the estate. The personal property is the primary fund from which debts are to be paid, and nothing less than full payment of the notes releases the mortgage, unless the property so incumbered *147be sold under the provisions of the statute authorizing a sale for this purpose. 2 G. & H. 512, sec. 89; Foltz v. Peters 16 Ind. 244. The answer does not allege that the sales of the property so incumbered were made free from the lien of the mortgage. The fact that appellee had notice of the sale and received a pro rata portion of the proceeds, is of no importance, as the purchaser took the land subject to his mortgage. G. M. Overstreet and A. B. Humter, for appellant. W. Henderson, 8. E. Perkins, L. Jordan, and 8. E. Perkins, Jr., for appellee. The judgment is affirmed, with five per cent, damages and costs. | 07-24-2022 | [
"Ray, C. J. This suit was to foreclose a mortgage made by Samuel B. McKeehan to secure several notes, one of which had been assigned to the plaintiff. The complaint is in one paragraph, and alleges that Samuel B. McKeehan in his lifetime executed certain promissory notes, oue of which was afterwards assigned to the plaintiff’ Jesse B. Henshaw; that to secure these notes, he and his wife, Pamela McKeehan, at the same time executed to M. \"W. Thomas, the original payee of said notes, a mortgage on certain real estate in Johnson county, Indiana, copies of which mortgage and the note held by the plaintiff are filed with the complaint; that said mortgage was duly recorded in Johnson county; that said McKeehan died, leaving certain persons named in the complaint his heirs, all of wdiom are made parties; that the note sued on was filed in the Common Pleas Court as a claim against said estate, and admitted, and payments made thereon, leaving a balance due and unpaid after final settlement of the estate; that one John Clarke claimed an interest in the mortgaged premises, and was also made a defendant. Prayer for judgment of foreclosure for the balance due on the note. On the calling of the cause the defendants, except John Clarke, were called and defaulted.",
"Clarke answered in four paragraphs. *1451. As fo one undivided half of the mortgaged premises, admitting the execution of the note and mortgage and alleging that afterwards said McKeehan sold and conveyed one half of said premises to one Lysander Adams, and that at the time of his death said McKeehan owned but one half of said property; that after his death the note sued on was filed by the plaintiff against his estate, and on final distribution he received his pro rata share of the assets. 2. As to the other undivided half of said premises, admitting the making of the note and mortgage and the death of said McKeehan,and alleging that an administrator v7as appointed; that the claim sued on was filed and admitted as a claim against said estate; that said administrator pi-oeured an.order of the proper court to sell said half of said pi’emises,under which said?",
"half was sold to Lysander Adams for two thousand dollars, the full value thereof and the best price that could be obtained therefor, all of which was done with the full knowledge of the plaintiff; that said estate was settled as insolvent; that the whole of the proceeds of the sale of said half of said mortgaged premises was paid on the claim of said plaintiff and other notes secured by said mortgage in just and ratable pi’opoi’tion; that said plaintiff received the amount paid on his claim with full knowledge that said half of said premises had been so sold, and that the amount paid him was a pai’t of the proceeds of said sale. Copies of the pi’oceedings in the Common Pleas Court are made exhibits. 8. And as to the whole of said complaint, admitting the making of the note and mortgage, the death of McKeehan, &e., and alleging a sale of one half of said premises by Mc-Keehau to Lysander Adams for four thousand dollars, its full value; that after the death of McKeehan the notes of said Adams for said purchase money came into the hands of the administrator as a part of the assets' of said estate, which plaintiff well knew; that said plaintiff and all the holders of the other notes secured by said mortgage filed *146all tlieir notes in the Common Pleas Court against said estate; all of which were allowed by said court; that the administrator of McKechan’s estate procured an order of court, with the full knowledge of said plaintiff', to sell the remaining half of said premises; that under said order he sold said half to Lysander Adams for two thousand dollars, the full value and best bid; that said plaintiff' had notice of said order of sale; that said estate was settled as insolvent, and the whole assets, including the proceeds of Adams’ notes for the half sold by McKeehan and the proceeds of the sale of the other half by the administrator, were paid on the mortgage debts, including that of plaintiff’, in ratable proportion; that the plaintiff’, wi th a full knowledge of all the foregoing facts, and that the money so paid was the proceeds of said sales of the mortgaged premises, received his portion of said assets on said final settlement, and still retains the same.",
"Copies of proceedings in court are made exhibits. 4. Payment generally. To the whole of this answer the plaintiff demurred, filing separate demurrers to each paragraph. The court sustained the demurrers to the first, second and third paragraphs of the answer, and the defendant Clarke withdrew the fourth. To the sustaining of said demurrers Clarke excepted, and declining to amend, the court found for the plaintiff’. The transcript shows that the proceeding was this: all claims were filed with the administrator; ho paid on them proportionally; when funds failed he.sold real estate, without any special order of court as to the mortgages and proceeds ; the proceeds went into the general fund and were paid pro rata on all debts. The ruling of the court below was correct. The filing of the note as a claim against the estate entitled the holder to a pro rata dividend out of the assets of the estate.",
"The personal property is the primary fund from which debts are to be paid, and nothing less than full payment of the notes releases the mortgage, unless the property so incumbered *147be sold under the provisions of the statute authorizing a sale for this purpose. 2 G. & H. 512, sec. 89; Foltz v. Peters 16 Ind. 244. The answer does not allege that the sales of the property so incumbered were made free from the lien of the mortgage. The fact that appellee had notice of the sale and received a pro rata portion of the proceeds, is of no importance, as the purchaser took the land subject to his mortgage. G. M. Overstreet and A. B. Humter, for appellant. W. Henderson, 8. E. Perkins, L. Jordan, and 8. E. Perkins, Jr., for appellee.",
"The judgment is affirmed, with five per cent, damages and costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7037826/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
806 A.2d 180 (2002) James BREINER, Appellant, v. DAKA, INC., Appellee. No. 00-CV-1611. District of Columbia Court of Appeals. Argued December 11, 2001. Decided August 29, 2002. Lawrence J. Sherman, Washington, DC, for appellant. Keith A. Dorman, with whom Robert M. Disch was on the brief, for appellee. Before TERRY, RUIZ, and WASHINGTON, Associate Judges. RUIZ, Associate Judge: This appeal arises from the Superior Court's denial of James Breiner's motion for attorneys' fees following a jury award in his favor in an age discrimination action against Daka, Inc. The trial court based its ruling on Superior Court Civil Rule 54(d)(2)(B), which requires that a motion for fees be filed within fourteen days of entry of judgment. Breiner's principal contention on appeal is that the fourteen-day requirement of Rule 54(d)(2)(B), which was imposed by an amendment that became effective on June 1, 1995, was not applicable to his case. We agree that the amended rule does not apply under the facts presented here, and therefore reverse and remand for the trial court to consider the attorneys' fees issue in a manner *181 consistent with the previous version of Rule 54.
I. On January 30, 1995, a jury returned a verdict in favor of Breiner for his age-based, hostile work environment claim against Daka, Inc., in the amount of $10,000 in compensatory damages and $390,000 in punitive damages. Judgment was filed by the trial court on February 3, and docketed on February 7, 1995. Daka filed a motion for judgment notwithstanding the verdict, or in the alternative for remittitur, which was denied by the trial court on March 13, and docketed on March 15, 1995. Daka timely appealed on April 14, 1995 and filed a supersedeas bond. On May 3, 1995, Breiner filed a motion in the trial court for extension of time to file a cross-appeal.[1] Judge Stephen G. Milliken, who had presided at the trial, denied the motion on June 7, and also denied Breiner's motion for reconsideration on June 20, 1995. Breiner appealed, and this court sua sponte summarily affirmed these rulings in an unpublished order. Breiner v. Daka, Inc., No. 95-CV-1391 (D.C. October 18, 1995). On May 14, 1996, while Daka's appeal of the judgment in Breiner's favor was still pending before this court (after oral arguments had been heard), Breiner filed a motion in Superior Court seeking attorneys' fees and costs incurred in prosecuting the lawsuit. Daka moved to strike, contending that Breiner's motion for fees was untimely under Superior Court Civil Rule 54(d)(2)(B). On July 2, 1996, the trial court denied Daka's motion to strike, but also denied Breiner's motion for attorney's fees and costs "without prejudice to renewal upon remand"presumably a reference to the pendency of Daka's appeal. On April 30, 1998, a panel of this court issued an opinion affirming the judgment and upholding the entire award of compensatory and punitive damages. See Daka, Inc. v. Breiner, 711 A.2d 86 (D.C.1998). Daka's petition for rehearing en banc was denied on September 21, 1998. On February 19, 1999, the parties stipulated that the judgment for $400,000, with interest, had been satisfied by Daka, but specifically stated that this payment was "not intended to and does not address, encompass or satisfy [Daka's] obligations, if any, resulting from the Judgment to pay [Breiner's] attorneys' fees and costs. Nor does the payment by [Daka] constitute any waiver by [Daka] of any defenses [Daka] may have to any claims by [Breiner] for attorneys' fees or costs." Breiner sent a letter dated March 15, 1999 to Judge Milliken in which he sought to renew his petition for attorney's fees "[n]ow that all appeal rights have been exhausted," and requested advice on how to proceed.[2] Nothing in the record on appeal indicates that Judge Milliken responded to this letter. In June of 1999, Judge Gregory Mize[3] granted Daka's motion to release the supersedeas bond stating that "[i]f and when a judgment for a sum certain for attorneys' fees is entered, *182 at that time a new bond may well be appropriate for defendant to obtain a further stay."[4] On October 7, 1999, Breiner filed a "Supplemental Motion for Attorney's Fees and Costs" claiming the issue of attorneys' fees was ripe for resolution.[5] Judge Milliken denied Breiner's motion for attorneys' fees and costs associated with both the trial and appeal on the following year, ruling that it was untimely under Rule 54(d)(2)(B). In his order, Judge Milliken recognized that when the motion for fees was first filed more than four year earlier (on May 14, 1996), he "could have reviewed the claim for attorneys' fees, and probably would have if the motion had been filed promptly, in order that the motion could be reviewed along with the merits of the case on appeal." Judge Milliken was of the view that Breiner had interpreted his July 1996 order denying Daka's motion to strike and denying Breiner's motion for fees without prejudice "too broadly" in construing it to mean that the fourteen-day filing deadline in Rule 54(d)(2)(B) did not apply. He stated that "[e]ven if I could or should have ruled upon the 1996 motion while the matter was pending appeal is immaterial," because the motion was denied without prejudice in 1996, and the fourteen-day filing deadline of Rule 54(d)(2)(B) applied to the subsequent 1999 filing despite its being titled as a "supplemental motion." Finally, he noted "it would not be just or practicable to allow such repeatedly late submissions even if the `supplemental' filing is taken as a memorandum in support of the 1996 filing," and observed that Breiner failed to provide any reason to support a finding of excusable neglect for the late filing of his request for fees and costs.
II. Prior to June 1, 1995, Rule 54(d) provided in relevant part that "[e]xcept when express provision therefor is made either in an applicable statute or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs[.]" The rulewhich discussed only "costs"did not then set forth any particular period for filing a motion for attorneys' fees. Thus, a motion for such fees, filed after a successful private action pursuant to the District of Columbia Human Rights Act, see D.C.Code §§ 1-2553(a)(1)(E), -2556(b) (1999), was not subject to any specific time limitation. Cf. Kelly v. Clyburn, 490 A.2d 188, 190 (D.C. 1985) (absent statutory language specifying time by which request for attorneys' fees filed in child support and custody case pursuant to D.C.Code § 16-918(c) must be made, trial court required to "exercise its discretion to deny fees `in cases in which a post-judgment motion unfairly surprises or prejudices the affected party'") (quoting White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 454, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982)). *183 By action of the Board of Judges of the Superior Court and pursuant to D.C.Code § 11-946 (2001), an amendment to Rule 54(d) became effective June 1, 1995, which required that: [u]nless otherwise provided by statute or order of the Court, the motion [for attorneys' fees] must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the Court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made. Super Ct. Civ. R. 54(d)(2)(B). The Board of Judges of the Superior Court ordered that the new fourteen-day filing requirement would "take effect June 1, 1995 and govern all proceedings thereafter commenced and, insofar as it is just and practicable, all proceedings therein pending." Board of Judges Order, 123 Wash. Law Rep. 1121 (June 9, 1995). In an explanatory note, the Board discussed the proposed changes in greater detail: Subparagraph (d)(2)(B) requires motions for attorneys' fees to be filed and served no later than 14 days after judgment unless otherwise specified by the Court or by statute. This provision will give the opposing party notice of the claim before the time for appeal has lapsed, and will facilitate the Court's review of the services performed. The filing of a motion for attorneys' fees will not affect the finality or appealability of a judgment. If the merits of the case are appealed, the Court may rule on the claim for fees, may defer the ruling, or may deny the motion without prejudice and provide a new period for filing after resolution of the appeal. Rule 54(d)(2)(B). The 14 day period will begin again after entry of a new judgment following reversal or remand by the Court of Appeals or granting the motion under Rule 59. Proposed Amendments to SCR-CIVIL 54, 123 Wash. Law Rep 52 (Jan. 10, 1995). On appeal Breiner makes several arguments as to why there was no basis to require compliance with the fourteen-day time constraint imposed by Rule 54(d)(2)(B). First, he argues that the trial court's judgment became final in this case when entered in February 1995well before the date when the amended rule became effective on June 1, 1995. Breiner also asserts that the amended rule was not triggered when this court affirmed Daka's appeal, because judgment was never reentered to comply with any order on remand. Finally, even if this case was on June 1, 1995, a "pending proceeding" to which the new rule could be applied, Breiner contends that the trial judge failed to make any specific finding that applying the fourteen-day filing requirement in Rule 54(d)(2)(B) was "just and practicable" under the circumstances of this case, as provided by the Board of Judges' order. Instead, according to Breiner, the judge applied the rule simply because the motion for attorneys' fees was filed in May 1996, after the effective date of the new rule. Daka responds that Breiner's delay in making his initial (May 1996) request for feesfiled eleven months after the trial judge denied Breiner's request to late-file a cross-appeal and fifteen months after entry of judgmentwas inexcusable and contrary to the rules of the Superior Court. It argues that the amended rule should be applied to Breiner, who was still making filings in the Superior Court seeking permission to file the cross-appeal, after the effective date of the amendment. Citing our ruling in Natural Motion by *184 Sandra, Inc. v. District of Columbia Comm'n on Human Rights, 726 A.2d 194 (D.C.1999), that by analogy to Rule 54(d)(2)(B) a petition for attorneys' fees is timely if filed within fourteen days of the agency's final ruling on pending motions to reconsider, Daka argues that Breiner could have timely filed within fourteen days of the trial court's decision of June 20, 1995 denying his motion to reconsider the denial of his motion to late-file a cross-appeal. This failure to timely file, according to Daka, constituted a waiver of Breiner's claim for fees, which was repeated when Breiner again failed to file a motion for fees until more than a year after the September 1998 denial of Daka's petition for rehearing en banc. Although there is no doubt that Breiner could have filed his motion earlier and in compliance with the amended rule, the question before us is whether he was required to do so, which was the basis of the trial court's order denying his motion for fees. The disposition of this case turns on whether the trial court erred in applying the fourteen-day filing requirement in the 1995 amendment to Rule 54(d)(2)(B). The Board of Judges' order provides that the Superior Court must apply the amended rule to cases commenced on or after June 1, 1995. This case was commenced before that date. Because the amended rule also applies to cases "pending" on that date where it is "just and practicable," we must first determine whether this case was "pending" in Superior Court at the time the new rule became effective.[6] We agree with Breiner that the case was not pending in Superior Court when the amendment became effective on June 1, 1995, as all proceedings involving the merits of the case had concluded in the trial court by that time. After the jury verdict and docketing of judgment in February of 1995, the case remained with the trial court for its consideration of Daka's posttrial motions. Once the court's order denied these motions on March 13, 1995, and this order was docketed on March 15, 1995, there was a final judgment on the merits, which Daka appealed. See Dyer v. Bergman & Associates, Inc., 635 A.2d 1285, 1287 (D.C.1993) ("To be final, and therefore reviewable, an order must dispose of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already entered.") (citation and internal quotation omitted). *185 We are not persuaded by Daka's contention that for present purposes the case remained pending before the trial court until the resolution of Breiner's request to late-file a cross-appeal. In Natural Motion, we looked to Rule 54(d)(2)(B) for guidance in holding that a plaintiff's motion for attorneys' fees was timely where the fee petition was made to the District of Columbia Human Rights Commission well after an order had been issued by the Commission but before it resolved a motion to reconsider. See Natural Motion, 726 A.2d at 196-197. Specifically, we stated that "an agency decision is not final for purpose of appeal to this court until all motions for reconsideration have been acted upon by the agency." Id. at 197. The present case, however, is distinguishable from that situation where a motion for reconsideration as to the merits of the casewhich addresses the grounds for an agency decisionextends the entering of a final, appealable order until such a motion has been decided. Until the agency's reasoning is final, the matter is not ripe for judicial review. Daka filed its notice of appeal from the final judgment docketed on March 15, 1995.[7] Breiner's motion to extend the time to file a cross-appeal on May 3, 1995, made nineteen days after the notice of appeal was filed, did not affect the finality of the judgment, because it was not in the nature of a motion which would toll the time for filing a notice of appeal. See D.C.App. R. 4(a)(2) (running of time for filing notice of appeal is terminated by a motion for "judgment notwithstanding the verdict; to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; to vacate, alter or amend the order or judgment; for new trial; for reconsideration if authorized by the rules of the Superior Court; and any other motion seeking relief in the nature of the foregoing"). Instead, it was simply a motion pleading excusable neglect. See D.C.App. R. 4(a)(4); Super. Ct. Civ. R. 60(b) ("A motion under this subdivision (b) [e.g., excusable neglect] does not affect the finality of a judgment or suspend its operation"). The trial court's rulings in June of 1995 denying Breiner's request to extend the time to cross-appeal, which this court later sua sponte summarily affirmed, did not affect the judgment of the trial court disposing of the case on the merits. We therefore conclude that the case was not "pending" before the Superior Court for the purpose of applying Rule 54(d)(2)(B).[8] Having concluded that the case was neither "pending" in Superior Court *186 at the time the fourteen-day filing requirement of Rule 54(d)(2)(B) went into effect, nor remanded to the trial court when we affirmed the judgment on appeal, we hold that the trial court should have considered Breiner's motions for attorneys' fees under the previous version of Rule 54(d). We reverse and remand the case for the trial court to determine the matter of attorneys' fees under the applicable rule. See D.C.Code § 1-2553(a)(1)(E), -2556(b) ("court may grant relief it deems appropriate" including the "payment of reasonable attorney fees"); see also Kelly, 490 A.2d at 190 (trial court required to "exercise its discretion to deny fees `in cases in which a post-judgment motion unfairly surprises or prejudices the affected party'") (quoting White, 455 U.S. at 454, 102 S. Ct. 1162).[9] So ordered. NOTES [1] Under D.C.App. R. 4(a)(1), cross-appeals must be filed within fourteen days of the filing of the first notice of appeal. [2] According to a footnote in his brief, appellant contacted Judge Milliken's chambers in December 1998 "at the time defendant's appeal rights [to the United States Supreme Court] were just expiring" and was "advised to write a letter to the Court raising his concerns regarding the filing of attorneys' fees, which he did on March 15th, [1999] after negotiating the partial satisfaction of judgment." [3] Judge Mize apparently presided over the case during this phase of the litigation in the place of Judge Milliken. [4] Breiner maintains that on May 27, 1999 he opposed Daka's May 5th motion to discharge and release the supersedeas bond and renewed and supplemented his earlier motion for attorneys' fees and costs. Although he claims the opposition was not included as part of the record "due to an apparent administrative error by the Clerk for the Superior Court," Daka correctly notes the docket sheet does not include Breiner's alleged May 27th motion. Breiner has not sought to supplement the record on appeal with the motion he claims he filed. [5] While unsubstantiated in the record, Breiner contends that he filed the motion in early October because he learned from Judge Mize's law clerk that the judge intended to issue an order stating that a motion for attorneys' fees would be due by the end of that month. [6] Although the trial court did not specifically address whether it considered the case to have been "pending" on June 1, 1995, its use of the phrase "just and practicable" in denying the motion for fees as untimely suggests that it considered that the amended rule applied because the case had been pending when it became effective. Daka's counsel conceded at oral argument that the reference to "therein pending" refers to the case pending in the Superior Court. We agree. As we read the Board of Judges' order, the fourteenday period established by Rule 54(d)(2)(B) begins to run from the date of "judgment" in the trial court. Therefore, "therein pending" must be understood as referring to a case pending in the trial court; otherwise it would be impossible to apply the rule if it were understood to mean "pending on appeal." Moreover, this reading is consistent with the purpose of the fourteen-day provision to "give the opposing party notice of the claim before the time for appeal has lapsed, and ... facilitate the [Superior] Court's review of the services performed." Proposed Amendments to SCR-CIVIL 54, 123 Wash. Law Rep 52 (Jan. 10, 1995). See Super. Ct. Civ. R. 58. ("Entry of judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except that, when a timely motion for attorney's fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4(a)(4) of the District of Columbia Court of Appeals as a timely motion under Rule 59."). [7] Under D.C.App. R. 4(a)(3), a judgment is "deemed to be entered" for the purpose of calculating the time to appeal, "when it is entered on the civil docket ... by the Clerk of the Superior Court." [8] Daka cites several decisions applying the federal equivalent of Rule 54(d)(2)(B)-which is identical to the Superior Court rule-to bar attorneys' fees requested after the fourteenday period has elapsed. These cases are distinguishable, however, in that they involved entry of final judgment in the trial court after the December 1, 1993, date that federal Rule 54(d)(2)(B) became effective. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 940 F. Supp. 437, 441 nn. 3 & 4 (D.R.I.1996) (attorneys' fees denied because no excusable neglect shown where federal circuit court, following reversal by Supreme Court, entered amended mandate after the effective date of amended federal rule, and under local court rules amended mandate "served as the final judgment for purposes of Rule 54, and started the 14 day time limit" for filing a motion for fees) (citing Central States, Southeast and Southwest Areas Pension Fund v. Art Pape Transfer, Inc., 1995 WL 653992, 1995 U.S. Dist. LEXIS 16496 (N.D.Ill) (applying Rule 54(d)(2)(B) to deny fees where entry of judgment occurred after plaintiff's filing of motion to alter or amend was denied after effective date of amended rule)). [9] We note that the trial court expressed the view that Breiner had not provided any reason to support a finding of excusable neglect that would permit his delayed filing of the motion for fees. It may well be that, on remand, the trial court will consider the motion to have been filed too late even if the fourteen-day period does not apply. That determination should take into account the reasons for delay, prejudice to the defendant, the sizeable punitive award in this case, and the goal of awarding attorneys' fees to "promote the public interest by ensuring that private citizens have the means to enforce anti-discrimination statutes." Natural Motion, 726 A.2d at 197 n. 6. It is for the trial court to exercise its discretion in the first instance, applying the proper factors. See Johnson v. United States, 398 A.2d 354, 365 (D.C.1979). | 10-30-2013 | [
"806 A.2d 180 (2002) James BREINER, Appellant, v. DAKA, INC., Appellee. No. 00-CV-1611. District of Columbia Court of Appeals. Argued December 11, 2001. Decided August 29, 2002. Lawrence J. Sherman, Washington, DC, for appellant. Keith A. Dorman, with whom Robert M. Disch was on the brief, for appellee. Before TERRY, RUIZ, and WASHINGTON, Associate Judges. RUIZ, Associate Judge: This appeal arises from the Superior Court's denial of James Breiner's motion for attorneys' fees following a jury award in his favor in an age discrimination action against Daka, Inc. The trial court based its ruling on Superior Court Civil Rule 54(d)(2)(B), which requires that a motion for fees be filed within fourteen days of entry of judgment. Breiner's principal contention on appeal is that the fourteen-day requirement of Rule 54(d)(2)(B), which was imposed by an amendment that became effective on June 1, 1995, was not applicable to his case. We agree that the amended rule does not apply under the facts presented here, and therefore reverse and remand for the trial court to consider the attorneys' fees issue in a manner *181 consistent with the previous version of Rule 54. I.",
"On January 30, 1995, a jury returned a verdict in favor of Breiner for his age-based, hostile work environment claim against Daka, Inc., in the amount of $10,000 in compensatory damages and $390,000 in punitive damages. Judgment was filed by the trial court on February 3, and docketed on February 7, 1995. Daka filed a motion for judgment notwithstanding the verdict, or in the alternative for remittitur, which was denied by the trial court on March 13, and docketed on March 15, 1995. Daka timely appealed on April 14, 1995 and filed a supersedeas bond. On May 3, 1995, Breiner filed a motion in the trial court for extension of time to file a cross-appeal.",
"[1] Judge Stephen G. Milliken, who had presided at the trial, denied the motion on June 7, and also denied Breiner's motion for reconsideration on June 20, 1995. Breiner appealed, and this court sua sponte summarily affirmed these rulings in an unpublished order. Breiner v. Daka, Inc., No. 95-CV-1391 (D.C. October 18, 1995). On May 14, 1996, while Daka's appeal of the judgment in Breiner's favor was still pending before this court (after oral arguments had been heard), Breiner filed a motion in Superior Court seeking attorneys' fees and costs incurred in prosecuting the lawsuit. Daka moved to strike, contending that Breiner's motion for fees was untimely under Superior Court Civil Rule 54(d)(2)(B).",
"On July 2, 1996, the trial court denied Daka's motion to strike, but also denied Breiner's motion for attorney's fees and costs \"without prejudice to renewal upon remand\"presumably a reference to the pendency of Daka's appeal. On April 30, 1998, a panel of this court issued an opinion affirming the judgment and upholding the entire award of compensatory and punitive damages. See Daka, Inc. v. Breiner, 711 A.2d 86 (D.C.1998). Daka's petition for rehearing en banc was denied on September 21, 1998. On February 19, 1999, the parties stipulated that the judgment for $400,000, with interest, had been satisfied by Daka, but specifically stated that this payment was \"not intended to and does not address, encompass or satisfy [Daka's] obligations, if any, resulting from the Judgment to pay [Breiner's] attorneys' fees and costs. Nor does the payment by [Daka] constitute any waiver by [Daka] of any defenses [Daka] may have to any claims by [Breiner] for attorneys' fees or costs.\" Breiner sent a letter dated March 15, 1999 to Judge Milliken in which he sought to renew his petition for attorney's fees \"[n]ow that all appeal rights have been exhausted,\" and requested advice on how to proceed.",
"[2] Nothing in the record on appeal indicates that Judge Milliken responded to this letter. In June of 1999, Judge Gregory Mize[3] granted Daka's motion to release the supersedeas bond stating that \"[i]f and when a judgment for a sum certain for attorneys' fees is entered, *182 at that time a new bond may well be appropriate for defendant to obtain a further stay. \"[4] On October 7, 1999, Breiner filed a \"Supplemental Motion for Attorney's Fees and Costs\" claiming the issue of attorneys' fees was ripe for resolution. [5] Judge Milliken denied Breiner's motion for attorneys' fees and costs associated with both the trial and appeal on the following year, ruling that it was untimely under Rule 54(d)(2)(B). In his order, Judge Milliken recognized that when the motion for fees was first filed more than four year earlier (on May 14, 1996), he \"could have reviewed the claim for attorneys' fees, and probably would have if the motion had been filed promptly, in order that the motion could be reviewed along with the merits of the case on appeal.\" Judge Milliken was of the view that Breiner had interpreted his July 1996 order denying Daka's motion to strike and denying Breiner's motion for fees without prejudice \"too broadly\" in construing it to mean that the fourteen-day filing deadline in Rule 54(d)(2)(B) did not apply. He stated that \"[e]ven if I could or should have ruled upon the 1996 motion while the matter was pending appeal is immaterial,\" because the motion was denied without prejudice in 1996, and the fourteen-day filing deadline of Rule 54(d)(2)(B) applied to the subsequent 1999 filing despite its being titled as a \"supplemental motion.\"",
"Finally, he noted \"it would not be just or practicable to allow such repeatedly late submissions even if the `supplemental' filing is taken as a memorandum in support of the 1996 filing,\" and observed that Breiner failed to provide any reason to support a finding of excusable neglect for the late filing of his request for fees and costs. II. Prior to June 1, 1995, Rule 54(d) provided in relevant part that \"[e]xcept when express provision therefor is made either in an applicable statute or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs[.]\" The rulewhich discussed only \"costs\"did not then set forth any particular period for filing a motion for attorneys' fees. Thus, a motion for such fees, filed after a successful private action pursuant to the District of Columbia Human Rights Act, see D.C.Code §§ 1-2553(a)(1)(E), -2556(b) (1999), was not subject to any specific time limitation.",
"Cf. Kelly v. Clyburn, 490 A.2d 188, 190 (D.C. 1985) (absent statutory language specifying time by which request for attorneys' fees filed in child support and custody case pursuant to D.C.Code § 16-918(c) must be made, trial court required to \"exercise its discretion to deny fees `in cases in which a post-judgment motion unfairly surprises or prejudices the affected party'\") (quoting White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 454, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982)). *183 By action of the Board of Judges of the Superior Court and pursuant to D.C.Code § 11-946 (2001), an amendment to Rule 54(d) became effective June 1, 1995, which required that: [u]nless otherwise provided by statute or order of the Court, the motion [for attorneys' fees] must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the Court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made.",
"Super Ct. Civ. R. 54(d)(2)(B). The Board of Judges of the Superior Court ordered that the new fourteen-day filing requirement would \"take effect June 1, 1995 and govern all proceedings thereafter commenced and, insofar as it is just and practicable, all proceedings therein pending.\" Board of Judges Order, 123 Wash. Law Rep. 1121 (June 9, 1995). In an explanatory note, the Board discussed the proposed changes in greater detail: Subparagraph (d)(2)(B) requires motions for attorneys' fees to be filed and served no later than 14 days after judgment unless otherwise specified by the Court or by statute. This provision will give the opposing party notice of the claim before the time for appeal has lapsed, and will facilitate the Court's review of the services performed. The filing of a motion for attorneys' fees will not affect the finality or appealability of a judgment.",
"If the merits of the case are appealed, the Court may rule on the claim for fees, may defer the ruling, or may deny the motion without prejudice and provide a new period for filing after resolution of the appeal. Rule 54(d)(2)(B). The 14 day period will begin again after entry of a new judgment following reversal or remand by the Court of Appeals or granting the motion under Rule 59. Proposed Amendments to SCR-CIVIL 54, 123 Wash. Law Rep 52 (Jan. 10, 1995). On appeal Breiner makes several arguments as to why there was no basis to require compliance with the fourteen-day time constraint imposed by Rule 54(d)(2)(B). First, he argues that the trial court's judgment became final in this case when entered in February 1995well before the date when the amended rule became effective on June 1, 1995. Breiner also asserts that the amended rule was not triggered when this court affirmed Daka's appeal, because judgment was never reentered to comply with any order on remand. Finally, even if this case was on June 1, 1995, a \"pending proceeding\" to which the new rule could be applied, Breiner contends that the trial judge failed to make any specific finding that applying the fourteen-day filing requirement in Rule 54(d)(2)(B) was \"just and practicable\" under the circumstances of this case, as provided by the Board of Judges' order. Instead, according to Breiner, the judge applied the rule simply because the motion for attorneys' fees was filed in May 1996, after the effective date of the new rule.",
"Daka responds that Breiner's delay in making his initial (May 1996) request for feesfiled eleven months after the trial judge denied Breiner's request to late-file a cross-appeal and fifteen months after entry of judgmentwas inexcusable and contrary to the rules of the Superior Court. It argues that the amended rule should be applied to Breiner, who was still making filings in the Superior Court seeking permission to file the cross-appeal, after the effective date of the amendment. Citing our ruling in Natural Motion by *184 Sandra, Inc. v. District of Columbia Comm'n on Human Rights, 726 A.2d 194 (D.C.1999), that by analogy to Rule 54(d)(2)(B) a petition for attorneys' fees is timely if filed within fourteen days of the agency's final ruling on pending motions to reconsider, Daka argues that Breiner could have timely filed within fourteen days of the trial court's decision of June 20, 1995 denying his motion to reconsider the denial of his motion to late-file a cross-appeal.",
"This failure to timely file, according to Daka, constituted a waiver of Breiner's claim for fees, which was repeated when Breiner again failed to file a motion for fees until more than a year after the September 1998 denial of Daka's petition for rehearing en banc. Although there is no doubt that Breiner could have filed his motion earlier and in compliance with the amended rule, the question before us is whether he was required to do so, which was the basis of the trial court's order denying his motion for fees. The disposition of this case turns on whether the trial court erred in applying the fourteen-day filing requirement in the 1995 amendment to Rule 54(d)(2)(B).",
"The Board of Judges' order provides that the Superior Court must apply the amended rule to cases commenced on or after June 1, 1995. This case was commenced before that date. Because the amended rule also applies to cases \"pending\" on that date where it is \"just and practicable,\" we must first determine whether this case was \"pending\" in Superior Court at the time the new rule became effective. [6] We agree with Breiner that the case was not pending in Superior Court when the amendment became effective on June 1, 1995, as all proceedings involving the merits of the case had concluded in the trial court by that time. After the jury verdict and docketing of judgment in February of 1995, the case remained with the trial court for its consideration of Daka's posttrial motions.",
"Once the court's order denied these motions on March 13, 1995, and this order was docketed on March 15, 1995, there was a final judgment on the merits, which Daka appealed. See Dyer v. Bergman & Associates, Inc., 635 A.2d 1285, 1287 (D.C.1993) (\"To be final, and therefore reviewable, an order must dispose of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already entered.\")",
"(citation and internal quotation omitted). *185 We are not persuaded by Daka's contention that for present purposes the case remained pending before the trial court until the resolution of Breiner's request to late-file a cross-appeal. In Natural Motion, we looked to Rule 54(d)(2)(B) for guidance in holding that a plaintiff's motion for attorneys' fees was timely where the fee petition was made to the District of Columbia Human Rights Commission well after an order had been issued by the Commission but before it resolved a motion to reconsider. See Natural Motion, 726 A.2d at 196-197. Specifically, we stated that \"an agency decision is not final for purpose of appeal to this court until all motions for reconsideration have been acted upon by the agency.\" Id.",
"at 197. The present case, however, is distinguishable from that situation where a motion for reconsideration as to the merits of the casewhich addresses the grounds for an agency decisionextends the entering of a final, appealable order until such a motion has been decided. Until the agency's reasoning is final, the matter is not ripe for judicial review. Daka filed its notice of appeal from the final judgment docketed on March 15, 1995. [7] Breiner's motion to extend the time to file a cross-appeal on May 3, 1995, made nineteen days after the notice of appeal was filed, did not affect the finality of the judgment, because it was not in the nature of a motion which would toll the time for filing a notice of appeal. See D.C.App. R. 4(a)(2) (running of time for filing notice of appeal is terminated by a motion for \"judgment notwithstanding the verdict; to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; to vacate, alter or amend the order or judgment; for new trial; for reconsideration if authorized by the rules of the Superior Court; and any other motion seeking relief in the nature of the foregoing\").",
"Instead, it was simply a motion pleading excusable neglect. See D.C.App. R. 4(a)(4); Super. Ct. Civ. R. 60(b) (\"A motion under this subdivision (b) [e.g., excusable neglect] does not affect the finality of a judgment or suspend its operation\"). The trial court's rulings in June of 1995 denying Breiner's request to extend the time to cross-appeal, which this court later sua sponte summarily affirmed, did not affect the judgment of the trial court disposing of the case on the merits. We therefore conclude that the case was not \"pending\" before the Superior Court for the purpose of applying Rule 54(d)(2)(B). [8] Having concluded that the case was neither \"pending\" in Superior Court *186 at the time the fourteen-day filing requirement of Rule 54(d)(2)(B) went into effect, nor remanded to the trial court when we affirmed the judgment on appeal, we hold that the trial court should have considered Breiner's motions for attorneys' fees under the previous version of Rule 54(d). We reverse and remand the case for the trial court to determine the matter of attorneys' fees under the applicable rule.",
"See D.C.Code § 1-2553(a)(1)(E), -2556(b) (\"court may grant relief it deems appropriate\" including the \"payment of reasonable attorney fees\"); see also Kelly, 490 A.2d at 190 (trial court required to \"exercise its discretion to deny fees `in cases in which a post-judgment motion unfairly surprises or prejudices the affected party'\") (quoting White, 455 U.S. at 454, 102 S. Ct. 1162). [9] So ordered. NOTES [1] Under D.C.App. R. 4(a)(1), cross-appeals must be filed within fourteen days of the filing of the first notice of appeal. [2] According to a footnote in his brief, appellant contacted Judge Milliken's chambers in December 1998 \"at the time defendant's appeal rights [to the United States Supreme Court] were just expiring\" and was \"advised to write a letter to the Court raising his concerns regarding the filing of attorneys' fees, which he did on March 15th, [1999] after negotiating the partial satisfaction of judgment.\"",
"[3] Judge Mize apparently presided over the case during this phase of the litigation in the place of Judge Milliken. [4] Breiner maintains that on May 27, 1999 he opposed Daka's May 5th motion to discharge and release the supersedeas bond and renewed and supplemented his earlier motion for attorneys' fees and costs. Although he claims the opposition was not included as part of the record \"due to an apparent administrative error by the Clerk for the Superior Court,\" Daka correctly notes the docket sheet does not include Breiner's alleged May 27th motion.",
"Breiner has not sought to supplement the record on appeal with the motion he claims he filed. [5] While unsubstantiated in the record, Breiner contends that he filed the motion in early October because he learned from Judge Mize's law clerk that the judge intended to issue an order stating that a motion for attorneys' fees would be due by the end of that month. [6] Although the trial court did not specifically address whether it considered the case to have been \"pending\" on June 1, 1995, its use of the phrase \"just and practicable\" in denying the motion for fees as untimely suggests that it considered that the amended rule applied because the case had been pending when it became effective.",
"Daka's counsel conceded at oral argument that the reference to \"therein pending\" refers to the case pending in the Superior Court. We agree. As we read the Board of Judges' order, the fourteenday period established by Rule 54(d)(2)(B) begins to run from the date of \"judgment\" in the trial court. Therefore, \"therein pending\" must be understood as referring to a case pending in the trial court; otherwise it would be impossible to apply the rule if it were understood to mean \"pending on appeal.\" Moreover, this reading is consistent with the purpose of the fourteen-day provision to \"give the opposing party notice of the claim before the time for appeal has lapsed, and ... facilitate the [Superior] Court's review of the services performed.\" Proposed Amendments to SCR-CIVIL 54, 123 Wash. Law Rep 52 (Jan. 10, 1995).",
"See Super. Ct. Civ. R. 58. (\"Entry of judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except that, when a timely motion for attorney's fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4(a)(4) of the District of Columbia Court of Appeals as a timely motion under Rule 59.\"). [7] Under D.C.App.",
"R. 4(a)(3), a judgment is \"deemed to be entered\" for the purpose of calculating the time to appeal, \"when it is entered on the civil docket ... by the Clerk of the Superior Court.\" [8] Daka cites several decisions applying the federal equivalent of Rule 54(d)(2)(B)-which is identical to the Superior Court rule-to bar attorneys' fees requested after the fourteenday period has elapsed. These cases are distinguishable, however, in that they involved entry of final judgment in the trial court after the December 1, 1993, date that federal Rule 54(d)(2)(B) became effective.",
"See, e.g., 44 Liquormart, Inc. v. Rhode Island, 940 F. Supp. 437, 441 nn. 3 & 4 (D.R.I.1996) (attorneys' fees denied because no excusable neglect shown where federal circuit court, following reversal by Supreme Court, entered amended mandate after the effective date of amended federal rule, and under local court rules amended mandate \"served as the final judgment for purposes of Rule 54, and started the 14 day time limit\" for filing a motion for fees) (citing Central States, Southeast and Southwest Areas Pension Fund v. Art Pape Transfer, Inc., 1995 WL 653992, 1995 U.S. Dist. LEXIS 16496 (N.D.Ill) (applying Rule 54(d)(2)(B) to deny fees where entry of judgment occurred after plaintiff's filing of motion to alter or amend was denied after effective date of amended rule)). [9] We note that the trial court expressed the view that Breiner had not provided any reason to support a finding of excusable neglect that would permit his delayed filing of the motion for fees. It may well be that, on remand, the trial court will consider the motion to have been filed too late even if the fourteen-day period does not apply.",
"That determination should take into account the reasons for delay, prejudice to the defendant, the sizeable punitive award in this case, and the goal of awarding attorneys' fees to \"promote the public interest by ensuring that private citizens have the means to enforce anti-discrimination statutes.\" Natural Motion, 726 A.2d at 197 n. 6. It is for the trial court to exercise its discretion in the first instance, applying the proper factors. See Johnson v. United States, 398 A.2d 354, 365 (D.C.1979)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2198419/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
678 S.E.2d 842 (2009) 54 Va. App. 357 Charles M. SANFORD v. COMMONWEALTH of Virginia. Record No. 0230-08-4. Court of Appeals of Virginia, Alexandria. July 14, 2009. Paul E. Pepper, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee. Present: HUMPHREYS, HALEY and ALSTON, JJ. *843 HALEY, Judge. Within Article 7 of Title 18.2 of the Code, "Criminal Sexual Assault," Code § 18.2-67.10(3) defines "Mental Incapacity" as "that condition ... existing at the time of an offense ... which prevents the complaining witness from understanding the nature or consequences of the sexual act involved...." Charles M. Sanford was convicted by the trial court of forcible sodomy (cunnilingus), accomplished through the use of the victim's mental incapacity, in violation of Code § 18.2-67.1(A)(2). Sanford does not argue that the evidence is insufficient to establish the act of sodomy. Rather, he maintains the evidence is insufficient to establish that incapacity. We disagree and affirm.[1]
I.
STANDARD OF REVIEW Presented with a challenge that the evidence is insufficient, as here, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). This presumption recognizes that the "trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise." Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004) (citation omitted). Thus, an appellate court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted). Our review does not authorize us to "reweigh the evidence." Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007). Rather, the appropriate appellate inquiry is "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (emphasis in original).
II.
FACTS[2] The female victim is sixteen years old and lived with her mother in Washington, D.C. The mother asked the child's father, Sanford, if the victim could stay with him for two to four days in Alexandria, Virginia. He agreed, and it was during this time period when the act of cunnilingus took place. When the victim returned home, she told her mother what had happened,[3] whereupon the mother called the police and took the victim to the hospital. As noted, there is no challenge to the act of sodomy. Accordingly, we recite only those facts necessary for resolution of the issue raised, that is, the mental capacity of the victim. Neither the victim nor the defendant testified. Dr. Gloria Morote qualified as an expert clinical psychologist. From her examination,[4] she concluded the victim had an IQ of 46, which she described as "very, very low" and "closer to the severe mental retardation range than the mild retardation range." Her other assessments included the following: "[I]n terms of verbal and visual memory functions, they are both in the impaired range, below the first percentile rank"; with respect to decision speed, "[I]t was below three years and four months ... [t]hat was *844 the floor of the test ... [t]hat was the lowest score she could get." The victim's "[s]cores in terms of thinking ability, her thought processes, the visual motor speed ... visual attention were ... [all] ... four years old... [and] ... there was no score lower than that." Finally, with respect to the victim's non-verbal social reasoning, that is, as Dr. Morote described it, her "ability to assess cause-effect relationships in social interaction... her score there was zero ... the lowest." (Emphasis added). Incorporating the above assessments with an interview with the child's mother, Dr. Morote evaluated the victim's adaptive skills. She defined the same as: "[c]ommunication skills, functional academics, health and safety, leisure, self-care, social [and] home living...." The victim's score was 49, "which is consistent with the IQ score...." That score, Dr. Morote opined, demonstrated that the victim "cannot live independently." The victim's mother testified her daughter attends St. Coletta's of Greater Washington, a charter special education school. Regarding her adaptive functioning, she cannot read or write, though she can copy letters and recognize some numerals. She can, with help, dress herself and perform basic hygiene (brushing her teeth, etc.) when reminded to do so, but she is unable to wash or brush her hair. Her mother gives her birth control pills, but describes them to the victim only as vitamins. The victim cannot be left alone, either within or without the house, and requires constant adult supervision. The mother testified she has told the victim about sex, in a general sense, advising her to wait "until she gets older ... [to be]... thinking about having babies...." However, the mother specifically stated she had never explained the physical act of sexual intercourse, the use of prophylactics or other methods of birth control, or the existence of sexually transmitted diseases. Further, the transcript includes the following: Q. Have you ever educated her on oral sex? A. No. Katrice Ashton, a social worker at St. Coletta's, described the goal of the school to teach functional academics and "life skills." She testified that the victim could count from 1 to 25. She cannot read or write, but can copy a letter of the alphabet. She recognizes units of currency but cannot quantify them. She is "sometimes" able to tell time. They are attempting to teach her the meaning of symbols on signs, to enable her to cross a street safely. She needs prompting to wash her hands or brush her teeth. The victim "would love to play with stuffed animals all day if she could." She likes to pretend that she is Ms. Ashton's mother, and calls that teacher her "daughter." The victim has never had any sex education classes. For a period following the incident, the victim remained mute at school, refused to walk on her own, and pretended she was an animal, making various "animal noises." Summarizing the victim's adaptive skills, Ms. Ashton testified as follows: Q. What level of supervision does [the victim] require? A. She requires constant supervision. Detective Desiree Maxwell of the Alexandria Police Department interviewed the defendant. Detective Maxwell testified that the defendant told her he had only known the victim since she was a pre-teenager. He acknowledged, nonetheless, he knew the victim could not read or write, barely knew her numbers, had been told by her mother she was mentally retarded, agreed with the characterization that she acted "as about a five-year old," and put her clothes on backwards. Though denying other sexual acts, he admitted he had performed cunnilingus on the victim. He claimed the victim was "talking about having babies in her tummy and boyfriend and girlfriend and being married." He maintained "[s]he would come on to [me]... asked [me] if [I] wanted to be her baby's daddy...." Finally, he told the detective that the victim entered his bedroom wearing only a T-shirt just prior to the time the act of sodomy was performed. It is his statements to Detective Maxwell, coupled with the testimony of the mother, summarized above, that the defendant maintains negate the substantiality of the Commonwealth's evidence to prove the mental *845 incapacity of the victim to understand the nature or consequences of sodomy.
III.
ANALYSIS In Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995), we reversed a rape conviction based upon mental incapacity. The victim was sixteen, mentally aged 10.4 years, with an IQ between 58 and 70. She was in the eighth grade at a public school. She could read and write, recording the defendant's telephone number in her address book. On the day of the offense, she left her mother a note advising she was going to a mini-mart (where by agreement she purposely and surreptitiously met defendant). She could be left home alone, could travel and go shopping alone at a local mall, and, according to her mother, could take care of herself. She had had sex education classes at public school, and she understood that one could become pregnant or get AIDS as a consequence of sexual intercourse. In reversing, we noted that a fact finder may not "infer from proof of general mental incapacity or mental retardation or an IQ range or mental age" alone that a victim lacks mental capacity.[5]Id. at 346, 457 S.E.2d at 389. Rather, "A person suffers from a `mental incapacity' within the meaning of the statute, if he or she has a mental `condition' that `prevents' the person from being able to `understand' either the `nature' or `consequences' of engaging in sexual intercourse." Id. at 344, 457 S.E.2d at 388 (second emphasis added).[6] We adopted the definition of "consequence" from Webster's Third New International Dictionary, at page 482: "`something that is produced by a cause or follows from a form of necessary connection or from a set of conditions: a natural or necessary result.'" Id. In short, IQ or mental age alone, while evidence of mental incapacity, does not necessarily establish that incapacity, within the meaning of the statute. Thus, the Commonwealth did not establish beyond a reasonable doubt that the victim in Adkins, though possessing limited IQ and a mental age less than her physical age, further did not understand either the nature or consequences of the sexual act. Indeed, the evidence demonstrated that she, in fact, had that understanding. In White v. Commonwealth, 23 Va.App. 593, 478 S.E.2d 713 (1996), we again reversed a rape conviction based upon mental incapacity. The victim was educable mentally retarded. We noted, however, that the record showed that her achievement "[s]cores in communication, daily living skills and socialization domains were all above the mentally retarded range, with a strength in socialization skills, achievement, overall adaptive behavior falling well within the low average range." Id. at 597, 478 S.E.2d at 714. These are generally described as "adaptive skills." It is the confluence of IQ (or mental age) and adaptive skills that are relevant to the establishment of mental incapacity. As one commentator has noted: "Intellectual functioning is measured by the intelligence quotient (`IQ'), which is obtained using standard intelligence tests.... Adaptive functioning includes an individual's social skills, communication skills, daily living skills, personal independence, and self sufficiency." Elizabeth J. Reed, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity, 83 Va. L.Rev. 799 (1997). Initially, we note that a "fact finder is not required to believe all aspects of a defendant's statement or testimony; the judge or jury may reject that which it finds implausible, but accept other parts which it finds believable." Pugliese v. Commonwealth, 16 Va.App. 82, 92, 428 S.E.2d 16, 24 (1993) (citation omitted). As we held in Marable v. Commonwealth, 27 Va.App. 505, 509-10, *846 500 S.E.2d 233, 235 (1998): "[T]he fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." In accord with these principles, then, the trial court was at liberty to reject the defendant's statements to Detective Maxwell as to the circumstances preceding the act of sodomy. Here, there is no question but that the victim is mentally retarded; her IQ is 46, her verbal, memory, and decisional functions are those of a four year old. That being said, we address the victim's adaptive functionswhat Dr. Morote described as "[c]ommunication skills ... health and safety, leisure, self-care, social [and] home living" and what we characterized in White as "communication, daily living habits and socialization domains." Dr. Morote testified the adaptive skills score was 49, "consistent with the IQ score...." The victim, Dr. Morote stated, "cannot live independently." The victim, according to Ms. Ashton, "requires constant supervision." The victim, consistent with her mother's testimony, cannot be left alone, within or without her home. This contrast between the victim's adaptive functioning, and those set forth in Adkins and White above, is striking, and telling. As quoted above, Code § 18.2-67.10(3) defines mental incapacity as the inability to understand "the nature or consequences of the sexual act involved." (Emphasis added). Here, unlike Adkins or White, the sexual act is cunnilingus, not intercourse. While it is conceivable the victim could understand that sexual intercourseeven without understanding the mechanics of that actcould produce a baby, her mother specifically denied that she had ever discussed oral sex with her child, that is, the nature of that act. Furthermore, Dr. Morote testified that with respect to the victim's "ability to assess cause-effect relationships in social interaction" that is, the consequences of such interaction, "her score was zero ... the lowest." We conclude that the evidence was sufficient to establish that the victim lacked the mental capacity to understand the nature or consequences of the unchallenged act of sodomy. Affirmed. NOTES [1] The trial court found Sanford not guilty of three indictments charging forcible sodomy (§ 18.2-67.1(A)(2)) (fellatio), carnal knowledge (§ 18.2-361), and indecent liberties (§ 18.2-370.1). Sanford was also convicted of aggravated sexual battery (§ 18.2-7.3(A)(3)) but Sanford's petition for appeal was denied with respect to that conviction. [2] We see no need to identify the mother or the victim by name. We do note, however, that their surname is not the same as the defendant's. [3] The defendant's hearsay objection to the contents of this conversation was sustained. [4] In her written evaluation, introduced as Commonwealth's Exhibit 2, Dr. Morote noted that the victim during her interview did not know her last name, her full address, the name of her school, or the current day, month or year. [5] Mental retardation (or subaverage intellectual functioning) is characterized by an IQ of seventy or below. See American Psychiatric Association, Diagnosis and Statistical Manual of Mental Disorders 39 (4th ed.1994). [6] "-`[M]ental incapacity' may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of reduced inhibition and has reached a point where the victim does not understand `the nature or consequences of the sexual act.' Code § 18.2-67.10(3)." Molina v. Commonwealth, 272 Va. 666, 673, 636 S.E.2d 470, 474 (2006). | 10-09-2013 | [
"678 S.E.2d 842 (2009) 54 Va. App. 357 Charles M. SANFORD v. COMMONWEALTH of Virginia. Record No. 0230-08-4. Court of Appeals of Virginia, Alexandria. July 14, 2009. Paul E. Pepper, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee. Present: HUMPHREYS, HALEY and ALSTON, JJ. *843 HALEY, Judge. Within Article 7 of Title 18.2 of the Code, \"Criminal Sexual Assault,\" Code § 18.2-67.10(3) defines \"Mental Incapacity\" as \"that condition ... existing at the time of an offense ... which prevents the complaining witness from understanding the nature or consequences of the sexual act involved....\" Charles M. Sanford was convicted by the trial court of forcible sodomy (cunnilingus), accomplished through the use of the victim's mental incapacity, in violation of Code § 18.2-67.1(A)(2). Sanford does not argue that the evidence is insufficient to establish the act of sodomy. Rather, he maintains the evidence is insufficient to establish that incapacity. We disagree and affirm. [1] I.",
"STANDARD OF REVIEW Presented with a challenge that the evidence is insufficient, as here, we \"presume the judgment of the trial court to be correct\" and reverse only if the trial court's decision is \"plainly wrong or without evidence to support it.\" Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). This presumption recognizes that the \"trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise.\" Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004) (citation omitted). Thus, an appellate court does not \"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.\"",
"Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted). Our review does not authorize us to \"reweigh the evidence.\" Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007). Rather, the appropriate appellate inquiry is \"`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'\"",
"Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (emphasis in original). II. FACTS[2] The female victim is sixteen years old and lived with her mother in Washington, D.C. The mother asked the child's father, Sanford, if the victim could stay with him for two to four days in Alexandria, Virginia. He agreed, and it was during this time period when the act of cunnilingus took place. When the victim returned home, she told her mother what had happened,[3] whereupon the mother called the police and took the victim to the hospital. As noted, there is no challenge to the act of sodomy. Accordingly, we recite only those facts necessary for resolution of the issue raised, that is, the mental capacity of the victim. Neither the victim nor the defendant testified.",
"Dr. Gloria Morote qualified as an expert clinical psychologist. From her examination,[4] she concluded the victim had an IQ of 46, which she described as \"very, very low\" and \"closer to the severe mental retardation range than the mild retardation range.\" Her other assessments included the following: \"[I]n terms of verbal and visual memory functions, they are both in the impaired range, below the first percentile rank\"; with respect to decision speed, \"[I]t was below three years and four months ... [t]hat was *844 the floor of the test ... [t]hat was the lowest score she could get.\" The victim's \"[s]cores in terms of thinking ability, her thought processes, the visual motor speed ... visual attention were ... [all] ... four years old... [and] ... there was no score lower than that.\" Finally, with respect to the victim's non-verbal social reasoning, that is, as Dr. Morote described it, her \"ability to assess cause-effect relationships in social interaction... her score there was zero ... the lowest.\"",
"(Emphasis added). Incorporating the above assessments with an interview with the child's mother, Dr. Morote evaluated the victim's adaptive skills. She defined the same as: \"[c]ommunication skills, functional academics, health and safety, leisure, self-care, social [and] home living....\" The victim's score was 49, \"which is consistent with the IQ score....\" That score, Dr. Morote opined, demonstrated that the victim \"cannot live independently.\" The victim's mother testified her daughter attends St. Coletta's of Greater Washington, a charter special education school. Regarding her adaptive functioning, she cannot read or write, though she can copy letters and recognize some numerals. She can, with help, dress herself and perform basic hygiene (brushing her teeth, etc.) when reminded to do so, but she is unable to wash or brush her hair.",
"Her mother gives her birth control pills, but describes them to the victim only as vitamins. The victim cannot be left alone, either within or without the house, and requires constant adult supervision. The mother testified she has told the victim about sex, in a general sense, advising her to wait \"until she gets older ... [to be]... thinking about having babies....\" However, the mother specifically stated she had never explained the physical act of sexual intercourse, the use of prophylactics or other methods of birth control, or the existence of sexually transmitted diseases.",
"Further, the transcript includes the following: Q. Have you ever educated her on oral sex? A. No. Katrice Ashton, a social worker at St. Coletta's, described the goal of the school to teach functional academics and \"life skills.\" She testified that the victim could count from 1 to 25. She cannot read or write, but can copy a letter of the alphabet. She recognizes units of currency but cannot quantify them. She is \"sometimes\" able to tell time. They are attempting to teach her the meaning of symbols on signs, to enable her to cross a street safely. She needs prompting to wash her hands or brush her teeth. The victim \"would love to play with stuffed animals all day if she could.\" She likes to pretend that she is Ms. Ashton's mother, and calls that teacher her \"daughter.\"",
"The victim has never had any sex education classes. For a period following the incident, the victim remained mute at school, refused to walk on her own, and pretended she was an animal, making various \"animal noises.\" Summarizing the victim's adaptive skills, Ms. Ashton testified as follows: Q. What level of supervision does [the victim] require? A. She requires constant supervision. Detective Desiree Maxwell of the Alexandria Police Department interviewed the defendant. Detective Maxwell testified that the defendant told her he had only known the victim since she was a pre-teenager. He acknowledged, nonetheless, he knew the victim could not read or write, barely knew her numbers, had been told by her mother she was mentally retarded, agreed with the characterization that she acted \"as about a five-year old,\" and put her clothes on backwards.",
"Though denying other sexual acts, he admitted he had performed cunnilingus on the victim. He claimed the victim was \"talking about having babies in her tummy and boyfriend and girlfriend and being married.\" He maintained \"[s]he would come on to [me]... asked [me] if [I] wanted to be her baby's daddy....\" Finally, he told the detective that the victim entered his bedroom wearing only a T-shirt just prior to the time the act of sodomy was performed. It is his statements to Detective Maxwell, coupled with the testimony of the mother, summarized above, that the defendant maintains negate the substantiality of the Commonwealth's evidence to prove the mental *845 incapacity of the victim to understand the nature or consequences of sodomy. III.",
"ANALYSIS In Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995), we reversed a rape conviction based upon mental incapacity. The victim was sixteen, mentally aged 10.4 years, with an IQ between 58 and 70. She was in the eighth grade at a public school. She could read and write, recording the defendant's telephone number in her address book. On the day of the offense, she left her mother a note advising she was going to a mini-mart (where by agreement she purposely and surreptitiously met defendant). She could be left home alone, could travel and go shopping alone at a local mall, and, according to her mother, could take care of herself. She had had sex education classes at public school, and she understood that one could become pregnant or get AIDS as a consequence of sexual intercourse. In reversing, we noted that a fact finder may not \"infer from proof of general mental incapacity or mental retardation or an IQ range or mental age\" alone that a victim lacks mental capacity.[5]Id.",
"at 346, 457 S.E.2d at 389. Rather, \"A person suffers from a `mental incapacity' within the meaning of the statute, if he or she has a mental `condition' that `prevents' the person from being able to `understand' either the `nature' or `consequences' of engaging in sexual intercourse.\" Id. at 344, 457 S.E.2d at 388 (second emphasis added). [6] We adopted the definition of \"consequence\" from Webster's Third New International Dictionary, at page 482: \"`something that is produced by a cause or follows from a form of necessary connection or from a set of conditions: a natural or necessary result.'\" Id. In short, IQ or mental age alone, while evidence of mental incapacity, does not necessarily establish that incapacity, within the meaning of the statute. Thus, the Commonwealth did not establish beyond a reasonable doubt that the victim in Adkins, though possessing limited IQ and a mental age less than her physical age, further did not understand either the nature or consequences of the sexual act. Indeed, the evidence demonstrated that she, in fact, had that understanding. In White v. Commonwealth, 23 Va.App.",
"593, 478 S.E.2d 713 (1996), we again reversed a rape conviction based upon mental incapacity. The victim was educable mentally retarded. We noted, however, that the record showed that her achievement \"[s]cores in communication, daily living skills and socialization domains were all above the mentally retarded range, with a strength in socialization skills, achievement, overall adaptive behavior falling well within the low average range.\" Id. at 597, 478 S.E.2d at 714. These are generally described as \"adaptive skills.\" It is the confluence of IQ (or mental age) and adaptive skills that are relevant to the establishment of mental incapacity. As one commentator has noted: \"Intellectual functioning is measured by the intelligence quotient (`IQ'), which is obtained using standard intelligence tests.... Adaptive functioning includes an individual's social skills, communication skills, daily living skills, personal independence, and self sufficiency.\" Elizabeth J. Reed, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity, 83 Va. L.Rev. 799 (1997). Initially, we note that a \"fact finder is not required to believe all aspects of a defendant's statement or testimony; the judge or jury may reject that which it finds implausible, but accept other parts which it finds believable.\" Pugliese v. Commonwealth, 16 Va.App. 82, 92, 428 S.E.2d 16, 24 (1993) (citation omitted).",
"As we held in Marable v. Commonwealth, 27 Va.App. 505, 509-10, *846 500 S.E.2d 233, 235 (1998): \"[T]he fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.\" In accord with these principles, then, the trial court was at liberty to reject the defendant's statements to Detective Maxwell as to the circumstances preceding the act of sodomy. Here, there is no question but that the victim is mentally retarded; her IQ is 46, her verbal, memory, and decisional functions are those of a four year old. That being said, we address the victim's adaptive functionswhat Dr. Morote described as \"[c]ommunication skills ... health and safety, leisure, self-care, social [and] home living\" and what we characterized in White as \"communication, daily living habits and socialization domains.\" Dr. Morote testified the adaptive skills score was 49, \"consistent with the IQ score....\" The victim, Dr. Morote stated, \"cannot live independently.\"",
"The victim, according to Ms. Ashton, \"requires constant supervision.\" The victim, consistent with her mother's testimony, cannot be left alone, within or without her home. This contrast between the victim's adaptive functioning, and those set forth in Adkins and White above, is striking, and telling. As quoted above, Code § 18.2-67.10(3) defines mental incapacity as the inability to understand \"the nature or consequences of the sexual act involved.\" (Emphasis added). Here, unlike Adkins or White, the sexual act is cunnilingus, not intercourse.",
"While it is conceivable the victim could understand that sexual intercourseeven without understanding the mechanics of that actcould produce a baby, her mother specifically denied that she had ever discussed oral sex with her child, that is, the nature of that act. Furthermore, Dr. Morote testified that with respect to the victim's \"ability to assess cause-effect relationships in social interaction\" that is, the consequences of such interaction, \"her score was zero ... the lowest.\" We conclude that the evidence was sufficient to establish that the victim lacked the mental capacity to understand the nature or consequences of the unchallenged act of sodomy. Affirmed. NOTES [1] The trial court found Sanford not guilty of three indictments charging forcible sodomy (§ 18.2-67.1(A)(2)) (fellatio), carnal knowledge (§ 18.2-361), and indecent liberties (§ 18.2-370.1).",
"Sanford was also convicted of aggravated sexual battery (§ 18.2-7.3(A)(3)) but Sanford's petition for appeal was denied with respect to that conviction. [2] We see no need to identify the mother or the victim by name. We do note, however, that their surname is not the same as the defendant's. [3] The defendant's hearsay objection to the contents of this conversation was sustained. [4] In her written evaluation, introduced as Commonwealth's Exhibit 2, Dr. Morote noted that the victim during her interview did not know her last name, her full address, the name of her school, or the current day, month or year.",
"[5] Mental retardation (or subaverage intellectual functioning) is characterized by an IQ of seventy or below. See American Psychiatric Association, Diagnosis and Statistical Manual of Mental Disorders 39 (4th ed.1994). [6] \"-`[M]ental incapacity' may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of reduced inhibition and has reached a point where the victim does not understand `the nature or consequences of the sexual act.' Code § 18.2-67.10(3).\" Molina v. Commonwealth, 272 Va. 666, 673, 636 S.E.2d 470, 474 (2006)."
]
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Tukley, J. delivered the opinion of the court. In this case, the cause assigned for a reversal, is, also, that dying declarations were received illegally against the prisoner. Having entered so fully into the doctrine upon this subject, in the case of Smith vs. The State, we have deemed it unnecessary ágain to do it here. In that case we held, that the declarations received were not dying declarations, and ought not, therefore, to have been received. In the present case we have arrived at a different conclusion, for reasons which we will assign. The wounds, of which the deceased died, are proven by the attending physician to have been mortal, and of a very painful character: he died within forty-eight hours after their reception. It appears that he was a Catholic, and that a priest had been with him before he made the declarations complained of, no doubt for the purpose of administering extreme unction: it cannot be supposed that the deceased was not informed and fully aware of the nature of his wounds, and of the opinion of the doctor that they were mortal;-he told the witness that he must die and that he forgave his murderer. We are well satisfied, not only that the deceased was in articulo mortis, but that he was fully *26conscious that be was so, and tbat he had no hopes of life, but was certain of his almost immediate death. We therefore think, that the judge of the criminal court committed no error in receiving the declarations of the deceased. Some other points have been mooted, but not seriously-pressed in the case: we think there is nothing in them and .that they need no discussion by the court. Let the judgment be affirmed. | 07-30-2022 | [
"Tukley, J. delivered the opinion of the court. In this case, the cause assigned for a reversal, is, also, that dying declarations were received illegally against the prisoner. Having entered so fully into the doctrine upon this subject, in the case of Smith vs. The State, we have deemed it unnecessary ágain to do it here. In that case we held, that the declarations received were not dying declarations, and ought not, therefore, to have been received. In the present case we have arrived at a different conclusion, for reasons which we will assign. The wounds, of which the deceased died, are proven by the attending physician to have been mortal, and of a very painful character: he died within forty-eight hours after their reception. It appears that he was a Catholic, and that a priest had been with him before he made the declarations complained of, no doubt for the purpose of administering extreme unction: it cannot be supposed that the deceased was not informed and fully aware of the nature of his wounds, and of the opinion of the doctor that they were mortal;-he told the witness that he must die and that he forgave his murderer.",
"We are well satisfied, not only that the deceased was in articulo mortis, but that he was fully *26conscious that be was so, and tbat he had no hopes of life, but was certain of his almost immediate death. We therefore think, that the judge of the criminal court committed no error in receiving the declarations of the deceased. Some other points have been mooted, but not seriously-pressed in the case: we think there is nothing in them and .that they need no discussion by the court. Let the judgment be affirmed."
]
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Exhibit 10.1 STEEL EXCEL, INC. FIRST AMENDMENT TO 2006 DIRECTOR PLAN
First Amendment, dated as of November 17, 2011, to that certain 2006 Director Plan of Steel Excel Inc., formerly known as Adaptec, Inc. WHEREAS, Steel Excel Inc. (the “Corporation”) maintains the 2006 Director Plan, as adopted July 6, 2006 (the “2006 Plan”), for grants of equity awards to the Corporation’s outside directors; WHEREAS, the Plan provides that the exercise price for options and stock appreciation rights may be no less than the “Fair Market Value” on the date of determination; and WHEREAS, the Compensation Committee and the Board of Directors of the Corporation have determined that it is appropriate to amend the definition of “Fair Market Value.” NOW THEREFORE, the 2006 Plan is hereby amended as follows: The definition of “Fair Market Value” in Section 22 of the 2006 Plan is hereby deleted in its entirety and the following is substituted in its place: “Fair Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows: If the Company’s Shares are traded on an established securities market (within the meaning of Treasury Regulations Section 1.897-1(m)), then the Fair Market Value of a Share shall be the per Share closing price of a Share as reported on such established securities market (or if there was no reported closing price on such date, on the last preceding date on which the closing price was reported). If the Company’s Shares are not listed on an established securities market (within the meaning of Treasury Regulations Section 1.897-1(m)), then the Fair Market Value of a Share shall be determined by the Committee in its sole discretion using a reasonable application of a reasonable valuation method, consistently applied. Notwithstanding the foregoing, the Fair Market Value of a Share shall, in all events, be determined in accordance with Section 409A of the Code. | [
"Exhibit 10.1 STEEL EXCEL, INC. FIRST AMENDMENT TO 2006 DIRECTOR PLAN First Amendment, dated as of November 17, 2011, to that certain 2006 Director Plan of Steel Excel Inc., formerly known as Adaptec, Inc. WHEREAS, Steel Excel Inc. (the “Corporation”) maintains the 2006 Director Plan, as adopted July 6, 2006 (the “2006 Plan”), for grants of equity awards to the Corporation’s outside directors; WHEREAS, the Plan provides that the exercise price for options and stock appreciation rights may be no less than the “Fair Market Value” on the date of determination; and WHEREAS, the Compensation Committee and the Board of Directors of the Corporation have determined that it is appropriate to amend the definition of “Fair Market Value.” NOW THEREFORE, the 2006 Plan is hereby amended as follows: The definition of “Fair Market Value” in Section 22 of the 2006 Plan is hereby deleted in its entirety and the following is substituted in its place: “Fair Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows: If the Company’s Shares are traded on an established securities market (within the meaning of Treasury Regulations Section 1.897-1(m)), then the Fair Market Value of a Share shall be the per Share closing price of a Share as reported on such established securities market (or if there was no reported closing price on such date, on the last preceding date on which the closing price was reported).",
"If the Company’s Shares are not listed on an established securities market (within the meaning of Treasury Regulations Section 1.897-1(m)), then the Fair Market Value of a Share shall be determined by the Committee in its sole discretion using a reasonable application of a reasonable valuation method, consistently applied. Notwithstanding the foregoing, the Fair Market Value of a Share shall, in all events, be determined in accordance with Section 409A of the Code."
]
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DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. Response to Amendment The amendments filed 04/12/2022 have been entered. The amendments canceled claims 7, 11, 13-15 and 20. Therefore, claims 1-4, 6, 9, 12, 19 and 22-30 remain pending in the application, and claims 22-28 remain withdrawn from consideration. Response to Arguments Applicant’s remarks filed 04/12/2022 have been fully considered. Applicant asserts that “The rejections of the claims under 35 U.S.C. §112(b) have been addressed by various amendments to the claims”. However, some of said rejections were not addressed, and in addressing some of said rejections new issues under 35 U.S.C. § 112(b) were introduced. See the current rejections below. Further, applicant asserts that “the claims as now amended define the invention over the prior art.” However, examiner stated in the Non-Final Office Action filed 01/14/2022 that “For at least the reasons set forth in the Remarks (see pg. 16, par. 2-3, of the response filed 11/23/2021), claims 1 and 29-30, and the dependents thereof, would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112 and the claim objections set forth in this Office Action.” The obvious inference from said statement is that the claims would be allowable if the issues under 35 U.S.C. § 112 are overcome without deleting the allowable subject matter from said claims. However, applicant has deleted the allowable subject matter; therefore, the claims are again rejected in view of the prior art of record. See the current rejections below. Claim Objections Claims 1, 4, 12 and 29 are objected to because of the following informalities: Regarding claim 1: the limitation “the said at least one pressing roller” should read, for example, ‘the at least one first pressing roller’. Regarding claim 4: the limitation “the axial direction” should read, for example, ‘an axial direction of the first rotatable pressing roller and the second rotatable pressing roller’ to eliminate any potential confusion as to what structure the axial direction is referring to. Regarding claim 12: the recitation “teeth (4.3) of the at least one crushing roller (3a) and the opposite crushing element (3b) include a curvature or a bevel (4c) viewed in the circumferential direction at a transition from outer edges (4b) to side flanks” should read, for example, ‘the teeth of the at least one first crushing roller (3a) and teeth of the opposite crushing element (3b) include a curvature or a bevel (4c) viewed in the circumferential direction at a transition from outer edges (4b) to side flanks of the teeth on each of the at least one crushing roller and the opposite crushing element’. Further, “the at least one crushing roller” should read ‘the at least a first crushing roller’ to be consistent with claims 9 and 29 from which claim 12 depends. Regarding claim 29: the phrase “an an” in line 23 should read ‘and an’. Also, the recitation “rotation axes” in line 34 should read, for example ‘rotation axes of the first and the second pressing rollers and of the first and the second crushing rollers’ to eliminate any potential confusion as to what structure the axial direction is referring to. Further, the recitation “element (3b)” in line 28 should read ‘element’, since it could be either a fixed crush support surface or a second rotatable crushing roller (see lines 29, 30). Appropriate correction for the above list of issues is required. Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f): (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office Action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office Action. This application includes one or more claim limitations that do not use the word “means,” but nonetheless invokes 35 U.S.C. 112(f) because the claim limitation(s) uses a generic placeholder (first prong of the three-prong test) that is coupled with functional language (second prong) without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier (third prong). Such claim limitations are: “an opposite crushing element” (clms. 1, 29, 30) “drive device for driving” (clms. 2, 6) Because these limitations are being interpreted under 35 U.S.C. 112(f), they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitations to avoid it being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid it being interpreted under 35 U.S.C. 112(f). Claim Rejections - 35 USC § 112(a) The following is a quotation of the first paragraph of 35 U.S.C. § 112(a): (a) IN GENERAL — The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim 30 is rejected under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor had possession of the claimed invention. Regarding claim 30: the claim recites “wherein a blade shaft (17) that is drivable to rotate has a rotation axis (17') at an angle between 0 and 45 degrees to the pressing slot (2)”. However, no support for an angle between 0 and 45 degrees could be located in the specification and the drawings alone are insufficient to provide support for the claimed range. The specification at ¶ 4 on pg. 18 states that the rotation axis is parallel to the rotation axes of the pressing device. Therefore, the limitation enters new matter into the disclosure. Correction is required. Claim Rejections - 35 USC § 112(b) The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-4, 6, 9, 12, 19 and 29-30 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. Any claims not directly addressed are only rejected under 35 U.S.C. 112(b) for being dependent on a rejected base claim. Regarding claim 1: the claim recites “pressing counter element has a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation (see lns. 6-8). Therefore, it is unclear if the pressing counter element, pressing support surface, and second rotatable pressing roller, are intended to be required in the claim. They are being interpreted as being required in the claim. In order to resolve the issue, examiner suggests replacing “rotate for” in line 6 with ‘rotate and configured for’. Regarding claim 3: there is no antecedent basis in the claim for “the pressing support surface”. Regarding claim 12: it is unclear if the “teeth” (ln. 3) are the same as or additional to the “teeth” of clm. 29, ln. 13. They are being interpreted as being the same. Regarding claim 29: the claim recites the “pressing counter element has either a pressing support surface, or a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation beginning with “for capturing and pulling...” (see lns. 6-8). Therefore, it is unclear if the pressing counter element, pressing support surface, and second rotatable pressing roller, are intended to be required in the claim. They are being interpreted as being required in the claims. Examiner suggests positively reciting the pressing counter element, the pressing support surface, and the second rotatable pressing roller. There is no antecedent basis in the claim for “the crushing element roller” (ln. 33). Further, the claim recites “the opposite crushing element (3b), comprises either a fixed crush support surface (5’), or a second rotatable crushing roller (3b)” in lines 28-30; but recites “the crushing element roller” in line 33, which it appears is intended to correspond to the second rotatable crushing roller and, thus, eliminates the option of the opposite crushing element being a fixed crush support surface. Therefore, the claim is indefinite due to the contradicting limitations. The claim is being interpreted such that the fixed crush support surface is not an option. Additionally, the limitation “second rotatable crushing roller” renders the claim indefinite because it implies that there is a first rotatable crushing roller, but a first has not been recited. And, it is unclear if “the crushing element roller” in line 33 is additional to the first crushing roller and the second rotatable crushing roller. The crushing element roller is being interpreted as the second rotatable crushing roller. Regarding claim 30: the claim recites the “pressing counter element has a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation beginning with “for capturing and pulling...” (see lns. 6-8). And it is improper to further define/limit structure relative to features that are not positively recited. Therefore, it is unclear if the pressing counter element and second rotatable pressing roller, are intended to be required in the claim. They are being interpreted as being required in the claims. Examiner suggests positively reciting the pressing counter element and the second rotatable pressing roller. Further, the claims recite “a crushing slot (5) that is formed between the crushing roller (3a) and an opposite crushing element” (lns. 24-25). However, the opposite crushing element has not been positively recited since it is introduced in the intended use limitation beginning with “for capturing and pulling...”, and it is improper to define features (i.e., the crushing slot) relative to elements that are not positively recited. Therefore, it is unclear if applicant intends for the opposite crushing element to be required in the claims. It is currently being interpreted as being required in the claim. In order to resolve the issue, examiner suggests amending said claims in accordance with the current amendments to lines 23-24 of claim 1. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office Action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-4, 9, 19 and 29-30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Davis (US 6,131,509 A). Regarding claim 1: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig. 7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the pressing device comprises at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and the pressing counter element (114a, fig. 7) has a second rotatable pressing roller (see fig. 7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and the second rotatable pressing roller (114a) includes teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), characterized in that a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) and an opposite crushing element (118) wherein the first crushing roller is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight). Regarding claim 2, which depends on claim 1: Davis discloses the device includes at least one drive device (122, fig. 8) for driving the pressing device (116a) or the crushing device (120) (col. 6, lns. 12-17). Regarding claim 3, which depends on claim 1: Davis discloses the second rotatable pressing roller(114a) is a drivable pressing roller that rotates counter acting to the first pressing roller (col. 2, lns. 17-22). Regarding claim 4, which depends on claim 3: Davis discloses the pressing slot between the pressing rollers (114a, 116a) has a constant width in the axial direction of said rollers (see figs. 6-8). Regarding claim 29: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig. 7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight) comprising at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and a pressing counter element (114a, fig. 7) has a second rotatable pressing roller (see fig. 7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and a second rotatable pressing roller (114a) include teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), characterized in that a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) and an opposite crushing element (118) wherein the first crushing roller is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the opposite crushing element comprises a rotatable crushing roller (118, fig. 7) that is drivable counter rotating to the first crushing roller (col. 2, lns. 17-22); and the first pressing roller, the second pressing roller, the first crushing roller, and the second crushing roller have an operating portion (the portion within the housing 112, fig. 6) in a direction of a rotation axis of each of said rollers in a center portion (the portion within the housing 112) of each of said rollers and bearing journals (the structures on which the sprockets 162 are attached, fig. 8) of each of said rollers protrude axially on a face side of each of said rollers beyond the operating portion. Regarding claim 9, which depends on claim 29: Davis discloses the first crushing roller (120) includes teeth (119) that are arranged in an operating portion distributed over the circumference in a radial direction beyond a base diameter of the at least a first crushing roller in the operating portion (see fig. 7, the teeth 119 protrude in the radial direction from the diameter of the roller 120). Regarding claim 30: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig. 7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the pressing device comprises at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and a pressing counter element (114a, fig. 7) has a second rotatable pressing roller (see fig. 7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and the second rotatable pressing roller (114a) includes teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), and a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight); wherein a blade shaft that is drivable to rotate has a rotation axis at an angle between 0 and 45 degrees to the pressing slot, is arranged upstream of the pressing device and opposite to a blade counter-element (see annotated fig. 6 of Davis below, the angle of the rotation axis relative to the pressing slot is 0 degrees, i.e., the rotation axis and pressing slot are parallel).
PNG media_image1.png 354 812 media_image1.png Greyscale
Annotated Figure 6 of Davis
Regarding claim 19, which depends on claim 30: Davis discloses blades on the blade shaft extend in an axial direction of the blade shaft over at least 60% of a length of an operating portion of the at least one pressing roller (see fig. 6 above). Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office Action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Davis, in view of Linnekogel et al. (EP 3,243,646 A1). Regarding claim 6, which depends on claim 29: Davis discloses the crushing slot (slot between crushing rollers 118 and 120, fig. 7) is arranged in the pass-through direction or positioned so that a flattened plate shaped hollow element that is moved through between the first and second rotatable pressing rollers (116a, 114a, respectively) in the pass-through direction reaches into the crushing slot crushing roller (see fig. 7), at least one drive device (122, fig. 8) is provided that is configured to drive said first crushing roller (col. 6, lns. 17-20). Davis is silent regarding the drive device driving said first crushing roller with a lower circumferential velocity than a circumferential velocity of the pressing rollers. However, Linnekogel teaches a device for compacting hollow elements (see fig. 1) comprising a pressing roller (3) that cooperates with a pressing counter element (4), and a crushing roller. Linnekogel further teaches that the crushing roller (11) is driven at a rotational speed that is less than the rotational speed of the pressing roller (3) (¶ [0042], lns. 319-321), and that by doing so the flattened container (8) is further compacted as it is folded up like an accordion (¶ [0045], lns. 349-350). Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Davis such that the crushing rollers are driven to rotate at a lower circumferential speed than the pressing rollers, thereby further compacting the flattened hollow element and folding it up like an accordion, as taught by Linnekogel. Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Davis, in view of Schwelling (US 2014/0196616 A1). Regarding claim 12, which depends on claim 9: Davis is silent regarding the teeth of the at least one first crushing roller and teeth of the opposite crushing element include a curvature or a bevel viewed in a circumferential direction of the first and the second crushing rollers at a transition from their outer edges to their side flanks. However, Schwelling teaches a device (see fig. 1a) for crushing beverage containers (15, 16) comprising a crushing roller (5) and an opposite crushing element (6); and teeth (511, 611, fig. 3a) of the crushing roller and crushing element (5, 6) include a curvature or a bevel (516, 616; also see [0099], [0132]) viewed in a circumferential direction (as shown in fig. 3a) at a transition from their outer edges (513, 613) to their side flanks (515, 615). Schwelling further teaches in ¶ [0053] that the particular configuration of the teeth of the crushing roller and crushing element provides the advantage that “tensions in the material of the related wall region of the body 15 or 16 being passed through, which could bring about re-expansion, are eliminated by means of only reduced forming.” Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to replace the tooth configuration (fig. 6 of Davis) of the crushing roller and crushing element with the tooth configuration (see fig. 3a) of Schwelling, thereby providing Davis with a tooth configuration that eliminates tensions in the material, as taught by Schwelling. Allowable Subject Matter Examiner stated in the Non-Final Office Action filed 01/14/2022 that “For at least the reasons set forth in the Remarks (see pg. 16, par. 2-3, of the response filed 11/23/2021), claims 1 and 29-30, and the dependents thereof, would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112 and the claim objections set forth in this Office Action.” The obvious inference from said statement is that the claims would be allowable if the issues under 35 U.S.C. 112 are overcome without deleting the allowable subject matter of the independent claims. However, applicant has deleted the allowable subject matter; therefore, even if the current issues under 35 U.S.C. 112 are overcome, the claims would still not be in condition for allowance. Conclusion Applicant's amendment necessitated any new grounds of rejection presented in this Office Action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JARED O BROWN whose telephone number is (303)297-4445. The examiner can normally be reached Monday - Friday: 8:00 - 5:00 (Mountain Time). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelley M Self can be reached on 571-272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JARED O BROWN/Examiner, Art Unit 3725 /JESSICA CAHILL/Primary Examiner, Art Unit 3753 | 2022-08-11T22:28:41 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. Response to Amendment The amendments filed 04/12/2022 have been entered. The amendments canceled claims 7, 11, 13-15 and 20. Therefore, claims 1-4, 6, 9, 12, 19 and 22-30 remain pending in the application, and claims 22-28 remain withdrawn from consideration. Response to Arguments Applicant’s remarks filed 04/12/2022 have been fully considered.",
"Applicant asserts that “The rejections of the claims under 35 U.S.C. §112(b) have been addressed by various amendments to the claims”. However, some of said rejections were not addressed, and in addressing some of said rejections new issues under 35 U.S.C. § 112(b) were introduced. See the current rejections below. Further, applicant asserts that “the claims as now amended define the invention over the prior art.” However, examiner stated in the Non-Final Office Action filed 01/14/2022 that “For at least the reasons set forth in the Remarks (see pg. 16, par. 2-3, of the response filed 11/23/2021), claims 1 and 29-30, and the dependents thereof, would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112 and the claim objections set forth in this Office Action.” The obvious inference from said statement is that the claims would be allowable if the issues under 35 U.S.C. § 112 are overcome without deleting the allowable subject matter from said claims.",
"However, applicant has deleted the allowable subject matter; therefore, the claims are again rejected in view of the prior art of record. See the current rejections below. Claim Objections Claims 1, 4, 12 and 29 are objected to because of the following informalities: Regarding claim 1: the limitation “the said at least one pressing roller” should read, for example, ‘the at least one first pressing roller’. Regarding claim 4: the limitation “the axial direction” should read, for example, ‘an axial direction of the first rotatable pressing roller and the second rotatable pressing roller’ to eliminate any potential confusion as to what structure the axial direction is referring to. Regarding claim 12: the recitation “teeth (4.3) of the at least one crushing roller (3a) and the opposite crushing element (3b) include a curvature or a bevel (4c) viewed in the circumferential direction at a transition from outer edges (4b) to side flanks” should read, for example, ‘the teeth of the at least one first crushing roller (3a) and teeth of the opposite crushing element (3b) include a curvature or a bevel (4c) viewed in the circumferential direction at a transition from outer edges (4b) to side flanks of the teeth on each of the at least one crushing roller and the opposite crushing element’. Further, “the at least one crushing roller” should read ‘the at least a first crushing roller’ to be consistent with claims 9 and 29 from which claim 12 depends.",
"Regarding claim 29: the phrase “an an” in line 23 should read ‘and an’. Also, the recitation “rotation axes” in line 34 should read, for example ‘rotation axes of the first and the second pressing rollers and of the first and the second crushing rollers’ to eliminate any potential confusion as to what structure the axial direction is referring to. Further, the recitation “element (3b)” in line 28 should read ‘element’, since it could be either a fixed crush support surface or a second rotatable crushing roller (see lines 29, 30). Appropriate correction for the above list of issues is required.",
"Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C.",
"112(f): (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C.",
"112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C.",
"112(f) except as otherwise indicated in an Office Action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office Action. This application includes one or more claim limitations that do not use the word “means,” but nonetheless invokes 35 U.S.C. 112(f) because the claim limitation(s) uses a generic placeholder (first prong of the three-prong test) that is coupled with functional language (second prong) without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier (third prong). Such claim limitations are: “an opposite crushing element” (clms. 1, 29, 30) “drive device for driving” (clms.",
"2, 6) Because these limitations are being interpreted under 35 U.S.C. 112(f), they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitations to avoid it being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid it being interpreted under 35 U.S.C.",
"112(f). Claim Rejections - 35 USC § 112(a) The following is a quotation of the first paragraph of 35 U.S.C. § 112(a): (a) IN GENERAL — The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. Claim 30 is rejected under 35 U.S.C.",
"§ 112(a) as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor had possession of the claimed invention. Regarding claim 30: the claim recites “wherein a blade shaft (17) that is drivable to rotate has a rotation axis (17') at an angle between 0 and 45 degrees to the pressing slot (2)”. However, no support for an angle between 0 and 45 degrees could be located in the specification and the drawings alone are insufficient to provide support for the claimed range. The specification at ¶ 4 on pg. 18 states that the rotation axis is parallel to the rotation axes of the pressing device. Therefore, the limitation enters new matter into the disclosure. Correction is required. Claim Rejections - 35 USC § 112(b) The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. Claims 1-4, 6, 9, 12, 19 and 29-30 are rejected under 35 U.S.C.",
"112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. Any claims not directly addressed are only rejected under 35 U.S.C. 112(b) for being dependent on a rejected base claim. Regarding claim 1: the claim recites “pressing counter element has a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation (see lns. 6-8). Therefore, it is unclear if the pressing counter element, pressing support surface, and second rotatable pressing roller, are intended to be required in the claim.",
"They are being interpreted as being required in the claim. In order to resolve the issue, examiner suggests replacing “rotate for” in line 6 with ‘rotate and configured for’. Regarding claim 3: there is no antecedent basis in the claim for “the pressing support surface”. Regarding claim 12: it is unclear if the “teeth” (ln. 3) are the same as or additional to the “teeth” of clm. 29, ln. 13. They are being interpreted as being the same. Regarding claim 29: the claim recites the “pressing counter element has either a pressing support surface, or a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation beginning with “for capturing and pulling...” (see lns. 6-8).",
"Therefore, it is unclear if the pressing counter element, pressing support surface, and second rotatable pressing roller, are intended to be required in the claim. They are being interpreted as being required in the claims. Examiner suggests positively reciting the pressing counter element, the pressing support surface, and the second rotatable pressing roller. There is no antecedent basis in the claim for “the crushing element roller” (ln. 33). Further, the claim recites “the opposite crushing element (3b), comprises either a fixed crush support surface (5’), or a second rotatable crushing roller (3b)” in lines 28-30; but recites “the crushing element roller” in line 33, which it appears is intended to correspond to the second rotatable crushing roller and, thus, eliminates the option of the opposite crushing element being a fixed crush support surface. Therefore, the claim is indefinite due to the contradicting limitations. The claim is being interpreted such that the fixed crush support surface is not an option. Additionally, the limitation “second rotatable crushing roller” renders the claim indefinite because it implies that there is a first rotatable crushing roller, but a first has not been recited.",
"And, it is unclear if “the crushing element roller” in line 33 is additional to the first crushing roller and the second rotatable crushing roller. The crushing element roller is being interpreted as the second rotatable crushing roller. Regarding claim 30: the claim recites the “pressing counter element has a second rotatable pressing roller” (lns. 10-12). However, the pressing counter element has not been positively recited since it is initially introduced in an intended use limitation beginning with “for capturing and pulling...” (see lns. 6-8). And it is improper to further define/limit structure relative to features that are not positively recited. Therefore, it is unclear if the pressing counter element and second rotatable pressing roller, are intended to be required in the claim. They are being interpreted as being required in the claims.",
"Examiner suggests positively reciting the pressing counter element and the second rotatable pressing roller. Further, the claims recite “a crushing slot (5) that is formed between the crushing roller (3a) and an opposite crushing element” (lns. 24-25). However, the opposite crushing element has not been positively recited since it is introduced in the intended use limitation beginning with “for capturing and pulling...”, and it is improper to define features (i.e., the crushing slot) relative to elements that are not positively recited. Therefore, it is unclear if applicant intends for the opposite crushing element to be required in the claims.",
"It is currently being interpreted as being required in the claim. In order to resolve the issue, examiner suggests amending said claims in accordance with the current amendments to lines 23-24 of claim 1. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office Action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention. Claims 1-4, 9, 19 and 29-30 are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Davis (US 6,131,509 A). Regarding claim 1: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig. 7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the pressing device comprises at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and the pressing counter element (114a, fig. 7) has a second rotatable pressing roller (see fig. 7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and the second rotatable pressing roller (114a) includes teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs.",
"6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), characterized in that a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) and an opposite crushing element (118) wherein the first crushing roller is drivable to rotate (col. 6, lns.",
"12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight). Regarding claim 2, which depends on claim 1: Davis discloses the device includes at least one drive device (122, fig. 8) for driving the pressing device (116a) or the crushing device (120) (col. 6, lns. 12-17). Regarding claim 3, which depends on claim 1: Davis discloses the second rotatable pressing roller(114a) is a drivable pressing roller that rotates counter acting to the first pressing roller (col. 2, lns. 17-22).",
"Regarding claim 4, which depends on claim 3: Davis discloses the pressing slot between the pressing rollers (114a, 116a) has a constant width in the axial direction of said rollers (see figs. 6-8). Regarding claim 29: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig. 7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight) comprising at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and a pressing counter element (114a, fig. 7) has a second rotatable pressing roller (see fig.",
"7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and a second rotatable pressing roller (114a) include teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs.",
"6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), characterized in that a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) and an opposite crushing element (118) wherein the first crushing roller is drivable to rotate (col. 6, lns.",
"12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the opposite crushing element comprises a rotatable crushing roller (118, fig. 7) that is drivable counter rotating to the first crushing roller (col. 2, lns. 17-22); and the first pressing roller, the second pressing roller, the first crushing roller, and the second crushing roller have an operating portion (the portion within the housing 112, fig. 6) in a direction of a rotation axis of each of said rollers in a center portion (the portion within the housing 112) of each of said rollers and bearing journals (the structures on which the sprockets 162 are attached, fig. 8) of each of said rollers protrude axially on a face side of each of said rollers beyond the operating portion.",
"Regarding claim 9, which depends on claim 29: Davis discloses the first crushing roller (120) includes teeth (119) that are arranged in an operating portion distributed over the circumference in a radial direction beyond a base diameter of the at least a first crushing roller in the operating portion (see fig. 7, the teeth 119 protrude in the radial direction from the diameter of the roller 120). Regarding claim 30: Davis discloses a device for compacting hollow elements, including bottles made from plastic material or cans made from metal, the device comprising: a pressing device (116a, fig.",
"7) (NOTE: the recitation “for flat pressing and optionally perforating a hollow element into a flattened plate shaped hollow element” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the pressing device comprises at least one first rotatable pressing roller (see fig. 7, pressing device 116a is a pressing roller) that is drivable to rotate (col. 6, lns. 12-17) (NOTE: the recitation “for capturing and pulling the hollow element through a pressing slot configured between the pressing roller and a pressing counter element in the pass through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight), and a pressing counter element (114a, fig.",
"7) has a second rotatable pressing roller (see fig. 7, pressing counter element 114a is a pressing roller), wherein the at least one first rotatable pressing roller (116a) and the second rotatable pressing roller (114a) includes teeth (teeth of tooth ring portions 152) within plural axially offset tooth ring portions (see figs. 6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 114a positioned within a space formed by the tooth ring portions of roller 116a), and the teeth of the first rotatable pressing roller (116a) penetrate in the radial direction into the axial offsets between the tooth ring portions of the second rotatable pressing roller (see figs.",
"6, 7 and 9, which shows the teeth of tooth ring portions 152 of roller 116a penetrating in the radial direction into axial offsets formed by the tooth ring portions of roller 114a), and a crushing device (120) is arranged in the pass-through direction downstream of the pressing device (116a) (see fig. 7) (NOTE: the recitation “for crushing the flattened plate shaped hollow element in one of the directions of the main plane of the plate” is being interpreted as intended use and, accordingly, is not being given patentable weight), wherein the crushing device comprises at least one first crushing roller (see fig. 7, the crushing device 120 is a crushing roller) that is drivable to rotate (col. 6, lns.",
"12-17) (NOTE: the recitation “for capturing and pulling a flattened hollow element through a crushing slot that is formed between the crushing roller and an opposite crushing element in the pass-through direction” is being interpreted as intended use and, accordingly, is not being given patentable weight); wherein a blade shaft that is drivable to rotate has a rotation axis at an angle between 0 and 45 degrees to the pressing slot, is arranged upstream of the pressing device and opposite to a blade counter-element (see annotated fig. 6 of Davis below, the angle of the rotation axis relative to the pressing slot is 0 degrees, i.e., the rotation axis and pressing slot are parallel). PNG media_image1.png 354 812 media_image1.png Greyscale Annotated Figure 6 of Davis Regarding claim 19, which depends on claim 30: Davis discloses blades on the blade shaft extend in an axial direction of the blade shaft over at least 60% of a length of an operating portion of the at least one pressing roller (see fig. 6 above).",
"Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office Action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claim 6 is rejected under 35 U.S.C.",
"103 as being unpatentable over Davis, in view of Linnekogel et al. (EP 3,243,646 A1). Regarding claim 6, which depends on claim 29: Davis discloses the crushing slot (slot between crushing rollers 118 and 120, fig. 7) is arranged in the pass-through direction or positioned so that a flattened plate shaped hollow element that is moved through between the first and second rotatable pressing rollers (116a, 114a, respectively) in the pass-through direction reaches into the crushing slot crushing roller (see fig.",
"7), at least one drive device (122, fig. 8) is provided that is configured to drive said first crushing roller (col. 6, lns. 17-20). Davis is silent regarding the drive device driving said first crushing roller with a lower circumferential velocity than a circumferential velocity of the pressing rollers. However, Linnekogel teaches a device for compacting hollow elements (see fig. 1) comprising a pressing roller (3) that cooperates with a pressing counter element (4), and a crushing roller. Linnekogel further teaches that the crushing roller (11) is driven at a rotational speed that is less than the rotational speed of the pressing roller (3) (¶ [0042], lns. 319-321), and that by doing so the flattened container (8) is further compacted as it is folded up like an accordion (¶ [0045], lns. 349-350).",
"Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Davis such that the crushing rollers are driven to rotate at a lower circumferential speed than the pressing rollers, thereby further compacting the flattened hollow element and folding it up like an accordion, as taught by Linnekogel. Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Davis, in view of Schwelling (US 2014/0196616 A1). Regarding claim 12, which depends on claim 9: Davis is silent regarding the teeth of the at least one first crushing roller and teeth of the opposite crushing element include a curvature or a bevel viewed in a circumferential direction of the first and the second crushing rollers at a transition from their outer edges to their side flanks.",
"However, Schwelling teaches a device (see fig. 1a) for crushing beverage containers (15, 16) comprising a crushing roller (5) and an opposite crushing element (6); and teeth (511, 611, fig. 3a) of the crushing roller and crushing element (5, 6) include a curvature or a bevel (516, 616; also see [0099], [0132]) viewed in a circumferential direction (as shown in fig. 3a) at a transition from their outer edges (513, 613) to their side flanks (515, 615). Schwelling further teaches in ¶ [0053] that the particular configuration of the teeth of the crushing roller and crushing element provides the advantage that “tensions in the material of the related wall region of the body 15 or 16 being passed through, which could bring about re-expansion, are eliminated by means of only reduced forming.” Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to replace the tooth configuration (fig. 6 of Davis) of the crushing roller and crushing element with the tooth configuration (see fig. 3a) of Schwelling, thereby providing Davis with a tooth configuration that eliminates tensions in the material, as taught by Schwelling.",
"Allowable Subject Matter Examiner stated in the Non-Final Office Action filed 01/14/2022 that “For at least the reasons set forth in the Remarks (see pg. 16, par. 2-3, of the response filed 11/23/2021), claims 1 and 29-30, and the dependents thereof, would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112 and the claim objections set forth in this Office Action.” The obvious inference from said statement is that the claims would be allowable if the issues under 35 U.S.C. 112 are overcome without deleting the allowable subject matter of the independent claims. However, applicant has deleted the allowable subject matter; therefore, even if the current issues under 35 U.S.C. 112 are overcome, the claims would still not be in condition for allowance. Conclusion Applicant's amendment necessitated any new grounds of rejection presented in this Office Action. Accordingly, THIS ACTION IS MADE FINAL.",
"See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JARED O BROWN whose telephone number is (303)297-4445. The examiner can normally be reached Monday - Friday: 8:00 - 5:00 (Mountain Time). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelley M Self can be reached on 571-272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /JARED O BROWN/Examiner, Art Unit 3725 /JESSICA CAHILL/Primary Examiner, Art Unit 3753"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.4
AMENDMENT TO RESTRICTED STOCK AGREEMENT
OF
PSB HOLDINGS, INC.
THIS AMENDMENT TO PSB HOLDINGS, INC. RESTRICTED STOCK AGREEMENT (this “Amendment”) is entered into as of the 17th day of June, 2008 by and between PSB Holdings, Inc. of Wausau, Wisconsin and [INSERT EMPLOYEE NAME] (the “Executive”). All terms used herein which are not otherwise defined have the same meaning as in the PSB Holdings, Inc. Restricted Stock Agreement (the “Agreement”) with the Executive.
WHEREAS, [INSERT EMPLOYEE NAME] entered into the Agreement, effective January 2, 2008; and
WHEREAS, PSB Holdings, Inc. and [INSERT EMPLOYEE NAME] mutually agree to amend the Agreement.
NOW, THEREFORE, the Agreement is hereby amended as follows:
1.
Acceleration of Vesting Upon A Change of Control. Section 2, VESTING, FORFEITURE AND TRANSFER RESTRICTIONS, is hereby amended to add the following at the end of the existing Section 2:
“Notwithstanding anything contained herein to the contrary, all Unvested Shares shall become Vested Shares upon a “Change of Control.” For the purpose of this Agreement, a “Change of Control” shall be deemed to have occurred:
(a)
when any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act, excluding any employee benefit plan sponsored or maintained by the Company or any subsidiary of the Company (including any trustee of such plan acting as trustee), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, as amended from time to time), of securities of the Company or the Bank representing 30% or more of the combined voting power of the Bank’s or Company’s then outstanding securities with respect to the election of the directors of the Bank or the Company; or
(b)
when, during any period of 24 consecutive months, the individuals who, at the beginning of such period, constitute the board of directors of the Company (the “Incumbent Directors”) cease for any reason other than death to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least a majority of the directors who then
--------------------------------------------------------------------------------
qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or by prior operation of this provision; or
(c)
the occurrence of a transaction requiring stockholder approval of the acquisition of the Bank by an entity other than the Company or a 50% or more owned subsidiary of the Company or shareholder approval of the acquisition of the Company through purchase of assets, or by merger, consolidation or otherwise, except in the case of a transaction pursuant to which, immediately after the transaction, Company’s shareholders immediately prior to the transaction own at least 60% of the combined voting power of the surviving entity’s then outstanding securities with respect to the election of the directors of such entity solely be reason of such transaction; or
(d)
the liquidation or dissolution of the Bank or the Company.”
2.
Full Force and Effect. Except as expressly amended hereby, the Agreement shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties below have executed this Amendment effective as of the date first set forth above.
PSB Holdings, Inc.
By:
[INSERT EMPLOYEE NAME]
Gordon Gullickson
Chairman of the Board of Directors
- 2 - | [
"Exhibit 10.4 AMENDMENT TO RESTRICTED STOCK AGREEMENT OF PSB HOLDINGS, INC. THIS AMENDMENT TO PSB HOLDINGS, INC. RESTRICTED STOCK AGREEMENT (this “Amendment”) is entered into as of the 17th day of June, 2008 by and between PSB Holdings, Inc. of Wausau, Wisconsin and [INSERT EMPLOYEE NAME] (the “Executive”). All terms used herein which are not otherwise defined have the same meaning as in the PSB Holdings, Inc. Restricted Stock Agreement (the “Agreement”) with the Executive. WHEREAS, [INSERT EMPLOYEE NAME] entered into the Agreement, effective January 2, 2008; and WHEREAS, PSB Holdings, Inc. and [INSERT EMPLOYEE NAME] mutually agree to amend the Agreement. NOW, THEREFORE, the Agreement is hereby amended as follows: 1. Acceleration of Vesting Upon A Change of Control.",
"Section 2, VESTING, FORFEITURE AND TRANSFER RESTRICTIONS, is hereby amended to add the following at the end of the existing Section 2: “Notwithstanding anything contained herein to the contrary, all Unvested Shares shall become Vested Shares upon a “Change of Control.” For the purpose of this Agreement, a “Change of Control” shall be deemed to have occurred: (a) when any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act, excluding any employee benefit plan sponsored or maintained by the Company or any subsidiary of the Company (including any trustee of such plan acting as trustee), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, as amended from time to time), of securities of the Company or the Bank representing 30% or more of the combined voting power of the Bank’s or Company’s then outstanding securities with respect to the election of the directors of the Bank or the Company; or (b) when, during any period of 24 consecutive months, the individuals who, at the beginning of such period, constitute the board of directors of the Company (the “Incumbent Directors”) cease for any reason other than death to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least a majority of the directors who then -------------------------------------------------------------------------------- qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or by prior operation of this provision; or (c) the occurrence of a transaction requiring stockholder approval of the acquisition of the Bank by an entity other than the Company or a 50% or more owned subsidiary of the Company or shareholder approval of the acquisition of the Company through purchase of assets, or by merger, consolidation or otherwise, except in the case of a transaction pursuant to which, immediately after the transaction, Company’s shareholders immediately prior to the transaction own at least 60% of the combined voting power of the surviving entity’s then outstanding securities with respect to the election of the directors of such entity solely be reason of such transaction; or (d) the liquidation or dissolution of the Bank or the Company.” 2.",
"Full Force and Effect. Except as expressly amended hereby, the Agreement shall remain in full force and effect in accordance with its terms. IN WITNESS WHEREOF, the parties below have executed this Amendment effective as of the date first set forth above. PSB Holdings, Inc. By: [INSERT EMPLOYEE NAME] Gordon Gullickson Chairman of the Board of Directors - 2 -"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Election/Restrictions Applicant elected the drive shaft shown in Fig. 2C (Group I, Species C) without traverse in the reply filed on April 12, 2022.
Claim Rejections - 35 USC § 112 Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites the limitation, “A drive shaft comprising . . .a static cushioning member”. Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed. The drive shaft 20 is disclosed as comprising just one cushioning member, layer 60 (see paragraph 0029). Layer 60 is glued to the drive shaft 20 (see paragraph 0028), which means it rotates with every other element of shaft 20 and thus is not static. Claim 1 recites the limitation, “a static cushioning member . . . said at least one ring can contact the static cushioning member to limit flexing”. Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed. The only static component that makes such contact is damper 34 (see paragraph 0020). However, damper 34 is not disclosed as a cushioning member (see paragraph 0029). Claim 21 recites the limitation, “said at least one ring extends about the entire circumference of the central tubular portion.” Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed.
Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Claim 1 recites the limitation, “a static cushioning member is placed outwardly of said ring, during operation the drive shaft being potentially subject to flexing, such that said at least one ring can contact the static cushioning member to limit flexing.” However, in the elected species (i.e. the drive shaft shown in Fig. 2C) the layer 60, not ring 56 ,makes contact with the static component 34 to limit flexing. As such, it would not be possible for one of ordinary skill in the art to make or use the claimed invention without undue experimentation. In making this determination the examiner affirms that he has considered the breadth of the claims; PNG media_image1.png 18 19 media_image1.png Greyscale the nature of the invention; PNG media_image1.png 18 19 media_image1.png Greyscale the state of the prior art; PNG media_image1.png 18 19 media_image1.png Greyscale the level of one of ordinary skill; PNG media_image1.png 18 19 media_image1.png Greyscale the level of predictability in the art; PNG media_image1.png 18 19 media_image1.png Greyscale the amount of direction provided by the inventor; any PNG media_image1.png 18 19 media_image1.png Greyscale existence of working examples; and the quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claims are directed to a combination of a product (i.e. a drive shaft) and a method of using the product (see “a static cushioning member is placed outwardly of said [drive shaft], during operation the drive shaft being potentially subject to flexing, such that said [drive shaft] can contact the static cushioning member to limit flexing.”) A single claim which claims both a product and a method of using the product is indefinite because it is not clear what applicant regards as his invention. See MPEP § 2173.05(p)II.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends.
Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Greg Binda whose telephone number is (571)272-7077. The examiner can normally be reached M-F 9-5 ET. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Troutman can be reached on 571-270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Greg Binda/Primary Examiner, Art Unit 3679 | 2022-07-31T22:05:43 | [
"Election/Restrictions Applicant elected the drive shaft shown in Fig. 2C (Group I, Species C) without traverse in the reply filed on April 12, 2022. Claim Rejections - 35 USC § 112 Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites the limitation, “A drive shaft comprising . . .a static cushioning member”. Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed. The drive shaft 20 is disclosed as comprising just one cushioning member, layer 60 (see paragraph 0029).",
"Layer 60 is glued to the drive shaft 20 (see paragraph 0028), which means it rotates with every other element of shaft 20 and thus is not static. Claim 1 recites the limitation, “a static cushioning member . . . said at least one ring can contact the static cushioning member to limit flexing”. Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed. The only static component that makes such contact is damper 34 (see paragraph 0020). However, damper 34 is not disclosed as a cushioning member (see paragraph 0029). Claim 21 recites the limitation, “said at least one ring extends about the entire circumference of the central tubular portion.” Applicant has not pointed out where this limitation is supported. Nor does it appear to be supported in the application as originally filed. Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C.",
"112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Claim 1 recites the limitation, “a static cushioning member is placed outwardly of said ring, during operation the drive shaft being potentially subject to flexing, such that said at least one ring can contact the static cushioning member to limit flexing.” However, in the elected species (i.e. the drive shaft shown in Fig. 2C) the layer 60, not ring 56 ,makes contact with the static component 34 to limit flexing. As such, it would not be possible for one of ordinary skill in the art to make or use the claimed invention without undue experimentation. In making this determination the examiner affirms that he has considered the breadth of the claims; PNG media_image1.png 18 19 media_image1.png Greyscale the nature of the invention; PNG media_image1.png 18 19 media_image1.png Greyscale the state of the prior art; PNG media_image1.png 18 19 media_image1.png Greyscale the level of one of ordinary skill; PNG media_image1.png 18 19 media_image1.png Greyscale the level of predictability in the art; PNG media_image1.png 18 19 media_image1.png Greyscale the amount of direction provided by the inventor; any PNG media_image1.png 18 19 media_image1.png Greyscale existence of working examples; and the quantity of experimentation needed to make or use the invention based on the content of the disclosure.",
"Claims 1, 2, 4-6, 10, 13, 14, 16 & 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.",
"The claims are directed to a combination of a product (i.e. a drive shaft) and a method of using the product (see “a static cushioning member is placed outwardly of said [drive shaft], during operation the drive shaft being potentially subject to flexing, such that said [drive shaft] can contact the static cushioning member to limit flexing.”) A single claim which claims both a product and a method of using the product is indefinite because it is not clear what applicant regards as his invention. See MPEP § 2173.05(p)II. Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action.",
"In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Greg Binda whose telephone number is (571)272-7077. The examiner can normally be reached M-F 9-5 ET.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Troutman can be reached on 571-270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Greg Binda/Primary Examiner, Art Unit 3679"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-07.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
189 F.2d 31 89 U.S.P.Q. 411 KEROTEST MFG. CO.v.C-O-TWO FIRE EQUIPMENT CO. No. 10302. United States Court of Appeals Third Circuit. Argued Dec. 4, 1950.Reargued April 20, 1951.Decided May 24, 1951.
Walter J. Blenko. Pittsburgh, Pa. (John F. C. Glenn, Pittsburgh, Pa., Aaron Finger, Wilmington, Del., Richards, Layton & Finger, Wilmington, Del., Smith, Buchanan & Ingersoll and Blenko, Hoopes, Leonard & Glenn, Pittsburgh, Pa., on the brief) for plaintiff-appellee. R. Morton Adams, New York City (Pennie, Edmonds, Morton & Barrows, New York City, Arthur G. Connolly, Wilmington, Del., on the brief), for defendant-appellant. Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges. BIGGS, Chief Judge.
1 Kerotest Manufacturing Company, the plaintiff in the instant proceeding, sued C-O-two Fire Equipment Company for a declaratory judgment to have two patents owned by C-O-Two, Re. 23,142 and 2,454,621, declared invalid. The suit at bar was commenced on March 9, 1950. Kerotest is a manufacturer of valves for use in portable carbon dioxide fire extinguishers. C-O-Two manufacturers similar extinguishers.
2 On January 17, 1950, C-O-Two sued Acme Equipment Company, Inc. in the United States District Court for the Northern District of Illinois, charging Acme with infringing the two patents previously referred to by 'making * * * and selling * * * squeeze grip valves and discharge heads for portable carbon dioxide fire extinguishers * * * '1 This proceeding is generally referred to as the 'Chicago suit'.
3 Kerotest did not intervene in the Chicago action and apparently did not offer to defend Acme; instead according to an affidavit executed by Roush, Kerotest's president, it brought the instant suit for a declaratory judgment. Thereafter, on March 22, 1950, C-O-Two moved to have Kerotest made an actual party defendant in the Chicago litigation. Two days later Acme filed a motion in the Chicago action to stay that proceeding because the instant suit had been brought by Kerotest. On March 25, C-O-Two moved for a stay in this proceeding pending the prosecution of the Chicago action. On March 29, Kerotest made a motion in the instant suit to enjoin prosecution of the Chicago litigation either as a whole or as to it.
4 C-O-Two's motion for a stay and Kerotest's motion for an injunction came on for hearing before Chief Judge Leahy on April 21, 1950. Kerotest argued that it had not been properly joined in the Chiago action but that even it it had been so joined, that joinder had not taken place until after it had filed first; that it involved the same controversy as the suit at bar, viz., the same patents and the same infringing devices, even if the parties were not the same. C-O-Two insisted that unnecessary duplication of litigation would be avoided by staying the instant case. Judge Leahy held that the court below could not enjoin C-O-Two from seeking a final adjudication against Acme in the Chicago suit and, further, that it would be an abuse of discretion to do so. He stated that inasmuch as the Chicago suit was scheduled for an early trial it would be more economical 'of judicial time' for Kerotest to contest the issues in Illinois as a codefendant rather than consume the time of the United States District Court in Delaware in 'duplicate litigation.' Judge Leahy also pointed out that there was no vested right in a litigant to have a case tried by one judge rather than by another.2 He stayed the proceedings for ninety days providing that both parties might renew their motions thereafter, it being his intention to see how the Chicago litigation proceeded within that period for though answers had not been filed a date for trial of the Chicago suit had already been set.
5 Kerotest appealed to this court which affirmed the judgment. 182 F.2d 773. By the time the case was argued on appeal, Acme's motion for a stay in the Chicago litigation had been denied and Kerotest had moved the United States District Court for the Northern District of Illinois to dismiss the Chicago suit as to it. These facts are alluded to in a footnote to Judge Hastie's opinion. It appeared from the arguments on that appeal that Kerotest had abandoned its effort to have the Chicago suit stayed in its entirety and limited its position to asking that that action be restrained only insofar as it involved Kerotest.
6 When the ninety day period provided by Judge Leahy's judgment had expired, Acme's motion in the Chicago suit for a stay because of the pendency of the instant case had been denied and Acme had filed an answer. Kerotest had moved to quash the service and to dismiss the case as to it. These motions had been denied and the Illinois Court had entered an order on May 29, 1950, nunc pro tunc as of March 24, 1950 making Kerotest a party-defendant as of March 24, 1950, C-O-Two having amended its complaint to that end. Kerotest also had filed an answer. The trial date had been reset for September 28, 1950 by agreement of counsel since the original trial date of July 8 could not be adhered to.
7 On July 21, 1950 Kerotest moved for a preliminary injunction to restrain C-O-Two from proceeding with the Chicago litigation and on that day also C-O-Two moved for a stay of the instant suit pending disposition of the Chicago litigation. These motions were heard by Judge Rodney in the court below. He concluded, D.C., 92 F.Supp. 943, that the motion of the plaintiff, Kerotest, for a preliminary injunction restraining the defendant, C-O-Two, from proceeding against Kerotest in the Chicago action should be granted and that the motion of C-O-Two for an order staying further proceedings in the instant suit until ten days after the final determination of the Chicago action should be denied.
8 The court below based its decision on Crosley Corporation v. Hazeltine Corporation, 3 Cir., 122 F.2d 925, 930, Crosley Corp. v. Westinghouse Electric & Mfg. Co., 3 Cir., 130 F.2d 474, 475, and Triangle Conduit & Cable Co., Inc. v. National Electric Products Corporation, 3 Cir., 125 F.2d 1008, 1009, all decided by this court. Judge Rodney concluded properly that the same subject matter was before the Illinois court and the Delaware court but went on to hold in effect that because on March 9, 1950, when the suit at bar was filed, Kerotest had not been made a party in the Chicago suit, the rule of the Hazeltine, Westinghouse and Electric Products cases required a stay of the proceedings in Illinois while the Delaware litigation was prosecuted. Judge Rodney pointed out also that an amendment of the kind effected by C-O-Two as of March 24, 1950, whereby Kerotest was made a party to the Chicago litigation ' * * * does not relate back in time to the filing of the original suit but is akin to the institution of a new action against the new parties.'3
9 We cannot agree with the conclusions reached. To the end that our position may be made plain we state again that the parties to the action at bar are Kerotest and C-O-Two; that the parties to the Chicago suit are C-O-Two and Acme and Kerotest, but that Kerotest did not become a party to the Chicago action until as of March 24, 1950, whereas the instant suit was brought on March 9, 1950. We do not think that the rule of the cited decisions requires the order made by the court below. Our reasons follow.
10 In Crosley v. Hazeltine, after litigation in which Hazeltine had sued Crosley in Ohio alleging infringement of two out of twenty-two possibly pertinent patents, Crosley brought a declaratory judgment suit against Hazeltine in the Delaware District Court to determine the validity of the remaining twenty patents. 38 F.Supp. 38. Shortly thereafter Hazeltine filed nine suits in the District of Ohio alleging that Crosley had infringed fifteen of the twenty patents involved in the declaratory judgment suit. We held that the Delaware District Court should enjoin the Ohio suits. Two parties only were involved and it will be seen that the entire subject matter of the litigation was before the Delaware court prior to the filing of the Ohio suit to test the validity of the fifteen patents. The differences between the circumstances of Crosley v. Hazeltine and those at bar seem obvious.
11 In Crosley v. Westinghouse, Crosley filed a suit for a declaratory judgment against Westinghouse in the District Court for the Western District of Pennsylvania to have sixteen patents, which Westinghouse asserted Crosley had infringed, declared invalid and not infringed. 43 F.Supp. 690. In an obvious race to the court house, one day later Westinghouse filed three suits against Crosley in an Ohio District Court, charging infringement by Crosley of the sixteen patents. We held that the Pennsylvania court should enjoin the prosecution of these infringement suits in Ohio. Again only two parties were involved and it will be seen that the entire subject matter of the litigation was before the Pennsylvania District Court prior to the time the suits were filed in Ohio.
12 It is primarily on the intervening case of Triangle Conduit & Cable Co. v. National that Kerotest relies. In this case, early in 1941, Triangle sued National in the District of Delaware seeking a declaratory judgment to the effect that eleven patents owned by National were invalid. Eighteen days later National filed suit in the Eastern District of Michigan against Triangle and Sears, Roebuck & Company, by which it sought judgment that Triangle had infringed by manufacturing, selling and using articles in violation of all the patents and that Sears, Roebuck had infringed by reselling articles manufactured in violation of six of the seven patents. We held that the Delaware District Court, having first obtained jurisdiction of the entire controversy, should proceed to adjudicate the rights of Triangle and National.
13 Again it will be observed that there are substantial differences between the facts of the Triangle case and those of the case at bar. In the Triangle case the Delaware litigation for a declaratory judgment was the first action and embraced all the patents which were or became the subject matter of any suit. The two principal antagonists were in the Delaware theatre when the declaratory judgment suit was filed. Only the retailer, Sears, was outside the Delaware arena. Obviously, National's attempt to transfer the struggle to Michigan for no other purpose than to enable National to compel Sears to take part in it could not meet with success. In the instant case the suit brought by C-O-Two against Acme in Illinois long antedated the declaratory judgment suit in Delaware brought by Kerotest, D.C., 92 F.Supp. 943. The Chicago suit appears to have been brought in good faith and every patent involved in the Delaware litigation was before the Chicago court. Kerotest could have entered the Chicago litigation had it seen fit to do so. Indeed C-O-Two subsequently compelled its entry. Kerotest, while displaying an apparent reluctance to enter the Illinois arena, did not harbor such an attitude toward the Delaware forum. In Triangle the declaratory judgment suit came first.
14 In the instant case the whole of the war and all the parties to it are in the Chicago theatre and there only can it be fought to a finish as the litigations are now cast. On the other hand if the battle is waged in the Delaware arena there is a strong probability that the Chicago suit nonetheless would have to be proceeded with for Acme is not and cannot be made a party to the Delaware litigation. The Chicago suit when adjudicated will bind all the parties in both cases. Why, under the circumstances, should there be two litigations where one will suffice? We can find no adequate reason. We assume, of course, that there will be prompt action in the Chicago theatre.
15 Neither Crosley nor Westinghouse nor Triangle was intended to lay down a rule of thumb. The rule as we conceived it was designed as an aid to the parties and to effect the ends of justice. As was said in Hammett v. Warner Brothers Pictures, 2 Cir., 176 F.2d 145, 150, it 'has been recognized that this rule is not to be applied in a mechanical way regardless of other considerations.' As we pointed out in the Westinghouse case the real question is not whether 'another suit' has been 'previously' or 'subsequently' begun between the parties but whether the relief sought can be 'more expeditiously and effectively afforded (in the other suit) than in the declaratory proceeding.' (130 F.2d 475.) We adhere to that view. We think that relief can be more expeditiously afforded in the Chicago proceeding than in the Delaware declaratory judgment suit. Compare Hammett v. Warner Brothers Pictures, 2 Cir., 176 F.2d 145, 148-151, a copy-right case which is closer perhaps on its facts to the case at bar than any other reported decision. Therein the Court of Appeals for the Second Circuit, citing the Crosley Case, decided the issue as we do here. Cf. Cresta Blanca Wine Co., Inc. v. Eastern Wine Corporation, 2 Cir., 143 F.2d 1012, and Speed Products Co. v. Tinnerman Products, 83 U.S.App.D.C. 243, 171 F.2d 727.
16 The order of the court below will be reversed and the cause remanded with the direction to enter an order staying further proceedings in this action until ten days after the final determination of the Chicago suit. If, however, the prosecution of the Chicago suit be unreasonably delayed, this court will entertain an application for a modification of the order.
17 MARIS, Circuit Judge, dissenting.
18 I am unable to agree that Judge Rodney was guilty of an abuse of discretion in this case. On the contrary I think that he soundly exercised the discretion confided in him by the rule which this court, sitting in banc, laid down in Triangle Conduit & Cable Co. v. National Elec. P. Corp. 3 Cir., 1942, 125 F.2d 1008, certiorari denied 316 U.S. 676, 62 S.Ct. 1046, 86 L.Ed. 1750. It is true that the majority do not say that Judge Rodney abused his discretion. Instead they ignore his careful weighing of the factors involved,1 intimate that he merely applied a 'rule of thumb,' and themselves proceed to determine the matter as though they were the district court. Moreover, while refusing to apply the rule of the Triangle case the majority do not expressly overrule that case but rather seek to distinguish it on its facts from the present case. I concede that there is a factual distinction in that in the Triangle case the infringement suit by National against Triangle and its customer, Sears, Roebuck & Company, was begun after the declaratory judgment suit had been brought by Triangle against National, whereas here the infringement suit by C-O-Two against Kerotest's customer, Acme Equipment Company, Inc., was begun before the declaratory judgment suit against C-O-Two was instituted by Kerotest.
19 In my opinion, however, the distinction made by the majority is without legal significance. To my mind the significant point is that Kerotest itself was not made a defendant in the infringement suit until after it had brought the declaratory judgment suit. In this respect the case is identical with the Triangle case. The two cases are also identical in that the litigation between the parties to the declaratory judgment suit was first begun by the institution of that suit while, if the controversies between the patent owner the infringing manufacturer and its customer were to be litigated in a single lawsuit, it could only be done in the infringement suit. In the Triangle case we held nonetheless that the declaratory judgment suit, in which the rights of patent owner against the infringing customer could not be litigated, must take precedence over the infringement suit so far as the litigation between the patent owner and the infringing manufacturer was concerned.
20 The rule which this court laid down in the Triangle case, as well as in Crosley Corporation v. Hazeltine Corporation, 3 Cir., 1941, 122 F.2d 925, certiorari denied 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211, and Crosley Corporation v. Westinghouse Elec. & Mfg. Co., 3 Cir., 1942, 130 F.2d 474, certiorari denied 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546, has had acceptance in at least five other circuits.2 I think it is particularly significant that in the Second Circuit in the case of Cresta Blanca Wine Co. v. Eastern Wine Corporation, 1944, 143 F.2d 1012, and in the case of Speed Products Co. v. Tinnerman Products, 1948, 83 U.S.App.D.C. 243, 171 F.2d 727, the rule of the Triangle case has been applied to facts indistinguishable in principle from those in the case now before us. The majority ask us to compare those cases with their decision here and I join in that request. For when such a comparison is made it will become plain that this court is today rejecting an application of the rule of the Triangle case which two other courts have heretofore made in reliance upon that decision by us.
21 In the Cresta Blanca Wine case Cresta had sued Eastern in the Southern District of New York for a declaratory judgment of noninfringement of a trade-mark. Thereafter Eastern sued Schenley and Cresta in the District of Delaware for infringement of the same mark. Schenley then applied for leave to intervene as a plaintiff in the suit in the Southern District of New York and both Cresta and Schenley asked that court to stay further proceedings in Delaware. The district court denied the intervention and the stay. The Court of Appeals reversed as to Cresta holding that the suit by Eastern in Delaware should be stayed as against Cresta since the suit in New York was prior as to those two parties. As to Schenley, however, the Court of Appeals, affirmed, saying, 143 F.2d at page 1014:
22 'It can hardly be said that intervention, had it been granted, would have related back to the filing of Cresta's complaint. Therefore Schenley's proposed intervention against Eastern would have been the later action between them and the very principle Schenley invokes would require staying the New York action rather than the Delaware suit.'
23 In the Speed Products case, the significant facts were these: Speed had brought suit against the Commissioner of Patents in the District of Columbia for the registration of a trade-mark. Shortly thereafter Speed sued Tinnerman in the Southern District of New York, seeking registration of the same mark and a declaratory judgment of noninfringement of Tinnerman's trade-marks. Later Tinnerman was granted permission to intervene in the suit in the District of Columbia and it filed an answer and counterclaim for infringement of its trade-marks. Thereafter Speed moved in the District of Columbia for an order suspending the suit there until the case in the Southern District of New York had been tried and Tinnerman moved for an order enjoining Speed from proceeding with the New York action until the suit in the District of Columbia had been tried. The District Court for the District of Columbia denied Speed's motion and granted that of Tinnerman but this action was reversed by the Court of Appeals for the District of Columbia, the court saying, 171 F.2d at page 729:
24 'The second question is whether or not the District of Columbia court had power to enjoin Speed Products from proceeding with the New York action. The law on this question is well settled. Where two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first, and an injunction to accomplish this is proper. This is recognized by three cases: Triangle Conduit & Cable Co. v. National Elec. P. Corp., 3 Cir., 1942, 125 F.2d 1008, certiorari denied 1942, 316 U.S. 676, 62 S.Ct. 1046, 86 L.Ed. 1750; Corsley Corporation v. Hazeltine Corporation, 3 Cir., 1941, 122 F.2d 925; Cresta Blanca Wine Co. v. Eastern Wine Corporation, 2 Cir., 1944, 143 F.2d 1012.'
25 The majority place much reliance on a later case in the Second Circuit, Hammett v. Warner Brothers Pictures, 1949, 176 F.2d 145, 148. In that case, however, the district court after weighing all the factors decided in the exercise of its discretion that the declaratory suit should be dismissed. The Court of Appeals in affirming took occasion to point out that the question 'was addressed to the sound discretion of the district court.' The court found no abuse of that discretion and rested its affirmance as well on the fact that disposition of the action for which priority was sought 'would settle only a part of the controversy between the parties to it.' Under these circumstances it was clearly within the discretion of the district court not to apply the rule of the Triangle case. In the present case, however, C-O-Two's entire cause of action against Kerotest may be heard and determined in the declaratory judgment proceeding presently pending in the District of Delaware. I cannot join in a judgment which holds by necessary inference that Judge Rodney abused his discretion in applying the rule of the Triangle case to this situation.
26 Judge KALODNER joins in this dissent.
1 In the complaint in the instant case Kerotest refers to another earlier action brought against The General Detroit Corporation by C-O-Two. This suit was filed in August, 1949, and settled in January, 1950, by a consent decree. We will make no further reference to it since it is irrelevant to the issues presented by the instant appeal
2 No opinion reported for publication
3 See the authorities contained in note 3 cited to the text, 92 F.Supp.at page 947
1 In his opinion, D.C., 92 F.Supp. 943, 947, Judge Rodney said: 'The question nevertheless arises as to whether this is one of those exceptional cases in which the taking of jurisdiction should be declined in favor of the later suit on the ground that the questions in controversy between the parties can be better settled and the relief sought be more expeditiously and effectively afforded in the Chicago action. The parties with which we are solely concerned are Kerotest and C-O-Two. Nothing is apparent to indicate that the Chicago action will settle the controversy between these parties better or more effectively. A date for the trial of the Chicago action is said to have been set for September, 1950, and this may give some apparent basis for the contention that the litigation there will be concluded more expeditiously. Whether the matter can be heard at that time must be problematical. There is nothing to indicate that with the full cooperation of the defendant, who allegedly is seeking an early trial, the trial in this jurisdiction may not be had expeditiously and some slight delay would seem too slim a basis for departure from recognized principles.'
2 Dwinell-wright Co. v. National Fruit Products Co., 1 Cir., 1942, 129 F.2d 848, 852, 853, Carbide & Carbon C. Corp. v. United States I. Chemicals, 4 Cir., 1944, 140 F.2d 47, 49; Cresta Blanca Wine Co. v. Eastern Wine Corporation, 2 Cir., 1944, 143 F.2d 1012, 1014; Speed Products Co. v. Tinnerman Products, 1948, 83 U.S.App.D.C. 243, 171 F.2d 727, 729; Chicago Pneumatic Tool Co. v. Hughes Tool Co., 10 Cir., 1950, 180 F.2d 97, 101, certiorari denied 340 U.S. 816, 71 S.Ct. 46 | 08-23-2011 | [
"189 F.2d 31 89 U.S.P.Q. 411 KEROTEST MFG. CO.v.C-O-TWO FIRE EQUIPMENT CO. No. 10302. United States Court of Appeals Third Circuit. Argued Dec. 4, 1950.Reargued April 20, 1951.Decided May 24, 1951. Walter J. Blenko. Pittsburgh, Pa. (John F. C. Glenn, Pittsburgh, Pa., Aaron Finger, Wilmington, Del., Richards, Layton & Finger, Wilmington, Del., Smith, Buchanan & Ingersoll and Blenko, Hoopes, Leonard & Glenn, Pittsburgh, Pa., on the brief) for plaintiff-appellee. R. Morton Adams, New York City (Pennie, Edmonds, Morton & Barrows, New York City, Arthur G. Connolly, Wilmington, Del., on the brief), for defendant-appellant. Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.",
"BIGGS, Chief Judge. 1 Kerotest Manufacturing Company, the plaintiff in the instant proceeding, sued C-O-two Fire Equipment Company for a declaratory judgment to have two patents owned by C-O-Two, Re. 23,142 and 2,454,621, declared invalid. The suit at bar was commenced on March 9, 1950. Kerotest is a manufacturer of valves for use in portable carbon dioxide fire extinguishers. C-O-Two manufacturers similar extinguishers. 2 On January 17, 1950, C-O-Two sued Acme Equipment Company, Inc. in the United States District Court for the Northern District of Illinois, charging Acme with infringing the two patents previously referred to by 'making * * * and selling * * * squeeze grip valves and discharge heads for portable carbon dioxide fire extinguishers * * * '1 This proceeding is generally referred to as the 'Chicago suit'. 3 Kerotest did not intervene in the Chicago action and apparently did not offer to defend Acme; instead according to an affidavit executed by Roush, Kerotest's president, it brought the instant suit for a declaratory judgment.",
"Thereafter, on March 22, 1950, C-O-Two moved to have Kerotest made an actual party defendant in the Chicago litigation. Two days later Acme filed a motion in the Chicago action to stay that proceeding because the instant suit had been brought by Kerotest. On March 25, C-O-Two moved for a stay in this proceeding pending the prosecution of the Chicago action. On March 29, Kerotest made a motion in the instant suit to enjoin prosecution of the Chicago litigation either as a whole or as to it. 4 C-O-Two's motion for a stay and Kerotest's motion for an injunction came on for hearing before Chief Judge Leahy on April 21, 1950. Kerotest argued that it had not been properly joined in the Chiago action but that even it it had been so joined, that joinder had not taken place until after it had filed first; that it involved the same controversy as the suit at bar, viz., the same patents and the same infringing devices, even if the parties were not the same. C-O-Two insisted that unnecessary duplication of litigation would be avoided by staying the instant case. Judge Leahy held that the court below could not enjoin C-O-Two from seeking a final adjudication against Acme in the Chicago suit and, further, that it would be an abuse of discretion to do so.",
"He stated that inasmuch as the Chicago suit was scheduled for an early trial it would be more economical 'of judicial time' for Kerotest to contest the issues in Illinois as a codefendant rather than consume the time of the United States District Court in Delaware in 'duplicate litigation.' Judge Leahy also pointed out that there was no vested right in a litigant to have a case tried by one judge rather than by another.2 He stayed the proceedings for ninety days providing that both parties might renew their motions thereafter, it being his intention to see how the Chicago litigation proceeded within that period for though answers had not been filed a date for trial of the Chicago suit had already been set. 5 Kerotest appealed to this court which affirmed the judgment. 182 F.2d 773.",
"By the time the case was argued on appeal, Acme's motion for a stay in the Chicago litigation had been denied and Kerotest had moved the United States District Court for the Northern District of Illinois to dismiss the Chicago suit as to it. These facts are alluded to in a footnote to Judge Hastie's opinion. It appeared from the arguments on that appeal that Kerotest had abandoned its effort to have the Chicago suit stayed in its entirety and limited its position to asking that that action be restrained only insofar as it involved Kerotest. 6 When the ninety day period provided by Judge Leahy's judgment had expired, Acme's motion in the Chicago suit for a stay because of the pendency of the instant case had been denied and Acme had filed an answer. Kerotest had moved to quash the service and to dismiss the case as to it. These motions had been denied and the Illinois Court had entered an order on May 29, 1950, nunc pro tunc as of March 24, 1950 making Kerotest a party-defendant as of March 24, 1950, C-O-Two having amended its complaint to that end.",
"Kerotest also had filed an answer. The trial date had been reset for September 28, 1950 by agreement of counsel since the original trial date of July 8 could not be adhered to. 7 On July 21, 1950 Kerotest moved for a preliminary injunction to restrain C-O-Two from proceeding with the Chicago litigation and on that day also C-O-Two moved for a stay of the instant suit pending disposition of the Chicago litigation. These motions were heard by Judge Rodney in the court below. He concluded, D.C., 92 F.Supp. 943, that the motion of the plaintiff, Kerotest, for a preliminary injunction restraining the defendant, C-O-Two, from proceeding against Kerotest in the Chicago action should be granted and that the motion of C-O-Two for an order staying further proceedings in the instant suit until ten days after the final determination of the Chicago action should be denied. 8 The court below based its decision on Crosley Corporation v. Hazeltine Corporation, 3 Cir., 122 F.2d 925, 930, Crosley Corp. v. Westinghouse Electric & Mfg.",
"Co., 3 Cir., 130 F.2d 474, 475, and Triangle Conduit & Cable Co., Inc. v. National Electric Products Corporation, 3 Cir., 125 F.2d 1008, 1009, all decided by this court. Judge Rodney concluded properly that the same subject matter was before the Illinois court and the Delaware court but went on to hold in effect that because on March 9, 1950, when the suit at bar was filed, Kerotest had not been made a party in the Chicago suit, the rule of the Hazeltine, Westinghouse and Electric Products cases required a stay of the proceedings in Illinois while the Delaware litigation was prosecuted. Judge Rodney pointed out also that an amendment of the kind effected by C-O-Two as of March 24, 1950, whereby Kerotest was made a party to the Chicago litigation ' * * * does not relate back in time to the filing of the original suit but is akin to the institution of a new action against the new parties. '3 9 We cannot agree with the conclusions reached. To the end that our position may be made plain we state again that the parties to the action at bar are Kerotest and C-O-Two; that the parties to the Chicago suit are C-O-Two and Acme and Kerotest, but that Kerotest did not become a party to the Chicago action until as of March 24, 1950, whereas the instant suit was brought on March 9, 1950.",
"We do not think that the rule of the cited decisions requires the order made by the court below. Our reasons follow. 10 In Crosley v. Hazeltine, after litigation in which Hazeltine had sued Crosley in Ohio alleging infringement of two out of twenty-two possibly pertinent patents, Crosley brought a declaratory judgment suit against Hazeltine in the Delaware District Court to determine the validity of the remaining twenty patents. 38 F.Supp. 38. Shortly thereafter Hazeltine filed nine suits in the District of Ohio alleging that Crosley had infringed fifteen of the twenty patents involved in the declaratory judgment suit. We held that the Delaware District Court should enjoin the Ohio suits. Two parties only were involved and it will be seen that the entire subject matter of the litigation was before the Delaware court prior to the filing of the Ohio suit to test the validity of the fifteen patents. The differences between the circumstances of Crosley v. Hazeltine and those at bar seem obvious. 11 In Crosley v. Westinghouse, Crosley filed a suit for a declaratory judgment against Westinghouse in the District Court for the Western District of Pennsylvania to have sixteen patents, which Westinghouse asserted Crosley had infringed, declared invalid and not infringed. 43 F.Supp. 690.",
"In an obvious race to the court house, one day later Westinghouse filed three suits against Crosley in an Ohio District Court, charging infringement by Crosley of the sixteen patents. We held that the Pennsylvania court should enjoin the prosecution of these infringement suits in Ohio. Again only two parties were involved and it will be seen that the entire subject matter of the litigation was before the Pennsylvania District Court prior to the time the suits were filed in Ohio. 12 It is primarily on the intervening case of Triangle Conduit & Cable Co. v. National that Kerotest relies. In this case, early in 1941, Triangle sued National in the District of Delaware seeking a declaratory judgment to the effect that eleven patents owned by National were invalid. Eighteen days later National filed suit in the Eastern District of Michigan against Triangle and Sears, Roebuck & Company, by which it sought judgment that Triangle had infringed by manufacturing, selling and using articles in violation of all the patents and that Sears, Roebuck had infringed by reselling articles manufactured in violation of six of the seven patents. We held that the Delaware District Court, having first obtained jurisdiction of the entire controversy, should proceed to adjudicate the rights of Triangle and National. 13 Again it will be observed that there are substantial differences between the facts of the Triangle case and those of the case at bar.",
"In the Triangle case the Delaware litigation for a declaratory judgment was the first action and embraced all the patents which were or became the subject matter of any suit. The two principal antagonists were in the Delaware theatre when the declaratory judgment suit was filed. Only the retailer, Sears, was outside the Delaware arena. Obviously, National's attempt to transfer the struggle to Michigan for no other purpose than to enable National to compel Sears to take part in it could not meet with success. In the instant case the suit brought by C-O-Two against Acme in Illinois long antedated the declaratory judgment suit in Delaware brought by Kerotest, D.C., 92 F.Supp. 943.",
"The Chicago suit appears to have been brought in good faith and every patent involved in the Delaware litigation was before the Chicago court. Kerotest could have entered the Chicago litigation had it seen fit to do so. Indeed C-O-Two subsequently compelled its entry. Kerotest, while displaying an apparent reluctance to enter the Illinois arena, did not harbor such an attitude toward the Delaware forum. In Triangle the declaratory judgment suit came first. 14 In the instant case the whole of the war and all the parties to it are in the Chicago theatre and there only can it be fought to a finish as the litigations are now cast.",
"On the other hand if the battle is waged in the Delaware arena there is a strong probability that the Chicago suit nonetheless would have to be proceeded with for Acme is not and cannot be made a party to the Delaware litigation. The Chicago suit when adjudicated will bind all the parties in both cases. Why, under the circumstances, should there be two litigations where one will suffice? We can find no adequate reason. We assume, of course, that there will be prompt action in the Chicago theatre. 15 Neither Crosley nor Westinghouse nor Triangle was intended to lay down a rule of thumb. The rule as we conceived it was designed as an aid to the parties and to effect the ends of justice. As was said in Hammett v. Warner Brothers Pictures, 2 Cir., 176 F.2d 145, 150, it 'has been recognized that this rule is not to be applied in a mechanical way regardless of other considerations.' As we pointed out in the Westinghouse case the real question is not whether 'another suit' has been 'previously' or 'subsequently' begun between the parties but whether the relief sought can be 'more expeditiously and effectively afforded (in the other suit) than in the declaratory proceeding.'",
"(130 F.2d 475.) We adhere to that view. We think that relief can be more expeditiously afforded in the Chicago proceeding than in the Delaware declaratory judgment suit. Compare Hammett v. Warner Brothers Pictures, 2 Cir., 176 F.2d 145, 148-151, a copy-right case which is closer perhaps on its facts to the case at bar than any other reported decision. Therein the Court of Appeals for the Second Circuit, citing the Crosley Case, decided the issue as we do here. Cf. Cresta Blanca Wine Co., Inc. v. Eastern Wine Corporation, 2 Cir., 143 F.2d 1012, and Speed Products Co. v. Tinnerman Products, 83 U.S.App.D.C. 243, 171 F.2d 727. 16 The order of the court below will be reversed and the cause remanded with the direction to enter an order staying further proceedings in this action until ten days after the final determination of the Chicago suit. If, however, the prosecution of the Chicago suit be unreasonably delayed, this court will entertain an application for a modification of the order. 17 MARIS, Circuit Judge, dissenting.",
"18 I am unable to agree that Judge Rodney was guilty of an abuse of discretion in this case. On the contrary I think that he soundly exercised the discretion confided in him by the rule which this court, sitting in banc, laid down in Triangle Conduit & Cable Co. v. National Elec. P. Corp. 3 Cir., 1942, 125 F.2d 1008, certiorari denied 316 U.S. 676, 62 S.Ct. 1046, 86 L.Ed. 1750. It is true that the majority do not say that Judge Rodney abused his discretion. Instead they ignore his careful weighing of the factors involved,1 intimate that he merely applied a 'rule of thumb,' and themselves proceed to determine the matter as though they were the district court. Moreover, while refusing to apply the rule of the Triangle case the majority do not expressly overrule that case but rather seek to distinguish it on its facts from the present case.",
"I concede that there is a factual distinction in that in the Triangle case the infringement suit by National against Triangle and its customer, Sears, Roebuck & Company, was begun after the declaratory judgment suit had been brought by Triangle against National, whereas here the infringement suit by C-O-Two against Kerotest's customer, Acme Equipment Company, Inc., was begun before the declaratory judgment suit against C-O-Two was instituted by Kerotest. 19 In my opinion, however, the distinction made by the majority is without legal significance. To my mind the significant point is that Kerotest itself was not made a defendant in the infringement suit until after it had brought the declaratory judgment suit. In this respect the case is identical with the Triangle case. The two cases are also identical in that the litigation between the parties to the declaratory judgment suit was first begun by the institution of that suit while, if the controversies between the patent owner the infringing manufacturer and its customer were to be litigated in a single lawsuit, it could only be done in the infringement suit.",
"In the Triangle case we held nonetheless that the declaratory judgment suit, in which the rights of patent owner against the infringing customer could not be litigated, must take precedence over the infringement suit so far as the litigation between the patent owner and the infringing manufacturer was concerned. 20 The rule which this court laid down in the Triangle case, as well as in Crosley Corporation v. Hazeltine Corporation, 3 Cir., 1941, 122 F.2d 925, certiorari denied 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211, and Crosley Corporation v. Westinghouse Elec.",
"& Mfg. Co., 3 Cir., 1942, 130 F.2d 474, certiorari denied 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546, has had acceptance in at least five other circuits.2 I think it is particularly significant that in the Second Circuit in the case of Cresta Blanca Wine Co. v. Eastern Wine Corporation, 1944, 143 F.2d 1012, and in the case of Speed Products Co. v. Tinnerman Products, 1948, 83 U.S.App.D.C. 243, 171 F.2d 727, the rule of the Triangle case has been applied to facts indistinguishable in principle from those in the case now before us. The majority ask us to compare those cases with their decision here and I join in that request. For when such a comparison is made it will become plain that this court is today rejecting an application of the rule of the Triangle case which two other courts have heretofore made in reliance upon that decision by us.",
"21 In the Cresta Blanca Wine case Cresta had sued Eastern in the Southern District of New York for a declaratory judgment of noninfringement of a trade-mark. Thereafter Eastern sued Schenley and Cresta in the District of Delaware for infringement of the same mark. Schenley then applied for leave to intervene as a plaintiff in the suit in the Southern District of New York and both Cresta and Schenley asked that court to stay further proceedings in Delaware. The district court denied the intervention and the stay. The Court of Appeals reversed as to Cresta holding that the suit by Eastern in Delaware should be stayed as against Cresta since the suit in New York was prior as to those two parties. As to Schenley, however, the Court of Appeals, affirmed, saying, 143 F.2d at page 1014: 22 'It can hardly be said that intervention, had it been granted, would have related back to the filing of Cresta's complaint.",
"Therefore Schenley's proposed intervention against Eastern would have been the later action between them and the very principle Schenley invokes would require staying the New York action rather than the Delaware suit.' 23 In the Speed Products case, the significant facts were these: Speed had brought suit against the Commissioner of Patents in the District of Columbia for the registration of a trade-mark. Shortly thereafter Speed sued Tinnerman in the Southern District of New York, seeking registration of the same mark and a declaratory judgment of noninfringement of Tinnerman's trade-marks.",
"Later Tinnerman was granted permission to intervene in the suit in the District of Columbia and it filed an answer and counterclaim for infringement of its trade-marks. Thereafter Speed moved in the District of Columbia for an order suspending the suit there until the case in the Southern District of New York had been tried and Tinnerman moved for an order enjoining Speed from proceeding with the New York action until the suit in the District of Columbia had been tried. The District Court for the District of Columbia denied Speed's motion and granted that of Tinnerman but this action was reversed by the Court of Appeals for the District of Columbia, the court saying, 171 F.2d at page 729: 24 'The second question is whether or not the District of Columbia court had power to enjoin Speed Products from proceeding with the New York action.",
"The law on this question is well settled. Where two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first, and an injunction to accomplish this is proper. This is recognized by three cases: Triangle Conduit & Cable Co. v. National Elec. P. Corp., 3 Cir., 1942, 125 F.2d 1008, certiorari denied 1942, 316 U.S. 676, 62 S.Ct. 1046, 86 L.Ed. 1750; Corsley Corporation v. Hazeltine Corporation, 3 Cir., 1941, 122 F.2d 925; Cresta Blanca Wine Co. v. Eastern Wine Corporation, 2 Cir., 1944, 143 F.2d 1012.' 25 The majority place much reliance on a later case in the Second Circuit, Hammett v. Warner Brothers Pictures, 1949, 176 F.2d 145, 148. In that case, however, the district court after weighing all the factors decided in the exercise of its discretion that the declaratory suit should be dismissed. The Court of Appeals in affirming took occasion to point out that the question 'was addressed to the sound discretion of the district court.' The court found no abuse of that discretion and rested its affirmance as well on the fact that disposition of the action for which priority was sought 'would settle only a part of the controversy between the parties to it.'",
"Under these circumstances it was clearly within the discretion of the district court not to apply the rule of the Triangle case. In the present case, however, C-O-Two's entire cause of action against Kerotest may be heard and determined in the declaratory judgment proceeding presently pending in the District of Delaware. I cannot join in a judgment which holds by necessary inference that Judge Rodney abused his discretion in applying the rule of the Triangle case to this situation. 26 Judge KALODNER joins in this dissent. 1 In the complaint in the instant case Kerotest refers to another earlier action brought against The General Detroit Corporation by C-O-Two. This suit was filed in August, 1949, and settled in January, 1950, by a consent decree. We will make no further reference to it since it is irrelevant to the issues presented by the instant appeal 2 No opinion reported for publication 3 See the authorities contained in note 3 cited to the text, 92 F.Supp.at page 947 1 In his opinion, D.C., 92 F.Supp. 943, 947, Judge Rodney said: 'The question nevertheless arises as to whether this is one of those exceptional cases in which the taking of jurisdiction should be declined in favor of the later suit on the ground that the questions in controversy between the parties can be better settled and the relief sought be more expeditiously and effectively afforded in the Chicago action.",
"The parties with which we are solely concerned are Kerotest and C-O-Two. Nothing is apparent to indicate that the Chicago action will settle the controversy between these parties better or more effectively. A date for the trial of the Chicago action is said to have been set for September, 1950, and this may give some apparent basis for the contention that the litigation there will be concluded more expeditiously. Whether the matter can be heard at that time must be problematical. There is nothing to indicate that with the full cooperation of the defendant, who allegedly is seeking an early trial, the trial in this jurisdiction may not be had expeditiously and some slight delay would seem too slim a basis for departure from recognized principles.' 2 Dwinell-wright Co. v. National Fruit Products Co., 1 Cir., 1942, 129 F.2d 848, 852, 853, Carbide & Carbon C. Corp. v. United States I.",
"Chemicals, 4 Cir., 1944, 140 F.2d 47, 49; Cresta Blanca Wine Co. v. Eastern Wine Corporation, 2 Cir., 1944, 143 F.2d 1012, 1014; Speed Products Co. v. Tinnerman Products, 1948, 83 U.S.App.D.C. 243, 171 F.2d 727, 729; Chicago Pneumatic Tool Co. v. Hughes Tool Co., 10 Cir., 1950, 180 F.2d 97, 101, certiorari denied 340 U.S. 816, 71 S.Ct. 46"
]
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Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The drawing corrections filed on 07/01/2021 are accepted by Examiner. Claims 1-11,13-14,16-19,21-22 and 24 are allowed The following is an examiner’s statement of reasons for allowance: . The prior art does not disclose a measuring system for measuring signals with multiple measurement probes having a combination of a measurement, data receiver comprising a first, data interface, one or more analog measurement channels that acquire first measurement values and a processor that determines a number of characteristic values for the first measurement values, and a multi probe measurement device comprising at least two probe interfaces that each couple the multi probe measurement device wi th at least one of the measurement probes, a second data interface that couples the multi probe measurement device to the measurement data receiver, and a processing unit coupled to the at least, two probe interfaces that records second measurement values via the at least two probe interfaces from the measurement probes, wherein the processing unit is further coupled to the data interface and provides the recorded second measurement values to the measurement data receiver, wherein the first data interface of the measurement data receiver is coupled to the second data interface of the multi probe measurement device, and wherein the second data interface of the multi probe,measurement device and the first data interface of the measurement data receiver are coupled to each other by a digital data channel, wherein the measurement data receiver comprises a measurement memory that is coupled to the analog measurement channels and the processor, wherein the first measurement values and/or the respective characteristic values are Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kaplan (PG-Pub #2013/0006570) disclose unbound oscilloscope probe system using RF and /or optical test point links-provides operational access and mobility. Johnson et al (pat#9,459,290) disclose Oscilloscope system and method for simultaneously displaying zoomed-in and zoomed-out waveforms. Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINH P NGUYEN whose telephone number is (571)272-1964. The examiner can normally be reached on M-F 6:10am-3:40pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, HUY PHAN can be reached on 571-272-7924. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/VINH P NGUYEN/Primary Examiner, Art Unit 2867 | 2021-07-17T14:49:36 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The drawing corrections filed on 07/01/2021 are accepted by Examiner. Claims 1-11,13-14,16-19,21-22 and 24 are allowed The following is an examiner’s statement of reasons for allowance: . The prior art does not disclose a measuring system for measuring signals with multiple measurement probes having a combination of a measurement, data receiver comprising a first, data interface, one or more analog measurement channels that acquire first measurement values and a processor that determines a number of characteristic values for the first measurement values, and a multi probe measurement device comprising at least two probe interfaces that each couple the multi probe measurement device wi th at least one of the measurement probes, a second data interface that couples the multi probe measurement device to the measurement data receiver, and a processing unit coupled to the at least, two probe interfaces that records second measurement values via the at least two probe interfaces from the measurement probes, wherein the processing unit is further coupled to the data interface and provides the recorded second measurement values to the measurement data receiver, wherein the first data interface of the measurement data receiver is coupled to the second data interface of the multi probe measurement device, and wherein the second data interface of the multi probe,measurement device and the first data interface of the measurement data receiver are coupled to each other by a digital data channel, wherein the measurement data receiver comprises a measurement memory that is coupled to the analog measurement channels and the processor, wherein the first measurement values and/or the respective characteristic values are Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee.",
"Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kaplan (PG-Pub #2013/0006570) disclose unbound oscilloscope probe system using RF and /or optical test point links-provides operational access and mobility. Johnson et al (pat#9,459,290) disclose Oscilloscope system and method for simultaneously displaying zoomed-in and zoomed-out waveforms. Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINH P NGUYEN whose telephone number is (571)272-1964. The examiner can normally be reached on M-F 6:10am-3:40pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, HUY PHAN can be reached on 571-272-7924. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /VINH P NGUYEN/Primary Examiner, Art Unit 2867"
]
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The ruling of the court on the following question asked the witness G. R. Berryman hy counsel for the defendant on cross-examination : ’ “As a result of the settling of the foundations, Mr.'Berryman, is- it not a fact that the Federal government, or the government of the United States, has ordered additional work or changes upon the foundations as originally planned V’ Charlton, Judge, delivered the following opinion: On December 10, 1910, a contract was entered into between the defendant company, as general contractor, and the United States of America, for the construction of a United States post-office and courthouse in the city of San Juan, Porto Pico. Subsequently, and upon December 16, 1910, a contract was entered into between the plaintiff’s assignor, as subcontractor, and the defendant company and James Knox Taylor, who, it is admitted, was at that date supervising architect of the Treasury of the United States, for the construction of certain portions of the work covered by the general contract. Various delays thereafter occurred in the construction of said building, and it is contended by each of the parties hereto that those delays were caused, in part or in whole, by the default and failure of the other, up to a period ending on .the 9th day of March, 1912, upon which date the general contractor, the defendant here, was notified by the supervising inspector of said building, representing the government of the United States, to cease work upon said building, for the reason that it had been ascertained that certain defects in the foundation' of the building existed under plans which had been attached to the original contract, which it was then desired to remedy and change. Thereupon the defendant, as general contractor, notified the plaintiff, as subcontractor, to cease the performance of any work upon said building. It is also admitted that plaintiff company had knowledge of the existence of a contract between the defendant and the United St.ates of America, covering the building in question, which was the subject of its subcontract; and the presumption of law *137therefore arises that it had knowledge of the provisions of the general contract, among which was a provision beginning npon line 28 of page 6 of the general contract, as follows (the same, while not having been formally introduced, is considered to be introduced for the purposes of this motion) :— “It is further covenanted and agreed that the United States shall have the right of suspending the whole or any part of the work herein contracted to be done, whenever in the opinion of the supervising architect it may be necessary for the purpose or advantage of the work. .. . Thereafter, and upon May 22, 1912, and during the suspension of work upon said building under the foregoing circumstances, the plaintiff company notified the defendant in writing that, by reason of such delay, and of other breaches alleged to have been committed by the defendant company, it elected to terminate its subcontract; and thereafter this action was brought by the plaintiff against the defendant for the purpose of recovering for amounts expended by it, together with damages which it alleged had accrued to it by reason of the failures and unwarrantable delays and interference of the defendant, and for sums alleged to be due it for work already performed upon said building and accepted. It was provided in § 11 of the subcontract that the general contractors should provide all labor and materials not included in the subcontract, in such manner as not to delay the material progress of the work, and that in the event of their failure so to do, they should pay reasonable damages in money to the subcontractor for losses arising therefrom. Similarly, it was provided that the subcontractor would reimburse the general contractor for any loss occasioned to it by delay of the subcontractor. *138In § 7 of the said, contract, provision was made for extension 'of time of performance in case of failure to complete by reason of delays caused without the neglect, delay, or default of the subcontractor, or by the act of God. The uncontradieted evidence shows that, by reason of the election of the government to change the footings of the foundation, it would have been impossible for the subcontractor to do any of the work contemplated by the said contract between the 9th day of March, 1912, and the 1st day of November, 1912; and in the trial of the cause; upon the putting by counsel for the defendant of a question to plaintiff’s witness, Mr. Berryman, the Bederal inspector of the building, in relation to the changes and alterations in the footings of the foundation, counsel for the plaintiff objected on the ground that it was immaterial, as the subcontract did not obligate the plaintiff company to do any work upon the footings of the foundation, and that, therefore, their condition formed no part of the subject-matter of the contract, or of the complaint herein. • After argument of counsel and careful consideration of all the subject-matter, in view of the fact that the plaintiff company must be held to have had knowledge, before the execution of its subcontract, of all the provisions of the general contract, which contained, among other things, the provision for the option in the government to make such alterations in the course'of construction as it should deem advisable, and in view of the fact that the delay in construction from March 9, 1912, to November 1, 1912, was wholly involuntary on the part of the general contractor by reason of the provision of option heretofore recited, the objection, in so far as it concerns solely questions as to the exercise of said option on the part of the government, is over*139ruled, and the question is permitted to be answered, and an exception noted. | 07-20-2022 | [
"The ruling of the court on the following question asked the witness G. R. Berryman hy counsel for the defendant on cross-examination : ’ “As a result of the settling of the foundations, Mr.'Berryman, is- it not a fact that the Federal government, or the government of the United States, has ordered additional work or changes upon the foundations as originally planned V’ Charlton, Judge, delivered the following opinion: On December 10, 1910, a contract was entered into between the defendant company, as general contractor, and the United States of America, for the construction of a United States post-office and courthouse in the city of San Juan, Porto Pico. Subsequently, and upon December 16, 1910, a contract was entered into between the plaintiff’s assignor, as subcontractor, and the defendant company and James Knox Taylor, who, it is admitted, was at that date supervising architect of the Treasury of the United States, for the construction of certain portions of the work covered by the general contract. Various delays thereafter occurred in the construction of said building, and it is contended by each of the parties hereto that those delays were caused, in part or in whole, by the default and failure of the other, up to a period ending on .the 9th day of March, 1912, upon which date the general contractor, the defendant here, was notified by the supervising inspector of said building, representing the government of the United States, to cease work upon said building, for the reason that it had been ascertained that certain defects in the foundation' of the building existed under plans which had been attached to the original contract, which it was then desired to remedy and change.",
"Thereupon the defendant, as general contractor, notified the plaintiff, as subcontractor, to cease the performance of any work upon said building. It is also admitted that plaintiff company had knowledge of the existence of a contract between the defendant and the United St.ates of America, covering the building in question, which was the subject of its subcontract; and the presumption of law *137therefore arises that it had knowledge of the provisions of the general contract, among which was a provision beginning npon line 28 of page 6 of the general contract, as follows (the same, while not having been formally introduced, is considered to be introduced for the purposes of this motion) :— “It is further covenanted and agreed that the United States shall have the right of suspending the whole or any part of the work herein contracted to be done, whenever in the opinion of the supervising architect it may be necessary for the purpose or advantage of the work. .. . Thereafter, and upon May 22, 1912, and during the suspension of work upon said building under the foregoing circumstances, the plaintiff company notified the defendant in writing that, by reason of such delay, and of other breaches alleged to have been committed by the defendant company, it elected to terminate its subcontract; and thereafter this action was brought by the plaintiff against the defendant for the purpose of recovering for amounts expended by it, together with damages which it alleged had accrued to it by reason of the failures and unwarrantable delays and interference of the defendant, and for sums alleged to be due it for work already performed upon said building and accepted.",
"It was provided in § 11 of the subcontract that the general contractors should provide all labor and materials not included in the subcontract, in such manner as not to delay the material progress of the work, and that in the event of their failure so to do, they should pay reasonable damages in money to the subcontractor for losses arising therefrom. Similarly, it was provided that the subcontractor would reimburse the general contractor for any loss occasioned to it by delay of the subcontractor. *138In § 7 of the said, contract, provision was made for extension 'of time of performance in case of failure to complete by reason of delays caused without the neglect, delay, or default of the subcontractor, or by the act of God. The uncontradieted evidence shows that, by reason of the election of the government to change the footings of the foundation, it would have been impossible for the subcontractor to do any of the work contemplated by the said contract between the 9th day of March, 1912, and the 1st day of November, 1912; and in the trial of the cause; upon the putting by counsel for the defendant of a question to plaintiff’s witness, Mr. Berryman, the Bederal inspector of the building, in relation to the changes and alterations in the footings of the foundation, counsel for the plaintiff objected on the ground that it was immaterial, as the subcontract did not obligate the plaintiff company to do any work upon the footings of the foundation, and that, therefore, their condition formed no part of the subject-matter of the contract, or of the complaint herein.",
"• After argument of counsel and careful consideration of all the subject-matter, in view of the fact that the plaintiff company must be held to have had knowledge, before the execution of its subcontract, of all the provisions of the general contract, which contained, among other things, the provision for the option in the government to make such alterations in the course'of construction as it should deem advisable, and in view of the fact that the delay in construction from March 9, 1912, to November 1, 1912, was wholly involuntary on the part of the general contractor by reason of the provision of option heretofore recited, the objection, in so far as it concerns solely questions as to the exercise of said option on the part of the government, is over*139ruled, and the question is permitted to be answered, and an exception noted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6683966/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
50 Ill.2d 342 (1972) 278 N.E.2d 789 ZIMMERLY CONSTRUCTION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles G. Montgomery, Appellee.) No. 44506. Supreme Court of Illinois. Opinion filed January 28, 1972. KEEFE and DE PAULI, of East St. Louis, for appellant. ROSCOE D. CUNNINGHAM of GOSNELL, BENECKI & QUINDRY, LTD., of Lawrenceville, for appellee. Judgments reversed. *343 MR. JUSTICE WARD delivered the opinion of the court: The Zimmerly Construction Company has appealed from a judgment of the circuit court of Lawrence County, which inter alia affirmed an award of the Industrial Commission in favor of Charles Montgomery, an employee of the appellant, for total and permanent disability. Montgomery suffered a back injury on June 10, 1964, when he fell from a truck in the course of his employment and he filed an application for adjustment of his claim before the Industrial Commission. An arbitrator awarded him $52 per week for 42 weeks of temporary total disability and $52 per week for 60 weeks for a fracture of one or more vertebral bodies. When the case was on review before the Industrial Commission, the employer first learned that the employee had been hospitalized by his own physician and that a laminectomy and a spinal fusion had been performed. The employer had provided medical services for Montgomery and he had not notified the employer of the surgery nor had he requested additional medical care from the employer. After the taking of additional testimony and argument the Commission on April 27, 1967, increased the temporary disability compensation from 42 weeks to 64 weeks. The Commission found, too, that the employee was entitled to compensation based on a 25% permanent loss of the use of his right leg and on a 25% permanent loss of the use of his left leg. It affirmed that he was entitled to $52 per week for 60 weeks for a fracture of one or more vertebral bodies. The employee's claim for reimbursement for the expenses of the laminectomy and spinal fusion was denied. The circuit court of Lawrence County affirmed the decision of the Commission in December 1967. No appeal was taken from this affirmance. Claiming that his disability had changed subsequent to the award by the Commission, the employee, on March 29, 1968, filed a petition under section 19(h) of the Workmen's Compensation Act for *344 review of the award. At the hearing the Commission decided that the claimant had failed to prove a change of condition since April 27, 1967, the date of the Commission's original award. On certiorari a judge of the circuit court of Lawrence County held that the decision of the Commission was contrary to the manifest weight of the evidence. (The judge was not the one who had reviewed the first award of the Commission.) The circuit court ordered the Commission to enter an award for total and permanent disability and also ordered the Commission to award compensation for the expenses the employee incurred for the laminectomy and spinal fusion. The Commission complied with the court's directions and the circuit court affirmed. This appeal followed. The employer correctly contends that the circuit court erred in directing the Commission to award the claimant the expenses of the laminectomy and spinal fusion. The claim had been considered by the Commission and denied in the original proceeding prior to Commission's decision on April 27, 1967. The denial was affirmed by the circuit court. A petition for review of an award under section 19(h) of the Workmen's Compensation Act (Ill. Rev. Stat. 1967, ch. 48, sec. 138) is not a proceeding which will allow the reversal of a decision of the Industrial Commission or of a judgment of the circuit court. (Weymer v. Industrial Com., 404 Ill. 271, 274, 275; Belleville Brick and Tile Co. v. Industrial Com., 305 Ill. 577, 579.) The purpose of a 19(h) proceeding is to determine whether a disability has changed subsequent to an award or agreed settlement. The original award or settlement is not to be brought in question, for it must be considered final. The evidence in the original hearing will be considered along with the new evidence only to determine whether the condition existing at the time of the award has changed. (Weymer v. Industrial Com., 404 Ill. 271, 274, 275; Belleville Brick and Tile v. Industrial Com., 305 Ill. 577, 579.) The denial *345 here of the claim for the surgical expenses on the first review by the circuit court made the question res judicata. It could not be properly maintained thereafter. Weymer v. Industrial Com., 404 Ill. 271. We consider that the employer is also correct in his argument that the circuit court erred when it reversed the Commission's decision that it had not been proved that the employee's disability had increased and directed the Commission to enter an award for total and permanent disability. The evidence offered by the employer and the employee before the Commission during the review was conflicting. The employee testified to increased pain in the legs, neck and left arm and inability to work. The evidence of his physician included the statement that he had developed greater limitation in the motion of his neck and hypesthesia or numbness in the left arm. His opinion was that the claimant was totally, though not necessarily permanently disabled. He had not seen the patient between September 1966, which was prior to the first award of the Commission, and May 1968, which was after the employee had filed for a review. It appears that the employee had not consulted any other physician from the time of the first award until after his petition for review had been filed, other than to secure medication for pain. The employer's doctor who examined the employee found that there had not been "much" change in the condition of the employee. His view was that his neck motion may be more restricted, but he based this on the employee's complaints. He said he found nothing objectively to support it. The employer's medical witness was of the opinion that the patient did not require additional treatment and that he was able to and should return to work. In a section 19(h) proceeding the question is whether "the disability of the employee has subsequently recurred, increased, diminished or ended." The change in condition *346 must be a material one. (De Bartolo v. Industrial Com., 375 Ill. 103.) It is our firm rule that it is the function of the Industrial Commission to resolve factual questions and that a court will not set aside a finding of the Commission unless it is contrary to the manifest weight of the evidence. This rule, of course, applies to medical questions. (Holiday Inns of America v. Industrial Com., 43 Ill.2d 88; Inland Steel Co. v. Industrial Com., 18 Ill.2d 70.) Where the evidence is conflicting or of a nature which permits the reasonable drawing of differing inferences a court will not set aside an award solely because it might have made a different finding on the evidence or drawn inferences other than those reasonably drawn by the Commission. Gubser v. Industrial Com., 42 Ill.2d 559, 562. Applying these standards we judge that the circuit court intruded upon the Commission's province of determining factual issues and erred in setting aside the award of the Commission and directing the Commission to enter an award in favor of the employee for total and permanent disability. We do not judge, considering the record, that the Commission's decision was contrary to the manifest weight of the evidence. The judgment of the circuit court remanding the cause to the Commission is reversed and the subsequent judgment of the circuit court confirming the directed award by the Commission is reversed. Judgments reversed. | 10-30-2013 | [
"50 Ill.2d 342 (1972) 278 N.E.2d 789 ZIMMERLY CONSTRUCTION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles G. Montgomery, Appellee.) No. 44506. Supreme Court of Illinois. Opinion filed January 28, 1972. KEEFE and DE PAULI, of East St. Louis, for appellant. ROSCOE D. CUNNINGHAM of GOSNELL, BENECKI & QUINDRY, LTD., of Lawrenceville, for appellee. Judgments reversed. *343 MR. JUSTICE WARD delivered the opinion of the court: The Zimmerly Construction Company has appealed from a judgment of the circuit court of Lawrence County, which inter alia affirmed an award of the Industrial Commission in favor of Charles Montgomery, an employee of the appellant, for total and permanent disability. Montgomery suffered a back injury on June 10, 1964, when he fell from a truck in the course of his employment and he filed an application for adjustment of his claim before the Industrial Commission.",
"An arbitrator awarded him $52 per week for 42 weeks of temporary total disability and $52 per week for 60 weeks for a fracture of one or more vertebral bodies. When the case was on review before the Industrial Commission, the employer first learned that the employee had been hospitalized by his own physician and that a laminectomy and a spinal fusion had been performed.",
"The employer had provided medical services for Montgomery and he had not notified the employer of the surgery nor had he requested additional medical care from the employer. After the taking of additional testimony and argument the Commission on April 27, 1967, increased the temporary disability compensation from 42 weeks to 64 weeks. The Commission found, too, that the employee was entitled to compensation based on a 25% permanent loss of the use of his right leg and on a 25% permanent loss of the use of his left leg. It affirmed that he was entitled to $52 per week for 60 weeks for a fracture of one or more vertebral bodies. The employee's claim for reimbursement for the expenses of the laminectomy and spinal fusion was denied. The circuit court of Lawrence County affirmed the decision of the Commission in December 1967. No appeal was taken from this affirmance. Claiming that his disability had changed subsequent to the award by the Commission, the employee, on March 29, 1968, filed a petition under section 19(h) of the Workmen's Compensation Act for *344 review of the award.",
"At the hearing the Commission decided that the claimant had failed to prove a change of condition since April 27, 1967, the date of the Commission's original award. On certiorari a judge of the circuit court of Lawrence County held that the decision of the Commission was contrary to the manifest weight of the evidence. (The judge was not the one who had reviewed the first award of the Commission.) The circuit court ordered the Commission to enter an award for total and permanent disability and also ordered the Commission to award compensation for the expenses the employee incurred for the laminectomy and spinal fusion. The Commission complied with the court's directions and the circuit court affirmed.",
"This appeal followed. The employer correctly contends that the circuit court erred in directing the Commission to award the claimant the expenses of the laminectomy and spinal fusion. The claim had been considered by the Commission and denied in the original proceeding prior to Commission's decision on April 27, 1967. The denial was affirmed by the circuit court. A petition for review of an award under section 19(h) of the Workmen's Compensation Act (Ill. Rev. Stat. 1967, ch. 48, sec. 138) is not a proceeding which will allow the reversal of a decision of the Industrial Commission or of a judgment of the circuit court. (Weymer v. Industrial Com., 404 Ill. 271, 274, 275; Belleville Brick and Tile Co. v. Industrial Com., 305 Ill. 577, 579.)",
"The purpose of a 19(h) proceeding is to determine whether a disability has changed subsequent to an award or agreed settlement. The original award or settlement is not to be brought in question, for it must be considered final. The evidence in the original hearing will be considered along with the new evidence only to determine whether the condition existing at the time of the award has changed. (Weymer v. Industrial Com., 404 Ill. 271, 274, 275; Belleville Brick and Tile v. Industrial Com., 305 Ill. 577, 579.) The denial *345 here of the claim for the surgical expenses on the first review by the circuit court made the question res judicata. It could not be properly maintained thereafter. Weymer v. Industrial Com., 404 Ill. 271. We consider that the employer is also correct in his argument that the circuit court erred when it reversed the Commission's decision that it had not been proved that the employee's disability had increased and directed the Commission to enter an award for total and permanent disability. The evidence offered by the employer and the employee before the Commission during the review was conflicting.",
"The employee testified to increased pain in the legs, neck and left arm and inability to work. The evidence of his physician included the statement that he had developed greater limitation in the motion of his neck and hypesthesia or numbness in the left arm. His opinion was that the claimant was totally, though not necessarily permanently disabled. He had not seen the patient between September 1966, which was prior to the first award of the Commission, and May 1968, which was after the employee had filed for a review. It appears that the employee had not consulted any other physician from the time of the first award until after his petition for review had been filed, other than to secure medication for pain. The employer's doctor who examined the employee found that there had not been \"much\" change in the condition of the employee. His view was that his neck motion may be more restricted, but he based this on the employee's complaints.",
"He said he found nothing objectively to support it. The employer's medical witness was of the opinion that the patient did not require additional treatment and that he was able to and should return to work. In a section 19(h) proceeding the question is whether \"the disability of the employee has subsequently recurred, increased, diminished or ended.\" The change in condition *346 must be a material one. (De Bartolo v. Industrial Com., 375 Ill. 103.) It is our firm rule that it is the function of the Industrial Commission to resolve factual questions and that a court will not set aside a finding of the Commission unless it is contrary to the manifest weight of the evidence. This rule, of course, applies to medical questions. (Holiday Inns of America v. Industrial Com., 43 Ill.2d 88; Inland Steel Co. v. Industrial Com., 18 Ill.2d 70.)",
"Where the evidence is conflicting or of a nature which permits the reasonable drawing of differing inferences a court will not set aside an award solely because it might have made a different finding on the evidence or drawn inferences other than those reasonably drawn by the Commission. Gubser v. Industrial Com., 42 Ill.2d 559, 562. Applying these standards we judge that the circuit court intruded upon the Commission's province of determining factual issues and erred in setting aside the award of the Commission and directing the Commission to enter an award in favor of the employee for total and permanent disability. We do not judge, considering the record, that the Commission's decision was contrary to the manifest weight of the evidence. The judgment of the circuit court remanding the cause to the Commission is reversed and the subsequent judgment of the circuit court confirming the directed award by the Commission is reversed. Judgments reversed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2072083/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
On appeal from convictions by a jury on indictments charging him with rape of a child under sixteen years of age (G. L. c. 265, § 22A) and indecent assault and battery on a child under age fourteen (G. L. c. 265, § 13B), the defendant claims error in the exclusion of evidence under G. L. c. 233, § 21B, the so-called “rape-shield” statute; in the refusal to allow impeachment of the victim with a prior inconsistent statement; and in the prosecutor’s closing argument. We see no error and affirm the convictions. 1. The evidence. There was evidence, the victim’s testimony, to show that on many occasions during a five-month period prior to August, 1993, the defendant, the victim’s stepfather, assaulted and raped the victim, who was then thirteen years old. These acts usually took place in the afternoon. The defendant would frequently arrive home from work around noon, and the victim’s mother would return from her employment anywhere between 2:00 and 4:00 p.m. In addition to the victim’s testimony, her brother testified that on one occasion, he saw the defendant straddling the victim who was lying on the couch *908in the living room. The defendant screamed at him to go outside, and the brother left the room. Additionally, the victim’s mother testified that on the date that the victim made her complaint to the police, she (the mother) and the defendant arrived home after an evening out to find three teenage boys asking for the victim. The mother asked the defendant to go and look for her. When the defendant found the victim and brought her home, the mother, who was very angry, spoke with the victim for about fifteen minutes. Thereafter, the victim left the home and went to the police station where she made her complaint. There was also fresh complaint testimony. Testifying on his own behalf, the defendant denied the victim’s allegations and related that she was angry about the discipline imposed upon her because it interfered with her relationships with boys. It was also the defendant’s theory that the victim was engaged in sexual relations with two male teenagers and, therefore, had a motive to lie, that is, fear that her mother would discover that she had been with them. To support this theory, the defendant filed a motion pursuant to G. L. c. 233, § 22B, in which he set out facts to show that the victim, on August 24, 1993, tested positive for chlamydia, a sexually transmitted disease, whereas his 1994 culture and 1995 serology tests were negative. Based upon those test results, the defendant wished to establish the defense that he could not have raped the victim without contracting chlamydia and that the victim’s disease must have been the result of intercourse with one of two, if not both, male teenagers identified in the motion. An evidentiary hearing was held on the motion, and the defendant called his physician to testify. Although the doctor was able to define chlamydia as a sexually transmitted disease and to explain, in general, the meaning of an incubation period, he had never treated a patient for chlamydia. As described by him, “[M]y practice is basically one of treating adult, elderly people, so my experience with sexually transmitted diseases is not very extensive.” Rather, his testimony was based upon his recent reading about the disease, which indicated that someone who had been exposed to the disease and tested positive on August 24, 1993, would have to have been infected two to three weeks earlier. a. Exclusion of the doctor’s testimony. In ruling that the defendant’s doctor could not testify before the jury, the trial judge stated that the doctor’s knowledge about this disease was based entirely upon his readings and that he had insufficient experience in the area of this sexually transmitted disease to give any opinion concerning the incubation period, for what period of time the victim could have transmitted the disease, and the likelihood of transmission during that period. As put by the doctor, “When I reviewed the references that I had, I could not get any specific numbers as to how many people . . . who actually get exposed actually come down with the infection. I’m not sure that that kind of data is available.” Although a diagnosis of chlamydia in the victim and a negative test result for the defendant could have been probative on the issue of sexual abuse, such evidence would have relevance only upon a showing that had the defendant abused the victim during a particular time period, he probably would have become infected with the disease. However, the expert’s testimony offered nothing of probative value on these crucial points. See Commonwealth v. Kirkpatrick, 423 Mass. 436, 447-448, cert, denied, 519 U.S. 1015 (1996). Consequently, we cannot say that the trial *909judge abused his discretion or committed other error of law in excluding the witness’s testimony. See Commonwealth v. United Books, Inc., 389 Mass. 888, 895-896 (1983). b. The victim’s sexual history. The defendant wished to offer evidence of the victim’s relationships with teenage boys to show that she was biased and had a motive to lie, that is, that she was angry with the defendant who had discovered letters that she had written to the boys (which the defendant had destroyed) and that she fabricated the charges against the defendant to hide the existence of her relationships with these boys from her mother. The evidence presented to the jury shows that, notwithstanding the exclusion of evidence of any prior sexual history of the victim, the defendant was allowed to show the victim’s hostility toward the defendant, her rebelliousness, and her conflict with her mother about her boyfriends. Our reading of the transcript leads us to conclude that all that need be said about this argument was set out in Commonwealth v. Elder, 389 Mass. 743, 749-751 (1983). See Commonwealth v. Domaingue, 397 Mass. 693, 700 (1986). c. Prior false accusation of rape. Also excluded by the trial judge was testimony to be presented by two teenage boys that the victim previously had made a false accusation of rape against one of them. Where there are no third-party records to show that the victim even made a false accusation of rape and where her testimony against the defendant was neither inconsistent nor confused, it was not error to exclude this testimony. See Commonwealth v. Bohannon, 376 Mass. 90, 95 (1978); Commonwealth v. Rathburn, 26 Mass. App. Ct. 699, 709-710 (1988). 2. Prior inconsistent statements. We see no error in the trial judge’s ruling that statements made by the victim to a social worker from the Department of Social Services (DSS) and to a health center nurse were not contradictory. On August 24, 1993, the victim told the nurse that she had no prior sexual activity. Previously, she had told the DSS social worker that she had had sexual relations with a teenage boy on August 18, 1993, a date subsequent to that comprehended by the indictments against the defendant. Considering the circumstances of the victim’s statements, we think it apparent that her statement concerning a lack of sexual activity referred to the time before the incidents encompassed by the indictments, whereas her encounter with a teenage boy occurred subsequent to that time period. We see no error in the exclusion. See Commonwealth v. Daye, 393 Mass. 55, 73 n.16 (1984), quoting from Commonwealth v. West, 312 Mass. 438, 440 (1942), noting that a statement is inconsistent when, “taken as a whole, either by what it says or by what it omits to say, [it] affords some indication that the fact was different from the testimony of the witness.” 3. The closing argument. Here the argument is, first, that the prosecutor shifted the burden of proof to the defendant, who testified at trial, by stating that the defendant could not explain the victim’s fear, her failure to disclose, or what “she actually said to you.” Assuming without deciding that the remarks should not have been made, we conclude that the trial judge’s instructions to the jury (at both the beginning of the trial and its conclusion), taken with an appreciation for the jury’s ability to understand that closing arguments are just an opportunity to advance the parties’ conflicting positions and are not evidence, see Commonwealth v. Kozec, 399 Mass. 514, 517 (1987), were sufficient to cure any error in the prosecutor’s statements. The prosecutor did not *910argue that the defendant conformed his testimony to the Commonwealth’s evidence, see Commonwealth v. McCray, 40 Mass. App. Ct. 936, 937 (1996), or that he fabricated his testimony to meet every detail of evidence presented against him. See Commonwealth v. Person, 400 Mass. 136, 139 (1987). The defendant’s second claim, that the prosecutor recalled fresh complaint testimony as if it were substantive evidence, is refuted by the transcript of the argument. Kenneth G. Littman for the defendant. James A. Janda, Special Assistant District Attorney, for the Commonwealth.
Judgments affirmed. | 06-25-2022 | [
"On appeal from convictions by a jury on indictments charging him with rape of a child under sixteen years of age (G. L. c. 265, § 22A) and indecent assault and battery on a child under age fourteen (G. L. c. 265, § 13B), the defendant claims error in the exclusion of evidence under G. L. c. 233, § 21B, the so-called “rape-shield” statute; in the refusal to allow impeachment of the victim with a prior inconsistent statement; and in the prosecutor’s closing argument. We see no error and affirm the convictions. 1. The evidence. There was evidence, the victim’s testimony, to show that on many occasions during a five-month period prior to August, 1993, the defendant, the victim’s stepfather, assaulted and raped the victim, who was then thirteen years old.",
"These acts usually took place in the afternoon. The defendant would frequently arrive home from work around noon, and the victim’s mother would return from her employment anywhere between 2:00 and 4:00 p.m. In addition to the victim’s testimony, her brother testified that on one occasion, he saw the defendant straddling the victim who was lying on the couch *908in the living room. The defendant screamed at him to go outside, and the brother left the room. Additionally, the victim’s mother testified that on the date that the victim made her complaint to the police, she (the mother) and the defendant arrived home after an evening out to find three teenage boys asking for the victim. The mother asked the defendant to go and look for her. When the defendant found the victim and brought her home, the mother, who was very angry, spoke with the victim for about fifteen minutes. Thereafter, the victim left the home and went to the police station where she made her complaint.",
"There was also fresh complaint testimony. Testifying on his own behalf, the defendant denied the victim’s allegations and related that she was angry about the discipline imposed upon her because it interfered with her relationships with boys. It was also the defendant’s theory that the victim was engaged in sexual relations with two male teenagers and, therefore, had a motive to lie, that is, fear that her mother would discover that she had been with them. To support this theory, the defendant filed a motion pursuant to G. L. c. 233, § 22B, in which he set out facts to show that the victim, on August 24, 1993, tested positive for chlamydia, a sexually transmitted disease, whereas his 1994 culture and 1995 serology tests were negative.",
"Based upon those test results, the defendant wished to establish the defense that he could not have raped the victim without contracting chlamydia and that the victim’s disease must have been the result of intercourse with one of two, if not both, male teenagers identified in the motion. An evidentiary hearing was held on the motion, and the defendant called his physician to testify. Although the doctor was able to define chlamydia as a sexually transmitted disease and to explain, in general, the meaning of an incubation period, he had never treated a patient for chlamydia.",
"As described by him, “[M]y practice is basically one of treating adult, elderly people, so my experience with sexually transmitted diseases is not very extensive.” Rather, his testimony was based upon his recent reading about the disease, which indicated that someone who had been exposed to the disease and tested positive on August 24, 1993, would have to have been infected two to three weeks earlier. a. Exclusion of the doctor’s testimony. In ruling that the defendant’s doctor could not testify before the jury, the trial judge stated that the doctor’s knowledge about this disease was based entirely upon his readings and that he had insufficient experience in the area of this sexually transmitted disease to give any opinion concerning the incubation period, for what period of time the victim could have transmitted the disease, and the likelihood of transmission during that period.",
"As put by the doctor, “When I reviewed the references that I had, I could not get any specific numbers as to how many people . . . who actually get exposed actually come down with the infection. I’m not sure that that kind of data is available.” Although a diagnosis of chlamydia in the victim and a negative test result for the defendant could have been probative on the issue of sexual abuse, such evidence would have relevance only upon a showing that had the defendant abused the victim during a particular time period, he probably would have become infected with the disease. However, the expert’s testimony offered nothing of probative value on these crucial points. See Commonwealth v. Kirkpatrick, 423 Mass.",
"436, 447-448, cert, denied, 519 U.S. 1015 (1996). Consequently, we cannot say that the trial *909judge abused his discretion or committed other error of law in excluding the witness’s testimony. See Commonwealth v. United Books, Inc., 389 Mass. 888, 895-896 (1983). b. The victim’s sexual history. The defendant wished to offer evidence of the victim’s relationships with teenage boys to show that she was biased and had a motive to lie, that is, that she was angry with the defendant who had discovered letters that she had written to the boys (which the defendant had destroyed) and that she fabricated the charges against the defendant to hide the existence of her relationships with these boys from her mother. The evidence presented to the jury shows that, notwithstanding the exclusion of evidence of any prior sexual history of the victim, the defendant was allowed to show the victim’s hostility toward the defendant, her rebelliousness, and her conflict with her mother about her boyfriends. Our reading of the transcript leads us to conclude that all that need be said about this argument was set out in Commonwealth v. Elder, 389 Mass. 743, 749-751 (1983).",
"See Commonwealth v. Domaingue, 397 Mass. 693, 700 (1986). c. Prior false accusation of rape. Also excluded by the trial judge was testimony to be presented by two teenage boys that the victim previously had made a false accusation of rape against one of them. Where there are no third-party records to show that the victim even made a false accusation of rape and where her testimony against the defendant was neither inconsistent nor confused, it was not error to exclude this testimony. See Commonwealth v. Bohannon, 376 Mass. 90, 95 (1978); Commonwealth v. Rathburn, 26 Mass. App. Ct. 699, 709-710 (1988).",
"2. Prior inconsistent statements. We see no error in the trial judge’s ruling that statements made by the victim to a social worker from the Department of Social Services (DSS) and to a health center nurse were not contradictory. On August 24, 1993, the victim told the nurse that she had no prior sexual activity. Previously, she had told the DSS social worker that she had had sexual relations with a teenage boy on August 18, 1993, a date subsequent to that comprehended by the indictments against the defendant. Considering the circumstances of the victim’s statements, we think it apparent that her statement concerning a lack of sexual activity referred to the time before the incidents encompassed by the indictments, whereas her encounter with a teenage boy occurred subsequent to that time period. We see no error in the exclusion. See Commonwealth v. Daye, 393 Mass. 55, 73 n.16 (1984), quoting from Commonwealth v. West, 312 Mass. 438, 440 (1942), noting that a statement is inconsistent when, “taken as a whole, either by what it says or by what it omits to say, [it] affords some indication that the fact was different from the testimony of the witness.” 3.",
"The closing argument. Here the argument is, first, that the prosecutor shifted the burden of proof to the defendant, who testified at trial, by stating that the defendant could not explain the victim’s fear, her failure to disclose, or what “she actually said to you.” Assuming without deciding that the remarks should not have been made, we conclude that the trial judge’s instructions to the jury (at both the beginning of the trial and its conclusion), taken with an appreciation for the jury’s ability to understand that closing arguments are just an opportunity to advance the parties’ conflicting positions and are not evidence, see Commonwealth v. Kozec, 399 Mass. 514, 517 (1987), were sufficient to cure any error in the prosecutor’s statements.",
"The prosecutor did not *910argue that the defendant conformed his testimony to the Commonwealth’s evidence, see Commonwealth v. McCray, 40 Mass. App. Ct. 936, 937 (1996), or that he fabricated his testimony to meet every detail of evidence presented against him. See Commonwealth v. Person, 400 Mass. 136, 139 (1987). The defendant’s second claim, that the prosecutor recalled fresh complaint testimony as if it were substantive evidence, is refuted by the transcript of the argument. Kenneth G. Littman for the defendant. James A. Janda, Special Assistant District Attorney, for the Commonwealth. Judgments affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6460465/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: Commission Regulation (EEC) No 2000/86 of 27 June 1986 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten Type: Regulation Subject Matter: Europe; trade policy; processed agricultural produce Date Published: nan
No L 171 /36 Official Journal of the European Communities 28 . 6 . 86 COMMISSION REGULATION (EEC) No 2000/86 of 27 June 1986 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten Whereas the Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal , and in particular Article 84 (3) thereof, HAS ADOPTED THIS REGULATION : Article 1 Regulation (EEC) No 606/86 is hereby amended as follows : 1 . Article 2 is amended as follows : (a) in paragraph 1 (a), '2,5 kg' is replaced by '3 litres' ; (b) in the second subparagraph of paragraph 3, '6 . Havarti , 7. Edam, Gouda' and '8 . Other' is replaced by the following : '6 . Havarti , fat content 60 % 7. Edam in balls, Gouda 8 . Soft ripened cow's milk cheeses 9 . Cheddar, Chester 10 . Other 900 tonnes 4 600 tonnes 850 tonnes 120 tonnes 2 260 tonnes' ; Having regard to Council Regulation (EEC) No 569/86 of 25 February 1986 laying down general rules for the appli cation of the supplementary mechanism applicable to trade (STM)('), and in particular Article 7 ( 1 ) thereof, Whereas Article 2a of Commission Regulation (EEC) No 606/86 (2), as last amended by Regulation (EEC) No 1 258/86 (3), specifies the notion 'any party' in the case of applications for STM licences for cheese ; whereas the number of applications is , however, still unusually high ; whereas, therefore, on the one hand, only undertakings which are involved in the export or import of cheese should have access to the mechanism and, on the other hand, applicants for STM licences should be compelled to indicate the name of the holder and the latter should not be able to transfer rights deriving from the said licences ; whereas, lastly and for the same reasons, the amount of the security for cheese should be increased ; Whereas, if the rights deriving from licences may no longer be transferred in the future, the 10 % limit in Article 3 ( 1 ) of Regulation (EEC) No 606/86 is no longer warranted ; Whereas, in order to facilitate trade, the category 'Edam' should be better defined ; Whereas, in order to satisfy the demand for certain quan tities of cheeses, such as Cheddar, Chester and soft ripened cheeses, a specific category should be instituted for these types of cheeses ; Whereas, in accordance with Article 2a of the above mentioned Regulation, undertakings concerned must be entered in a commercial register of a Member State ; whereas account should be taken of the fact that, in certain national laws recognized status as a trader may be acquired without any corresponding entry in a commercial register ; (c) paragraph 4 is replaced by the following : '4 . Applications for STM licences for cheeses must state, for each quantity, the category and, where appropriate , the type of cheese in question.' 2 . Article 2a is replaced by the following : 'Article 2a In the case of cheese falling within heading No 04.04 of the Common Customs Tariff, only undertakings that have acquired recognized status as traders in the Member State in which they are established and that have been involved for at least 12 months in external trade in cheese may apply for an STM licence.' 3 . Article 3 is replaced by the following : Article 3 1 . The quantities covered by STM licence appli cations may not exceed quantities available nor be less than : 100 tonnes for products falling within heading No 04.01 other than in packings of a net capacity of 3 litres or less, 10 tonnes for products falling within heading No 04.01 in packings of a net capacity of 3 litres or less, 1 tonne for products falling within heading Nos 04.02, 04.03 and 04.04. (') OJ No L 55, 1 . 3 . 1986, p . 106 . 0 OJ No L 58, 1 . 3 . 1986, p . 28 . 3) OJ No L 113 , 30 . 4. 1986, p . 38 . 28 . 6 . 86 Official Journal of the European Communities No L 171 /37 2. Where quantities covered by STM licence appli cations exceed the quantities available to the extent that they lead to an imbalance in traditional patterns of trade in milk products, the Commission may reject all the applications . 4. By way of derogation from Article 2 (2) of Regu lation (EEC) No 574/86, rights deriving from STM licences shall not be transferable during their term of validity.' 4 . In the fourth indent of Article 4, ' 15 ECU' is replaced by '25 ECU'. Article 2 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. 3 . The term of validity of STM licences shall not extend beyond the end of the month following that in which the licence application was lodged. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 27 June 1986 . For the Commission Frans ANDRIESSEN Vice-President | nan | [
"Name: Commission Regulation (EEC) No 2000/86 of 27 June 1986 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten Type: Regulation Subject Matter: Europe; trade policy; processed agricultural produce Date Published: nan No L 171 /36 Official Journal of the European Communities 28 . 6 . 86 COMMISSION REGULATION (EEC) No 2000/86 of 27 June 1986 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten Whereas the Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal , and in particular Article 84 (3) thereof, HAS ADOPTED THIS REGULATION : Article 1 Regulation (EEC) No 606/86 is hereby amended as follows : 1 .",
"Article 2 is amended as follows : (a) in paragraph 1 (a), '2,5 kg' is replaced by '3 litres' ; (b) in the second subparagraph of paragraph 3, '6 . Havarti , 7. Edam, Gouda' and '8 . Other' is replaced by the following : '6 . Havarti , fat content 60 % 7. Edam in balls, Gouda 8 . Soft ripened cow's milk cheeses 9 . Cheddar, Chester 10 . Other 900 tonnes 4 600 tonnes 850 tonnes 120 tonnes 2 260 tonnes' ; Having regard to Council Regulation (EEC) No 569/86 of 25 February 1986 laying down general rules for the appli cation of the supplementary mechanism applicable to trade (STM)('), and in particular Article 7 ( 1 ) thereof, Whereas Article 2a of Commission Regulation (EEC) No 606/86 (2), as last amended by Regulation (EEC) No 1 258/86 (3), specifies the notion 'any party' in the case of applications for STM licences for cheese ; whereas the number of applications is , however, still unusually high ; whereas, therefore, on the one hand, only undertakings which are involved in the export or import of cheese should have access to the mechanism and, on the other hand, applicants for STM licences should be compelled to indicate the name of the holder and the latter should not be able to transfer rights deriving from the said licences ; whereas, lastly and for the same reasons, the amount of the security for cheese should be increased ; Whereas, if the rights deriving from licences may no longer be transferred in the future, the 10 % limit in Article 3 ( 1 ) of Regulation (EEC) No 606/86 is no longer warranted ; Whereas, in order to facilitate trade, the category 'Edam' should be better defined ; Whereas, in order to satisfy the demand for certain quan tities of cheeses, such as Cheddar, Chester and soft ripened cheeses, a specific category should be instituted for these types of cheeses ; Whereas, in accordance with Article 2a of the above mentioned Regulation, undertakings concerned must be entered in a commercial register of a Member State ; whereas account should be taken of the fact that, in certain national laws recognized status as a trader may be acquired without any corresponding entry in a commercial register ; (c) paragraph 4 is replaced by the following : '4 .",
"Applications for STM licences for cheeses must state, for each quantity, the category and, where appropriate , the type of cheese in question.' 2 . Article 2a is replaced by the following : 'Article 2a In the case of cheese falling within heading No 04.04 of the Common Customs Tariff, only undertakings that have acquired recognized status as traders in the Member State in which they are established and that have been involved for at least 12 months in external trade in cheese may apply for an STM licence.' 3 . Article 3 is replaced by the following : Article 3 1 .",
"The quantities covered by STM licence appli cations may not exceed quantities available nor be less than : 100 tonnes for products falling within heading No 04.01 other than in packings of a net capacity of 3 litres or less, 10 tonnes for products falling within heading No 04.01 in packings of a net capacity of 3 litres or less, 1 tonne for products falling within heading Nos 04.02, 04.03 and 04.04. (') OJ No L 55, 1 . 3 . 1986, p . 106 . 0 OJ No L 58, 1 .",
"3 . 1986, p . 28 . 3) OJ No L 113 , 30 . 4. 1986, p . 38 . 28 . 6 . 86 Official Journal of the European Communities No L 171 /37 2. Where quantities covered by STM licence appli cations exceed the quantities available to the extent that they lead to an imbalance in traditional patterns of trade in milk products, the Commission may reject all the applications . 4. By way of derogation from Article 2 (2) of Regu lation (EEC) No 574/86, rights deriving from STM licences shall not be transferable during their term of validity.' 4 .",
"In the fourth indent of Article 4, ' 15 ECU' is replaced by '25 ECU'. Article 2 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. 3 . The term of validity of STM licences shall not extend beyond the end of the month following that in which the licence application was lodged. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 27 June 1986 .",
"For the Commission Frans ANDRIESSEN Vice-President"
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
PAUL E. GAVIN and LINDA V. GAVIN,
Plaintiffs,
v. Case No.: 2:18-cv-532-FtM-38MRM
TERAPHYSICS CORPORATION and LOUIS FISI,
Defendants. /
OPINION AND ORDER1
Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and
Recommendation (Doc. 90), recommending that default judgment be entered against
Defendant Teraphysics Corporation under Fed. Rs. Civ. P. 16(f) and 37(d) for its failure
to comply with the Court’s Orders (Doc. 82, Doc. 84, Doc. 89) to obtain counsel and
otherwise show cause why it failed to do so. No party objects to the Report and
Recommendation, and the time to do so has expired.
A district judge “may accept, reject, or modify in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district
judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. And “[t]he judge
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order. may also receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
After examining the file independently, and upon considering Judge McCoy’s
findings and recommendations, the Court accepts and adopts the Report and
Recommendation.2
Accordingly, it is now
ORDERED:
(1) The Report and Recommendation (Doc. 90) is ACCEPTED and ADOPTED
and the findings incorporated herein.
(2) The Court grants a default against Teraphysics Corporation for failure to
comply with this Court’s Orders to Show Cause to obtain legal counsel. However, the
Court will withhold the entry of judgment until the conclusion of this case.
DONE and ORDERED in Fort Myers, Florida this 2nd day of December, 2019.
Copies: All Parties of Record
2 Although the Court previously questioned its subject matter jurisdiction over this case (Doc. 67), that issue is still live and has not yet been determined by the Court.
2 | 2019-12-02 | [
"UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION PAUL E. GAVIN and LINDA V. GAVIN, Plaintiffs, v. Case No. : 2:18-cv-532-FtM-38MRM TERAPHYSICS CORPORATION and LOUIS FISI, Defendants. / OPINION AND ORDER1 Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and Recommendation (Doc. 90), recommending that default judgment be entered against Defendant Teraphysics Corporation under Fed. Rs. Civ. P. 16(f) and 37(d) for its failure to comply with the Court’s Orders (Doc. 82, Doc.",
"84, Doc. 89) to obtain counsel and otherwise show cause why it failed to do so. No party objects to the Report and Recommendation, and the time to do so has expired. A district judge “may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. And “[t]he judge 1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order. may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id. After examining the file independently, and upon considering Judge McCoy’s findings and recommendations, the Court accepts and adopts the Report and Recommendation.2 Accordingly, it is now ORDERED: (1) The Report and Recommendation (Doc.",
"90) is ACCEPTED and ADOPTED and the findings incorporated herein. (2) The Court grants a default against Teraphysics Corporation for failure to comply with this Court’s Orders to Show Cause to obtain legal counsel. However, the Court will withhold the entry of judgment until the conclusion of this case. DONE and ORDERED in Fort Myers, Florida this 2nd day of December, 2019. Copies: All Parties of Record 2 Although the Court previously questioned its subject matter jurisdiction over this case (Doc. 67), that issue is still live and has not yet been determined by the Court. 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/115693430/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for writ of certiorari to the Supreme Court of Florida denied. Same case below, 63 So. 3d 748. | 07-25-2022 | [
"Petition for writ of certiorari to the Supreme Court of Florida denied. Same case below, 63 So. 3d 748."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7267052/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 77325 / March 8, 2016 ADMINISTRATIVE PROCEEDING File No. 3-17159 : : In the Matter of : : STEVEN H. DAVIS, Esq. : : Respondent. : : : ____________________________________ :
ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO RULE 102(e) OF THE COMMISSION’S RULES OF PRACTICE, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS
I. The Securities and Exchange Commission (“Commission”) deems it appropriate and in the public interest that public administrative proceedings be, and hereby are, instituted against Steven H. Davis (“Respondent” or “Davis”) pursuant to Rule 102(e)(3)(i) of the Commission’s Rules of Practice.1 II. In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings 1
Rule 102(e)(3)(i) provides, in relevant part, that:
The Commission, with due regard to the public interest and without preliminary hearing, may, by order, . . . suspend from appearing or practicing before it any attorney . . . who has been by name (A) [p]ermanently enjoined by any court of competent jurisdiction, by reason of his or her misconduct in an action brought by the Commission, from violating or aiding and abetting the violation of any provision of the Federal securities laws or of the rules and regulations thereunder; or (B) [f]ound by any court of competent jurisdiction in an action brought by the Commission to which he or she is a party … to have violated (unless the violation was found not to have been willful) or aided and abetted the violation of any provision of the Federal securities laws or of the rules and regulations thereunder.
herein, except as to the Commission’s jurisdiction over him and the subject matter of these proceedings, and the findings contained in Section III.2. below, which are admitted, Respondent consents to the entry of this Order Instituting Administrative Proceedings Pursuant to Rule 102(e) of the Commission’s Rules of Practice, Making Findings, and Imposing Remedial Sanctions (“Order”), as set forth below. III. On the basis of this Order and Respondent’s Offer, the Commission finds that: 1. Davis, age 62, is a resident of New York, New York. Davis is a member of the New York State Bar. Davis was the chairman of the law firm of Dewey & Leboeuf, LLP (“Dewey & LeBoeuf”), since its formation in October 2007 until around March 2012, and prior to that, Davis served as the chairman of its predecessor, LeBoeuf, Lamb, Greene & MacRae, LLP. 2. On March 6, 2014, the Commission filed a complaint against Davis in SEC v. Davis, et al., 15-cv-01528 (VEC), in the United States District Court for the Southern District of New York. On January 8, 2016, the court entered an order permanently enjoining Davis by consent, from future violations of Sections 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder, and also prohibiting Davis from acting as an officer or director of any issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act or that is required to file reports pursuant to Section 15(d) of the Exchange Act. 3. The Commission’s complaint alleged, among other things, that in 2008 and 2009, Davis was aware of and supported efforts by employees and officers of Dewey & LeBoeuf to materially falsify the firm’s financial statements, in order to meet certain covenants with its lenders. In 2010, Davis authorized Dewey & LeBoeuf to raise $150 million in a private placement and to provide Dewey & LeBoeuf’s fraudulent financial statements to investors in the private placement. IV. In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanction agreed to in Respondent Davis’s Offer.
2
Accordingly, it is hereby ORDERED pursuant to Rule 102(e)(3)(i) of the Commission’s Rules of Practice, effective immediately, that: Davis is suspended from appearing or practicing before the Commission as an attorney. By the Commission.
Brent J. Fields Secretary
3 | [
"UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 77325 / March 8, 2016 ADMINISTRATIVE PROCEEDING File No. 3-17159 : : In the Matter of : : STEVEN H. DAVIS, Esq. : : Respondent. : : : ____________________________________ : ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO RULE 102(e) OF THE COMMISSION’S RULES OF PRACTICE, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS I. The Securities and Exchange Commission (“Commission”) deems it appropriate and in the public interest that public administrative proceedings be, and hereby are, instituted against Steven H. Davis (“Respondent” or “Davis”) pursuant to Rule 102(e)(3)(i) of the Commission’s Rules of Practice.1 II. In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings 1 Rule 102(e)(3)(i) provides, in relevant part, that: The Commission, with due regard to the public interest and without preliminary hearing, may, by order, .",
". . suspend from appearing or practicing before it any attorney . . . who has been by name (A) [p]ermanently enjoined by any court of competent jurisdiction, by reason of his or her misconduct in an action brought by the Commission, from violating or aiding and abetting the violation of any provision of the Federal securities laws or of the rules and regulations thereunder; or (B) [f]ound by any court of competent jurisdiction in an action brought by the Commission to which he or she is a party … to have violated (unless the violation was found not to have been willful) or aided and abetted the violation of any provision of the Federal securities laws or of the rules and regulations thereunder. herein, except as to the Commission’s jurisdiction over him and the subject matter of these proceedings, and the findings contained in Section III.2. below, which are admitted, Respondent consents to the entry of this Order Instituting Administrative Proceedings Pursuant to Rule 102(e) of the Commission’s Rules of Practice, Making Findings, and Imposing Remedial Sanctions (“Order”), as set forth below. III.",
"On the basis of this Order and Respondent’s Offer, the Commission finds that: 1. Davis, age 62, is a resident of New York, New York. Davis is a member of the New York State Bar. Davis was the chairman of the law firm of Dewey & Leboeuf, LLP (“Dewey & LeBoeuf”), since its formation in October 2007 until around March 2012, and prior to that, Davis served as the chairman of its predecessor, LeBoeuf, Lamb, Greene & MacRae, LLP. 2. On March 6, 2014, the Commission filed a complaint against Davis in SEC v. Davis, et al., 15-cv-01528 (VEC), in the United States District Court for the Southern District of New York. On January 8, 2016, the court entered an order permanently enjoining Davis by consent, from future violations of Sections 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder, and also prohibiting Davis from acting as an officer or director of any issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act or that is required to file reports pursuant to Section 15(d) of the Exchange Act. 3. The Commission’s complaint alleged, among other things, that in 2008 and 2009, Davis was aware of and supported efforts by employees and officers of Dewey & LeBoeuf to materially falsify the firm’s financial statements, in order to meet certain covenants with its lenders.",
"In 2010, Davis authorized Dewey & LeBoeuf to raise $150 million in a private placement and to provide Dewey & LeBoeuf’s fraudulent financial statements to investors in the private placement. IV. In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanction agreed to in Respondent Davis’s Offer. 2 Accordingly, it is hereby ORDERED pursuant to Rule 102(e)(3)(i) of the Commission’s Rules of Practice, effective immediately, that: Davis is suspended from appearing or practicing before the Commission as an attorney. By the Commission. Brent J. Fields Secretary 3"
]
| /litigation/admin/2016/34-77325.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
AGREEMENT FOR SHARE EXCHANGE
THIS AGREEMENT FOR SHARE EXCHANGE (this “Agreement”) is dated as of August 15, 2005, by and among NT HOLDING CORP., a Nevada corporation (“NT”), Alan Lew, an individual with resident address at 385 Freeport#1, Sparks, NV, 89431 (“Alan Lew”) NEWFAIR ASSOCIATES LIMITED, a British Virgin Islands corporation (“NEWFAIR”), and the Shareholders of NEWFAIR who execute this Agreement (collectively the “SHAREHOLDERS”).
RECITALS:
NT and NEWFAIR desire to complete a share exchange transaction pursuant to which NT shall acquire all of the issued and outstanding common stock of NEWFAIR solely in exchange for the issuance of shares of voting stock of NT; and
THE Board of Directors of NT and the Board of Directors of NEWFAIR have each approved the proposed transaction, contingent upon satisfaction prior to closing of all of the terms and conditions of this Agreement; and
THE SHAREHOLDERS are the owners of all of the issued and outstanding common stock of NEWFAIR; and
Alan Lew is an officer, director and majority shareholder of NT Holding Corp.
THE PARTIES desire to make certain representations, warranties and agreements in connection with completion of the proposed share exchange transaction.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, and the covenants, conditions, representations and warranties hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
THE EXCHANGE
1.1 The Exchange. At the Closing (as hereinafter defined), NT shall acquire all of the issued and outstanding common stock of NEWFAIR from the SHAREHOLDERS. Consideration to be issued by NT shall be a total of 21,614,000 shares of its common stock (the “Exchange Shares”) in exchange for 100% of the issued and outstanding common stock of NEWFAIR. The Exchange Shares shall be issued in the amounts set forth in Exhibit A. The Exchange shall take place upon the terms and conditions provided for in this Agreement and in accordance with applicable law. Immediately following completion of the share exchange transaction through issuance of the Exchange Shares, NT shall have a total of approximately 24,700,665 shares of its common stock issued and outstanding. For Federal income tax purposes, it is intended that the Exchange shall constitute a tax-free reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”).
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1.2 Other Consideration. Immediately after the Closing, NT will transfer all of its assets and liabilities to its wholly owned subsidiary, PNC Lab, Inc., a Nevada corporation (“PNC”). NT will then distribute its equity in PNC to Alan Lew, an individual, who will undertake to assume all the liabilities of NT that have been transferred to PNC for a consideration of $130,000, of which $15,000 shall be held in escrow by the firm of Vincent & Rees, LC prior to Closing Date. At the Closing Date, such funds $15,000 which has been put into escrow (minus $5460 paid out to NT auditor and any other advances) will be transferred to PNC through NT. The remaining balance of $115,000 shall be paid by NT to PNC and thereafter transferred to the entities and individuals listed under Exhibit B hereto only upon NT successfully raising such funds from third party investors subsequent to the Closing Date, provided that such funding exceeds $115,000 in aggregate. NT will pay the $115,000 to PNC Labs within 12 months from the date of this executed document. Alan Lew shall execute an undertaking letter in the form attached in Exhibit C hereto to assume all liabilities of NT and PNC. Alan Lew will receive 200,000 additional shares of NT common stock for executing such undertaking.
1.3 Closing and Effective Time. Subject to the provisions of this Agreement, the parties shall hold a closing (the “Closing”) on (i) the first business day on which the last of the conditions set forth in Article V to be fulfilled prior to the Closing is fulfilled or waived or (ii) such other date as the parties hereto may agree (the “Closing Date”), at such time and place as the parties hereto may agree. Such date shall be the date of Exchange (the “Effective Time”).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of NT. NT represents and warrants to NEWFAIR and the SHAREHOLDERS as follows:
(a) Organization, Standing and Power. NT is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary.
(b) Capital Structure. As of the date of execution of this Agreement, the authorized capital stock of NT consists of 5,000,000 shares of Preferred Stock with a par value of USD 0.001, of which no share is issued and outstanding and 100,000,000 shares of Common Stock with a par value of USD 0.001 per share, of which approximately 3,086,665 shares are currently issued and outstanding. NT has issued and outstanding warrants to purchase a total of 525,000 shares of Common Stock. The Exchange Shares to be issued pursuant to this Agreement shall be, when issued pursuant to the terms of the resolution of the Board of Directors of NT approving such issuance, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as otherwise specified herein, as of the date of execution of this Agreement, there are no other options, warrants, calls, agreements or other rights to purchase or otherwise acquire from NT at any time, or upon the happening of any stated event, any shares of the capital stock of NT whether or not presently issued or outstanding.
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(c) Certificate of Incorporation, Bylaws, and Minute Books. The copies of the Articles of Incorporation and of the Bylaws of NT which have been delivered to NEWFAIR are true, correct and complete copies thereof. The minute book of NT, which has been made available for inspection, contains accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of NT since the date of incorporation and accurately reflects all transactions referred to in such minutes and consents in lieu of meetings.
(d) Authority. NT has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Board of Directors of NT. No other corporate or shareholder proceedings on the part of NT are necessary to authorize the Exchange, or the other transactions contemplated hereby.
(e) Conflict with Other Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest or other encumbrance on assets (any such conflict, violation, default, right of termination, cancellation or acceleration, loss or creation, a “violation”) pursuant to any provision of the Articles of Incorporation or Bylaws or any organizational document of NT or, result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to NT which violation would have a material adverse effect on NT taken as a whole. No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”) is required by or with respect to NT in connection with the execution and delivery of this Agreement by NT or the consummation by NT of the transactions contemplated hereby.
(f) Books and Records. NT has made and will make available for inspection by NEWFAIR upon reasonable request all the books of NT relating to the business of NT. Such books of NT have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to NEWFAIR by NT are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents.
(g) Compliance with Laws. NT is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.
(h) SEC Filings. NT has filed all periodic reports required to be filed with the Securities and Exchange Commission and as of the date hereof, is current in its filing obligations.
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(i) Financial Statements and Tax Returns. Copies of NT’s audited financial statements for the fiscal year ended December 31, 2004, its unaudited financial statements for the periods ended March 31, 2005 and June 30, 2005, and of its tax return for the fiscal year 2004 have been delivered to NEWFAIR.
(j) Litigation. There is no suit, action or proceeding pending, or, to the knowledge of NT, threatened against or affecting NT which is reasonably likely to have a material adverse effect on NT, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against NT having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.
(k) Tax Returns. NT has duly filed any tax reports and returns required to be filed by it and has fully paid all taxes and other charges claimed to be due from it by any federal, state or local taxing authorities. There are not now any pending questions relating to, or claims asserted for, taxes or assessments asserted upon NT.
2.2 Representations and Warranties of NEWFAIR. NEWFAIR represents and warrants to NT as follows:
(a) Organization, Standing, Power and Business. NEWFAIR is a corporation duly organized, validly existing and in good standing under the laws of the British Virgin Islands, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary. NEWFAIR, through its whooly owned subsidiary New Life Pharmaceutical Company Limited (incorporated in Hong Kong) owns 100% of Laiyang NewLife Foodstuff Company Limited (incorporated in the People’s Republic of China (the “PRC”)), 70% of Shandong Changli Pharmaceutical Company Limited (incorporated in the PRC) and Laiyang Runtong Health Care Company Limited (incorporated in the PRC). These companies are sometimes collectively referred to as the “NEWFAIR Group”. The NEWFAIR Group is principally engaged in the production and sale of pharmaceutical, healthcare and cosmetic products in the PRC.
(b) Capital Structure. The authorized capital stock of NEWFAIR consists of 50,000 shares of Common Stock with a par value of US$1.00 per share. As of the date of execution of this Agreement, it has a total of ten shares of common stock issued and outstanding. All issued and outstanding shares of NEWFAIR stock are validly issued, fully paid and nonassessable and not subject to preemptive rights or other restrictions on transfer. All of the issued and outstanding shares of NEWFAIR were issued in compliance with all applicable securities laws. Except as otherwise specified herein, there are no options, warrants, calls, agreements or other rights to purchase or otherwise acquire from NEWFAIR at any time, or upon the happening of any stated event, any shares of the capital stock of NEWFAIR.
(c) Certificate of Incorporation, Bylaws and Minute Books. The copies of the Certificate of Incorporation and of the other corporate documents of NEWFAIR which have been delivered to NT are true, correct and complete copies thereof. The minute books of
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NEWFAIR which have been made available for inspection contain accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of NEWFAIR since the date of incorporation and accurately reflect all transactions referred to in such minutes and consents in lieu of meetings.
(d) Authority. NEWFAIR has all requisite power to enter into this Agreement and, subject to approval of the proposed transaction by the holders of 100% of its issued and outstanding shares which are entitled to vote to approve the proposed transaction, has the requisite power and authority to consummate the transactions contemplated hereby. Except as specified herein, no other corporate or shareholder proceedings on the part of NEWFAIR are necessary to authorize the Exchange and the other transactions contemplated hereby.
(e) Conflict with Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of any provision of the Certificate of Incorporation or Bylaws of NEWFAIR or of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to NEWFAIR or its properties or assets. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to NEWFAIR in connection with the execution and delivery of this Agreement by NEWFAIR, or the consummation by NEWFAIR of the transactions contemplated hereby.
(f) RESERVED
(g) Books and Records. NEWFAIR has made and will make available for inspection by NT upon reasonable request all the books of account, relating to the business of NEWFAIR. Such books of account of NEWFAIR have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to NT by NEWFAIR are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents.
(h) Compliance with Laws. NEWFAIR is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.
(i) Liabilities and Obligations. NEWFAIR has no material liabilities or obligations (absolute, accrued, contingent or otherwise) except (i) liabilities that are reflected and reserved against on the NEWFAIR financial statements that have not been paid or discharged since the date thereof and (ii) liabilities incurred since the date of such financial statements in the ordinary course of business consistent with past practice and in accordance with this Agreement.
(j) Litigation. There is no suit, action or proceeding pending, or, to the knowledge of NEWFAIR threatened against or affecting NEWFAIR, which is reasonably likely to have a material adverse effect on NEWFAIR, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against NEWFAIR having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.
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(k) Taxes. NEWFAIR has filed or will file within the time prescribed by law (including extension of time approved by the appropriate taxing authority) all tax returns and reports required to be filed with all other jurisdictions where such filing is required by law; and NEWFAIR has paid, or made adequate provision for the payment of all taxes, interest, penalties, assessments or deficiencies due and payable on, and with respect to such periods. NEWFAIR knows of (i) no other tax returns or reports which are required to be filed which have not been so filed and (ii) no unpaid assessment for additional taxes for any fiscal period or any basis therefore.
(l) Licenses, Permits; Intellectual Property. NEWFAIR owns or possesses in the operation of its business all material authorizations which are necessary for it to conduct its business as now conducted. Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby will require any notice or consent under or have any material adverse effect upon any such authorizations.
2.3 Representations and Warranties of the Shareholders. By execution of this Agreement, each of the SHAREHOLDERS represents and warrants to NT as follows:
(a) Shares Free and Clear. The shares of NEWFAIR which he or she owns are free and clear of any liens, claims, options, charges or encumbrances of any nature.
(b) Unqualified Right to Transfer Shares. He or she has the unqualified right to sell, assign, and deliver the portion of the shares of NEWFAIR specified on Exhibit A and, upon consummation of the transactions contemplated by this Agreement, NT will acquire good and valid title to such shares, free and clear of all liens, claims, options, charges, and encumbrances of whatsoever nature.
(c) Agreement and Transaction Duly Authorized. He or she is authorized to execute and deliver this Agreement and to consummate the share exchange transaction described herein. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation or default under any term or provision of any contract, commitment, indenture, other agreement or restriction of any kind or character to which such SHAREHOLDER is a party or by which such SHAREHOLDER is bound.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 Covenants of NEWFAIR and NT. During the period from the date of this Agreement and continuing until the Effective Time, NEWFAIR and NT each agree as to themselves (except as expressly contemplated or permitted by this Agreement, or to the extent that the other party shall otherwise consent in writing):
(a) Ordinary Course. Each party shall carry on its respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted.
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(b) Dividends; Changes in Stock. No party shall (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, or (ii) repurchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of its capital stock.
(c) Issuance of Securities. No party shall issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any voting debt or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting debt or convertible securities.
(d) Governing Documents. No party shall amend or propose to amend its Articles of Incorporation or Bylaws.
(e) No Dispositions. Except for the transfer of assets in the ordinary course of business consistent with prior practice, no party shall sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets, which are material, individually or in the aggregate, to such party.
(f) Indebtedness. No party shall incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of such party or guarantee any debt securities of others other than in each case in the ordinary course of business consistent with prior practice.
3.2 Other Actions. No party shall take any action that would or is reasonably likely to result in any of its representations and warranties set forth in this Agreement being untrue as of the date made (to the extent so limited), or in any of the conditions to the Exchange set forth in Article V not being satisfied.
ARTICLE IV
ADDITIONAL AGREEMENTS, COVENANTS AND RELATED TRANSACTIONS
4.1 Restricted NT Shares. The Exchange Shares will not be registered under the Securities Act, but will be issued pursuant to applicable exemptions from such registration requirements for transactions not involving a public offering and/or for transactions which constitute “offshore transactions” as defined in Regulation S under the Securities Act of 1933. Accordingly, the Exchange Shares will constitute “restricted securities” for purposes of the Securities Act and the holders of Exchange Shares will not be able to transfer such shares except upon compliance with the registration requirements of the Securities Act or in reliance upon an available exemption therefrom. The certificates evidencing the Exchange Shares shall contain a legend to the foregoing effect and the holders of such shares shall deliver at Closing an Investment Letter acknowledging the fact that the Exchange Shares are restricted securities and agreeing to the foregoing transfer restrictions.
4.2 Access to Information. Upon reasonable notice, NT and NEWFAIR shall each afford to the officers, employees, accountants, counsel and other representatives of the other company, access to all their respective properties, books, contracts, commitments and records and, during such period, each of NT and NEWFAIR shall furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed or received by it
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during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Unless otherwise required by law, the parties will hold any such information which is nonpublic in confidence until such time as such information otherwise becomes publicly available through no wrongful act of either party, and in the event of termination of this Agreement for any reason each party shall promptly return all nonpublic documents obtained from any other party, and any copies made of such documents, to such other party.
4.3 Legal Conditions to Exchange. Each of NT and NEWFAIR shall take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the Exchange and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or upon any of their related entities or subsidiaries in connection with the Exchange. Each party shall take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by NT or NEWFAIR or any of their related entities or subsidiaries in connection with the Exchange or the taking of any action contemplated thereby or by this Agreement.
4.4 NT Board of Directors and Officers. The current directors of NT shall resign as of the Closing Date except that one of the directors shall remain in the board of directors and resigns only after NEWFAIR successfully appoints successors to the board of directors.
4.5 Additional Share Issuances. For a period of twelve months after the Closing Date, NT may not issue more than five percent (5%) of the total outstanding shares of NT as of the Closing Date under an exemption from registration under the Securities Act pursuant to Form S8 or similar form.
4.6 Acquisitions Using NT Equity. For a period of twelve months after the Closing Date, NT may not make an acquisition using equity of NT wherein the equity consideration consists of a premium of greater than 25% of the valuation of the acquiree For purposes of determining such valuation, NT will retain the services of an independent, third party registered valuation firm in the United States that will base their valuation on comparison of at least three other companies in similar industry.
4.7 Reverse split of NT common shares. For a period of twelve months after the Closing Date, NT may not make any reverse split on its common shares.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party’s Obligation To Effect the Exchange. The respective obligations of each party to effect the Exchange shall be conditional upon the filing, occurring or obtainment of all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by any governmental entity or by any applicable law, rule, or regulation governing the transactions contemplated hereby.
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5.2 Conditions to Obligations of NT. The obligation of NT to effect the Exchange is subject to the satisfaction of the following conditions on or before the Closing Date unless waived by NT:
(a) Representations and Warranties. The representations and warranties of NEWFAIR and of the SHAREHOLDERS set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, and NT shall have received a certificate signed on behalf of NEWFAIR by the President of NEWFAIR and a certificate signed by each of the SHAREHOLDERS to such effect.
(b) Performance of Obligations of NEWFAIR. NEWFAIR shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and NT shall have received a certificate signed on behalf of NEWFAIR by the President to such effect.
(c) Closing Documents. NT shall have received such certificates and other closing documents as counsel for NT shall reasonably request.
(d) No Dissenting Shares. SHAREHOLDERS holding 100% of the issued and outstanding common stock of number of shares of common stock of NEWFAIR shall have executed this Agreement and consented to completion of the share exchange transaction described herein.
(e) Consents. NEWFAIR shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of NT, individually or in the aggregate, have a material adverse effect on NEWFAIR and its subsidiaries and related entities taken as a whole upon the consummation of the transactions contemplated hereby. NEWFAIR shall also have received the approval of its shareholders in accordance with applicable law.
(f) Due Diligence Review. NT shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of NEWFAIR and shall not have determined that any of the representations or warranties of NEWFAIR contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that NEWFAIR is otherwise in violation of any of the provisions of this Agreement.
(g) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of NT, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against NEWFAIR, the consequences of which, in the judgment of NT, could be materially adverse to NEWFAIR.
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5.3 Conditions to Obligations of NEWFAIR. The obligation of NEWFAIR to effect the Exchange is subject to the satisfaction of the following conditions unless waived by NEWFAIR:
(a) Representations and Warranties. The representations and warranties of NT set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, NEWFAIR shall have received a certificate signed on behalf of NT by the President to such effect.
(b) Performance of Obligations of NT. NT shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and NEWFAIR shall have received a certificate signed on behalf of NT by the President to such effect.
(c) Closing Documents. NEWFAIR shall have received such certificates and other closing documents as counsel for NEWFAIR shall reasonably request.
(d) Consents. NT shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby.
(e) Due Diligence Review. NEWFAIR shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of NT and shall not have determined that any of the representations or warranties of NT contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that NT is otherwise in violation of any of the provisions of this Agreement.
(f) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of NEWFAIR, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against NT the consequences of which, in the judgment of NEWFAIR, could be materially adverse to NT.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1 Termination. This Agreement may be terminated at any time prior to the Effective Time:
(a)
by mutual consent of NT and NEWFAIR;
(b) by either NT or NEWFAIR if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement which breach has not been cured within five (5) business days following receipt by
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the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Exchange shall have become final and non-appealable; or
(c) by either NT or NEWFAIR if the Exchange shall not have been consummated before September 1, 2005.
6.2 Effect of Termination. In the event of termination of this Agreement by either NEWFAIR or NT as provided in Section 6.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto. In such event, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
6.3 Amendment. This Agreement may be amended by mutual agreement of NT, NEWFAIR and the SHAREHOLDERS, provided that in the case of NT and NEWFAIR, any such amendment must authorized by their respective Boards of Directors, and to the extent required by law, approved by their respective shareholders. Any such amendment must be by an instrument in writing signed on behalf of each of the parties hereto.
6.4 Extension; Waiver. At any time prior to the Effective Time, the parties hereto, by action taken or authorized by their respective Board of Directors, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1 Survival of Representations, Warranties and Agreements. All of the representations, warranties and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time for a period of one year from the date of this Agreement.
7.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a)
If to NT and ALAN LEW:
385 Freeport#1
Sparks, NV, 89431
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(b)
If to NEWFAIR:
Unit 507
Commercial House
No. 35 Queen’s Road Central
Hong Kong
(c)
If to the SHAREHOLDERS, at their respective addresses specified on Exhibit A.
7.3 Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The phrase “made available” in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available.
7.4 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
7.5 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This Agreement (including the documents and the instruments referred to herein) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
7.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of law. Each party hereby irrevocably submits to the jurisdiction of any Nevada state court or any federal court in the State of Nevada in respect of any suit, action or proceeding arising out of or relating to this Agreement, and irrevocably accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts.
7.7 No Remedy in Certain Circumstances. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof or thereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take any action required herein, the other party shall not be entitled to specific performance of such provision or part hereof or thereof or to any other remedy, including but not limited to money damages, for breach hereof or thereof or of any other provision of this Agreement or part hereof or thereof as a result of such holding or order.
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7.8 Publicity. Except as otherwise required by law or the rules of the SEC, so long as this Agreement is in effect, no party shall issue or cause the publication of any press release or other public announcement with respect to the transactions contemplated by this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.
7.9 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
ARTICLE VIII
INDEMNIFICATION
8.1 NTHH Stockholders Indemnification. For a period of one year after the Closing, each of the NTHH Stockholders (each an “Indemnifying Party” with respect to the NTHH Stockholders Indemnification) jointly hereby agrees to indemnify NewFair, the NewFair Stockholders and each of the officers, agents and directors of NewFair or the NewFair Stockholders against any loss, liability, claim, damage or expense (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (each an “Indemnified Party” with respect to the NTHH Stockholders Indemnification) to which it or they may become subject arising out of or based on either (i) any breach of or inaccuracy in any of the representations and warranties or covenants or conditions made by NTHH and/or the NTHH Stockholders herein in this Agreement; or (ii) any and all liabilities arising out of or in connection with: (A) any of the assets of NTHH prior to the Closing; or (B) the operations of NTHH prior to the Closing (the “NTHH Stockholders Indemnification”). In order to secure the payment of the NTHH Stockholders Indemnification, the Newfair has agreed to allow all the assets and liabilities to be put into PNC LABS, INC., then entered into an Agreement with Alan Lew to dispose of all the assets and liabilities of PNC labs (the “Undertaking Agreement”).
8.2 NewFair and NewFair Stockholders Indemnification. For a period of one year after the Closing, each of NewFair and the NewFair Stockholders (each an “Indemnifying Party” with respect to the NewFair Indemnification) jointly hereby agrees to indemnify NTHH and each of the officers, agents and directors of NTHH against any loss, liability, claim, damage or expense (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (each an “Indemnified Party” with respect to the NewFair Indemnification) to which it or they may become subject arising out of or based on either (i) any breach of or inaccuracy in any of the representations and warranties or covenants or conditions made by NewFair and/or the NewFair Stockholders herein in this Agreement; or (ii) any and all liabilities arising out of or in connection with: (A) any of the assets of NewFair or the NewFair Stockholders prior to the Closing; or (B) the operations of NewFair or the NewFair Stockholders prior to the Closing (the “NewFair Indemnification”).
8.3 Indemnification Procedures. If any action shall be brought against any Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Indemnified Party shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not be liable to any Indemnified Party under this Article 8 for any settlement by an Indemnified Party effected without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed; or to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Indemnified Party’s indemnification pursuant to this Article 8.
IN WITNESS WHEREOF, this Agreement for Share Exchange has been signed by the parties set forth below as of the date set forth above.
NT HOLDING CORP
By: /s/ Alan Lew
__________, Authorized Officer
Date: August___, 2005
NEWFAIR ASSOCIATES LIMITED
By: /s/Ivan Wong
_________, Authorized Officer
Date: August__, 2005
SHAREHOLDERS:
IW ASSET MANAGEMENT LIMITED
By:______________________________
PERFECT FIELD LIMITED
By:______________________________
--------------------------------------------------------------------------------
EXHIBIT A
SHAREHOLDER
NUMBER OF SHARES
IW Asset Management Limited
15,957,280
Kong Kwan Tung
3,489,320
Michael Chin Som Hsia
500,000
Rick Key International Investment Limited
1,152,400
Investing in Industry, Inc.
157,500
Robert Papiri
157,500
Alan Lew
200,000
--------------------------------------------------------------------------------
EXHIBIT B
Alan Lew
Communications Holding Corp.
Sonya Fukuda
Ed Wong
Aaron Etra
Andre Todd
--------------------------------------------------------------------------------
EXHIBIT C
ALAN LEW
385 Freeport #1
Sparks, NV 89431
August 16, 2005
NT Holding Corp. and PNC Lab, Inc.
385 Freeport #1
Sparks, NV 89431
Gentlemen:
I, Alan Lew, hereby personally undertake and acknowledge personal responsibility to pay any and all debts, liabilities and other obligations of each of NT Holding Corp and PNC Lab, Inc. as of the date hereof. I acknowledge that I have received 200,000 shares of NT Holding Corp as consideration for this personal undertaking.
Very truly yours,
Alan Lew | [
"AGREEMENT FOR SHARE EXCHANGE THIS AGREEMENT FOR SHARE EXCHANGE (this “Agreement”) is dated as of August 15, 2005, by and among NT HOLDING CORP., a Nevada corporation (“NT”), Alan Lew, an individual with resident address at 385 Freeport#1, Sparks, NV, 89431 (“Alan Lew”) NEWFAIR ASSOCIATES LIMITED, a British Virgin Islands corporation (“NEWFAIR”), and the Shareholders of NEWFAIR who execute this Agreement (collectively the “SHAREHOLDERS”). RECITALS: NT and NEWFAIR desire to complete a share exchange transaction pursuant to which NT shall acquire all of the issued and outstanding common stock of NEWFAIR solely in exchange for the issuance of shares of voting stock of NT; and THE Board of Directors of NT and the Board of Directors of NEWFAIR have each approved the proposed transaction, contingent upon satisfaction prior to closing of all of the terms and conditions of this Agreement; and THE SHAREHOLDERS are the owners of all of the issued and outstanding common stock of NEWFAIR; and Alan Lew is an officer, director and majority shareholder of NT Holding Corp. THE PARTIES desire to make certain representations, warranties and agreements in connection with completion of the proposed share exchange transaction. NOW, THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, and the covenants, conditions, representations and warranties hereinafter set forth, the parties hereby agree as follows: ARTICLE I THE EXCHANGE 1.1 The Exchange. At the Closing (as hereinafter defined), NT shall acquire all of the issued and outstanding common stock of NEWFAIR from the SHAREHOLDERS.",
"Consideration to be issued by NT shall be a total of 21,614,000 shares of its common stock (the “Exchange Shares”) in exchange for 100% of the issued and outstanding common stock of NEWFAIR. The Exchange Shares shall be issued in the amounts set forth in Exhibit A. The Exchange shall take place upon the terms and conditions provided for in this Agreement and in accordance with applicable law. Immediately following completion of the share exchange transaction through issuance of the Exchange Shares, NT shall have a total of approximately 24,700,665 shares of its common stock issued and outstanding. For Federal income tax purposes, it is intended that the Exchange shall constitute a tax-free reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”). -------------------------------------------------------------------------------- 1.2 Other Consideration. Immediately after the Closing, NT will transfer all of its assets and liabilities to its wholly owned subsidiary, PNC Lab, Inc., a Nevada corporation (“PNC”). NT will then distribute its equity in PNC to Alan Lew, an individual, who will undertake to assume all the liabilities of NT that have been transferred to PNC for a consideration of $130,000, of which $15,000 shall be held in escrow by the firm of Vincent & Rees, LC prior to Closing Date.",
"At the Closing Date, such funds $15,000 which has been put into escrow (minus $5460 paid out to NT auditor and any other advances) will be transferred to PNC through NT. The remaining balance of $115,000 shall be paid by NT to PNC and thereafter transferred to the entities and individuals listed under Exhibit B hereto only upon NT successfully raising such funds from third party investors subsequent to the Closing Date, provided that such funding exceeds $115,000 in aggregate. NT will pay the $115,000 to PNC Labs within 12 months from the date of this executed document. Alan Lew shall execute an undertaking letter in the form attached in Exhibit C hereto to assume all liabilities of NT and PNC. Alan Lew will receive 200,000 additional shares of NT common stock for executing such undertaking. 1.3 Closing and Effective Time.",
"Subject to the provisions of this Agreement, the parties shall hold a closing (the “Closing”) on (i) the first business day on which the last of the conditions set forth in Article V to be fulfilled prior to the Closing is fulfilled or waived or (ii) such other date as the parties hereto may agree (the “Closing Date”), at such time and place as the parties hereto may agree. Such date shall be the date of Exchange (the “Effective Time”). ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1 Representations and Warranties of NT. NT represents and warrants to NEWFAIR and the SHAREHOLDERS as follows: (a) Organization, Standing and Power. NT is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary.",
"(b) Capital Structure. As of the date of execution of this Agreement, the authorized capital stock of NT consists of 5,000,000 shares of Preferred Stock with a par value of USD 0.001, of which no share is issued and outstanding and 100,000,000 shares of Common Stock with a par value of USD 0.001 per share, of which approximately 3,086,665 shares are currently issued and outstanding. NT has issued and outstanding warrants to purchase a total of 525,000 shares of Common Stock. The Exchange Shares to be issued pursuant to this Agreement shall be, when issued pursuant to the terms of the resolution of the Board of Directors of NT approving such issuance, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as otherwise specified herein, as of the date of execution of this Agreement, there are no other options, warrants, calls, agreements or other rights to purchase or otherwise acquire from NT at any time, or upon the happening of any stated event, any shares of the capital stock of NT whether or not presently issued or outstanding. -------------------------------------------------------------------------------- (c) Certificate of Incorporation, Bylaws, and Minute Books. The copies of the Articles of Incorporation and of the Bylaws of NT which have been delivered to NEWFAIR are true, correct and complete copies thereof. The minute book of NT, which has been made available for inspection, contains accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of NT since the date of incorporation and accurately reflects all transactions referred to in such minutes and consents in lieu of meetings.",
"(d) Authority. NT has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Board of Directors of NT. No other corporate or shareholder proceedings on the part of NT are necessary to authorize the Exchange, or the other transactions contemplated hereby. (e) Conflict with Other Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest or other encumbrance on assets (any such conflict, violation, default, right of termination, cancellation or acceleration, loss or creation, a “violation”) pursuant to any provision of the Articles of Incorporation or Bylaws or any organizational document of NT or, result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to NT which violation would have a material adverse effect on NT taken as a whole.",
"No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Entity”) is required by or with respect to NT in connection with the execution and delivery of this Agreement by NT or the consummation by NT of the transactions contemplated hereby. (f) Books and Records. NT has made and will make available for inspection by NEWFAIR upon reasonable request all the books of NT relating to the business of NT. Such books of NT have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to NEWFAIR by NT are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents. (g) Compliance with Laws. NT is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.",
"(h) SEC Filings. NT has filed all periodic reports required to be filed with the Securities and Exchange Commission and as of the date hereof, is current in its filing obligations. -------------------------------------------------------------------------------- (i) Financial Statements and Tax Returns. Copies of NT’s audited financial statements for the fiscal year ended December 31, 2004, its unaudited financial statements for the periods ended March 31, 2005 and June 30, 2005, and of its tax return for the fiscal year 2004 have been delivered to NEWFAIR. (j) Litigation. There is no suit, action or proceeding pending, or, to the knowledge of NT, threatened against or affecting NT which is reasonably likely to have a material adverse effect on NT, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against NT having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.",
"(k) Tax Returns. NT has duly filed any tax reports and returns required to be filed by it and has fully paid all taxes and other charges claimed to be due from it by any federal, state or local taxing authorities. There are not now any pending questions relating to, or claims asserted for, taxes or assessments asserted upon NT. 2.2 Representations and Warranties of NEWFAIR. NEWFAIR represents and warrants to NT as follows: (a) Organization, Standing, Power and Business. NEWFAIR is a corporation duly organized, validly existing and in good standing under the laws of the British Virgin Islands, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary. NEWFAIR, through its whooly owned subsidiary New Life Pharmaceutical Company Limited (incorporated in Hong Kong) owns 100% of Laiyang NewLife Foodstuff Company Limited (incorporated in the People’s Republic of China (the “PRC”)), 70% of Shandong Changli Pharmaceutical Company Limited (incorporated in the PRC) and Laiyang Runtong Health Care Company Limited (incorporated in the PRC).",
"These companies are sometimes collectively referred to as the “NEWFAIR Group”. The NEWFAIR Group is principally engaged in the production and sale of pharmaceutical, healthcare and cosmetic products in the PRC. (b) Capital Structure. The authorized capital stock of NEWFAIR consists of 50,000 shares of Common Stock with a par value of US$1.00 per share. As of the date of execution of this Agreement, it has a total of ten shares of common stock issued and outstanding. All issued and outstanding shares of NEWFAIR stock are validly issued, fully paid and nonassessable and not subject to preemptive rights or other restrictions on transfer. All of the issued and outstanding shares of NEWFAIR were issued in compliance with all applicable securities laws. Except as otherwise specified herein, there are no options, warrants, calls, agreements or other rights to purchase or otherwise acquire from NEWFAIR at any time, or upon the happening of any stated event, any shares of the capital stock of NEWFAIR. (c) Certificate of Incorporation, Bylaws and Minute Books. The copies of the Certificate of Incorporation and of the other corporate documents of NEWFAIR which have been delivered to NT are true, correct and complete copies thereof.",
"The minute books of -------------------------------------------------------------------------------- NEWFAIR which have been made available for inspection contain accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of NEWFAIR since the date of incorporation and accurately reflect all transactions referred to in such minutes and consents in lieu of meetings. (d) Authority. NEWFAIR has all requisite power to enter into this Agreement and, subject to approval of the proposed transaction by the holders of 100% of its issued and outstanding shares which are entitled to vote to approve the proposed transaction, has the requisite power and authority to consummate the transactions contemplated hereby.",
"Except as specified herein, no other corporate or shareholder proceedings on the part of NEWFAIR are necessary to authorize the Exchange and the other transactions contemplated hereby. (e) Conflict with Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of any provision of the Certificate of Incorporation or Bylaws of NEWFAIR or of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to NEWFAIR or its properties or assets.",
"No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to NEWFAIR in connection with the execution and delivery of this Agreement by NEWFAIR, or the consummation by NEWFAIR of the transactions contemplated hereby. (f) RESERVED (g) Books and Records. NEWFAIR has made and will make available for inspection by NT upon reasonable request all the books of account, relating to the business of NEWFAIR. Such books of account of NEWFAIR have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to NT by NEWFAIR are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents. (h) Compliance with Laws. NEWFAIR is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses. (i) Liabilities and Obligations. NEWFAIR has no material liabilities or obligations (absolute, accrued, contingent or otherwise) except (i) liabilities that are reflected and reserved against on the NEWFAIR financial statements that have not been paid or discharged since the date thereof and (ii) liabilities incurred since the date of such financial statements in the ordinary course of business consistent with past practice and in accordance with this Agreement.",
"(j) Litigation. There is no suit, action or proceeding pending, or, to the knowledge of NEWFAIR threatened against or affecting NEWFAIR, which is reasonably likely to have a material adverse effect on NEWFAIR, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against NEWFAIR having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect. -------------------------------------------------------------------------------- (k) Taxes. NEWFAIR has filed or will file within the time prescribed by law (including extension of time approved by the appropriate taxing authority) all tax returns and reports required to be filed with all other jurisdictions where such filing is required by law; and NEWFAIR has paid, or made adequate provision for the payment of all taxes, interest, penalties, assessments or deficiencies due and payable on, and with respect to such periods. NEWFAIR knows of (i) no other tax returns or reports which are required to be filed which have not been so filed and (ii) no unpaid assessment for additional taxes for any fiscal period or any basis therefore. (l) Licenses, Permits; Intellectual Property.",
"NEWFAIR owns or possesses in the operation of its business all material authorizations which are necessary for it to conduct its business as now conducted. Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby will require any notice or consent under or have any material adverse effect upon any such authorizations. 2.3 Representations and Warranties of the Shareholders. By execution of this Agreement, each of the SHAREHOLDERS represents and warrants to NT as follows: (a) Shares Free and Clear. The shares of NEWFAIR which he or she owns are free and clear of any liens, claims, options, charges or encumbrances of any nature. (b) Unqualified Right to Transfer Shares. He or she has the unqualified right to sell, assign, and deliver the portion of the shares of NEWFAIR specified on Exhibit A and, upon consummation of the transactions contemplated by this Agreement, NT will acquire good and valid title to such shares, free and clear of all liens, claims, options, charges, and encumbrances of whatsoever nature. (c) Agreement and Transaction Duly Authorized.",
"He or she is authorized to execute and deliver this Agreement and to consummate the share exchange transaction described herein. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation or default under any term or provision of any contract, commitment, indenture, other agreement or restriction of any kind or character to which such SHAREHOLDER is a party or by which such SHAREHOLDER is bound. ARTICLE III COVENANTS RELATING TO CONDUCT OF BUSINESS 3.1 Covenants of NEWFAIR and NT. During the period from the date of this Agreement and continuing until the Effective Time, NEWFAIR and NT each agree as to themselves (except as expressly contemplated or permitted by this Agreement, or to the extent that the other party shall otherwise consent in writing): (a) Ordinary Course. Each party shall carry on its respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. -------------------------------------------------------------------------------- (b) Dividends; Changes in Stock. No party shall (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, or (ii) repurchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of its capital stock. (c) Issuance of Securities.",
"No party shall issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any voting debt or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting debt or convertible securities. (d) Governing Documents. No party shall amend or propose to amend its Articles of Incorporation or Bylaws. (e) No Dispositions. Except for the transfer of assets in the ordinary course of business consistent with prior practice, no party shall sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets, which are material, individually or in the aggregate, to such party. (f) Indebtedness. No party shall incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of such party or guarantee any debt securities of others other than in each case in the ordinary course of business consistent with prior practice.",
"3.2 Other Actions. No party shall take any action that would or is reasonably likely to result in any of its representations and warranties set forth in this Agreement being untrue as of the date made (to the extent so limited), or in any of the conditions to the Exchange set forth in Article V not being satisfied. ARTICLE IV ADDITIONAL AGREEMENTS, COVENANTS AND RELATED TRANSACTIONS 4.1 Restricted NT Shares. The Exchange Shares will not be registered under the Securities Act, but will be issued pursuant to applicable exemptions from such registration requirements for transactions not involving a public offering and/or for transactions which constitute “offshore transactions” as defined in Regulation S under the Securities Act of 1933. Accordingly, the Exchange Shares will constitute “restricted securities” for purposes of the Securities Act and the holders of Exchange Shares will not be able to transfer such shares except upon compliance with the registration requirements of the Securities Act or in reliance upon an available exemption therefrom.",
"The certificates evidencing the Exchange Shares shall contain a legend to the foregoing effect and the holders of such shares shall deliver at Closing an Investment Letter acknowledging the fact that the Exchange Shares are restricted securities and agreeing to the foregoing transfer restrictions. 4.2 Access to Information. Upon reasonable notice, NT and NEWFAIR shall each afford to the officers, employees, accountants, counsel and other representatives of the other company, access to all their respective properties, books, contracts, commitments and records and, during such period, each of NT and NEWFAIR shall furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed or received by it -------------------------------------------------------------------------------- during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Unless otherwise required by law, the parties will hold any such information which is nonpublic in confidence until such time as such information otherwise becomes publicly available through no wrongful act of either party, and in the event of termination of this Agreement for any reason each party shall promptly return all nonpublic documents obtained from any other party, and any copies made of such documents, to such other party.",
"4.3 Legal Conditions to Exchange. Each of NT and NEWFAIR shall take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the Exchange and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or upon any of their related entities or subsidiaries in connection with the Exchange. Each party shall take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by NT or NEWFAIR or any of their related entities or subsidiaries in connection with the Exchange or the taking of any action contemplated thereby or by this Agreement.",
"4.4 NT Board of Directors and Officers. The current directors of NT shall resign as of the Closing Date except that one of the directors shall remain in the board of directors and resigns only after NEWFAIR successfully appoints successors to the board of directors. 4.5 Additional Share Issuances. For a period of twelve months after the Closing Date, NT may not issue more than five percent (5%) of the total outstanding shares of NT as of the Closing Date under an exemption from registration under the Securities Act pursuant to Form S8 or similar form. 4.6 Acquisitions Using NT Equity. For a period of twelve months after the Closing Date, NT may not make an acquisition using equity of NT wherein the equity consideration consists of a premium of greater than 25% of the valuation of the acquiree For purposes of determining such valuation, NT will retain the services of an independent, third party registered valuation firm in the United States that will base their valuation on comparison of at least three other companies in similar industry.",
"4.7 Reverse split of NT common shares. For a period of twelve months after the Closing Date, NT may not make any reverse split on its common shares. ARTICLE V CONDITIONS PRECEDENT 5.1 Conditions to Each Party’s Obligation To Effect the Exchange. The respective obligations of each party to effect the Exchange shall be conditional upon the filing, occurring or obtainment of all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by any governmental entity or by any applicable law, rule, or regulation governing the transactions contemplated hereby. -------------------------------------------------------------------------------- 5.2 Conditions to Obligations of NT. The obligation of NT to effect the Exchange is subject to the satisfaction of the following conditions on or before the Closing Date unless waived by NT: (a) Representations and Warranties. The representations and warranties of NEWFAIR and of the SHAREHOLDERS set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, and NT shall have received a certificate signed on behalf of NEWFAIR by the President of NEWFAIR and a certificate signed by each of the SHAREHOLDERS to such effect. (b) Performance of Obligations of NEWFAIR.",
"NEWFAIR shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and NT shall have received a certificate signed on behalf of NEWFAIR by the President to such effect. (c) Closing Documents. NT shall have received such certificates and other closing documents as counsel for NT shall reasonably request. (d) No Dissenting Shares. SHAREHOLDERS holding 100% of the issued and outstanding common stock of number of shares of common stock of NEWFAIR shall have executed this Agreement and consented to completion of the share exchange transaction described herein. (e) Consents. NEWFAIR shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of NT, individually or in the aggregate, have a material adverse effect on NEWFAIR and its subsidiaries and related entities taken as a whole upon the consummation of the transactions contemplated hereby.",
"NEWFAIR shall also have received the approval of its shareholders in accordance with applicable law. (f) Due Diligence Review. NT shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of NEWFAIR and shall not have determined that any of the representations or warranties of NEWFAIR contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that NEWFAIR is otherwise in violation of any of the provisions of this Agreement. (g) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of NT, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against NEWFAIR, the consequences of which, in the judgment of NT, could be materially adverse to NEWFAIR. -------------------------------------------------------------------------------- 5.3 Conditions to Obligations of NEWFAIR. The obligation of NEWFAIR to effect the Exchange is subject to the satisfaction of the following conditions unless waived by NEWFAIR: (a) Representations and Warranties. The representations and warranties of NT set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, NEWFAIR shall have received a certificate signed on behalf of NT by the President to such effect.",
"(b) Performance of Obligations of NT. NT shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and NEWFAIR shall have received a certificate signed on behalf of NT by the President to such effect. (c) Closing Documents. NEWFAIR shall have received such certificates and other closing documents as counsel for NEWFAIR shall reasonably request. (d) Consents. NT shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby. (e) Due Diligence Review. NEWFAIR shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of NT and shall not have determined that any of the representations or warranties of NT contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that NT is otherwise in violation of any of the provisions of this Agreement.",
"(f) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of NEWFAIR, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against NT the consequences of which, in the judgment of NEWFAIR, could be materially adverse to NT. ARTICLE VI TERMINATION AND AMENDMENT 6.1 Termination. This Agreement may be terminated at any time prior to the Effective Time: (a) by mutual consent of NT and NEWFAIR; (b) by either NT or NEWFAIR if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement which breach has not been cured within five (5) business days following receipt by -------------------------------------------------------------------------------- the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Exchange shall have become final and non-appealable; or (c) by either NT or NEWFAIR if the Exchange shall not have been consummated before September 1, 2005.",
"6.2 Effect of Termination. In the event of termination of this Agreement by either NEWFAIR or NT as provided in Section 6.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto. In such event, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses. 6.3 Amendment. This Agreement may be amended by mutual agreement of NT, NEWFAIR and the SHAREHOLDERS, provided that in the case of NT and NEWFAIR, any such amendment must authorized by their respective Boards of Directors, and to the extent required by law, approved by their respective shareholders.",
"Any such amendment must be by an instrument in writing signed on behalf of each of the parties hereto. 6.4 Extension; Waiver. At any time prior to the Effective Time, the parties hereto, by action taken or authorized by their respective Board of Directors, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party. ARTICLE VII GENERAL PROVISIONS 7.1 Survival of Representations, Warranties and Agreements. All of the representations, warranties and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time for a period of one year from the date of this Agreement.",
"7.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) If to NT and ALAN LEW: 385 Freeport#1 Sparks, NV, 89431 -------------------------------------------------------------------------------- (b) If to NEWFAIR: Unit 507 Commercial House No. 35 Queen’s Road Central Hong Kong (c) If to the SHAREHOLDERS, at their respective addresses specified on Exhibit A. 7.3 Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The phrase “made available” in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available.",
"7.4 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. 7.5 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This Agreement (including the documents and the instruments referred to herein) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder. 7.6 Governing Law.",
"This Agreement shall be governed and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of law. Each party hereby irrevocably submits to the jurisdiction of any Nevada state court or any federal court in the State of Nevada in respect of any suit, action or proceeding arising out of or relating to this Agreement, and irrevocably accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts.",
"7.7 No Remedy in Certain Circumstances. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof or thereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take any action required herein, the other party shall not be entitled to specific performance of such provision or part hereof or thereof or to any other remedy, including but not limited to money damages, for breach hereof or thereof or of any other provision of this Agreement or part hereof or thereof as a result of such holding or order. -------------------------------------------------------------------------------- 7.8 Publicity. Except as otherwise required by law or the rules of the SEC, so long as this Agreement is in effect, no party shall issue or cause the publication of any press release or other public announcement with respect to the transactions contemplated by this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.",
"7.9 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. ARTICLE VIII INDEMNIFICATION 8.1 NTHH Stockholders Indemnification. For a period of one year after the Closing, each of the NTHH Stockholders (each an “Indemnifying Party” with respect to the NTHH Stockholders Indemnification) jointly hereby agrees to indemnify NewFair, the NewFair Stockholders and each of the officers, agents and directors of NewFair or the NewFair Stockholders against any loss, liability, claim, damage or expense (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (each an “Indemnified Party” with respect to the NTHH Stockholders Indemnification) to which it or they may become subject arising out of or based on either (i) any breach of or inaccuracy in any of the representations and warranties or covenants or conditions made by NTHH and/or the NTHH Stockholders herein in this Agreement; or (ii) any and all liabilities arising out of or in connection with: (A) any of the assets of NTHH prior to the Closing; or (B) the operations of NTHH prior to the Closing (the “NTHH Stockholders Indemnification”).",
"In order to secure the payment of the NTHH Stockholders Indemnification, the Newfair has agreed to allow all the assets and liabilities to be put into PNC LABS, INC., then entered into an Agreement with Alan Lew to dispose of all the assets and liabilities of PNC labs (the “Undertaking Agreement”). 8.2 NewFair and NewFair Stockholders Indemnification. For a period of one year after the Closing, each of NewFair and the NewFair Stockholders (each an “Indemnifying Party” with respect to the NewFair Indemnification) jointly hereby agrees to indemnify NTHH and each of the officers, agents and directors of NTHH against any loss, liability, claim, damage or expense (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (each an “Indemnified Party” with respect to the NewFair Indemnification) to which it or they may become subject arising out of or based on either (i) any breach of or inaccuracy in any of the representations and warranties or covenants or conditions made by NewFair and/or the NewFair Stockholders herein in this Agreement; or (ii) any and all liabilities arising out of or in connection with: (A) any of the assets of NewFair or the NewFair Stockholders prior to the Closing; or (B) the operations of NewFair or the NewFair Stockholders prior to the Closing (the “NewFair Indemnification”).",
"8.3 Indemnification Procedures. If any action shall be brought against any Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Indemnified Party shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not be liable to any Indemnified Party under this Article 8 for any settlement by an Indemnified Party effected without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed; or to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Indemnified Party’s indemnification pursuant to this Article 8.",
"IN WITNESS WHEREOF, this Agreement for Share Exchange has been signed by the parties set forth below as of the date set forth above. NT HOLDING CORP By: /s/ Alan Lew __________, Authorized Officer Date: August___, 2005 NEWFAIR ASSOCIATES LIMITED By: /s/Ivan Wong _________, Authorized Officer Date: August__, 2005 SHAREHOLDERS: IW ASSET MANAGEMENT LIMITED By:______________________________ PERFECT FIELD LIMITED By:______________________________ -------------------------------------------------------------------------------- EXHIBIT A SHAREHOLDER NUMBER OF SHARES IW Asset Management Limited 15,957,280 Kong Kwan Tung 3,489,320 Michael Chin Som Hsia 500,000 Rick Key International Investment Limited 1,152,400 Investing in Industry, Inc. 157,500 Robert Papiri 157,500 Alan Lew 200,000 -------------------------------------------------------------------------------- EXHIBIT B Alan Lew Communications Holding Corp. Sonya Fukuda Ed Wong Aaron Etra Andre Todd -------------------------------------------------------------------------------- EXHIBIT C ALAN LEW 385 Freeport #1 Sparks, NV 89431 August 16, 2005 NT Holding Corp. and PNC Lab, Inc. 385 Freeport #1 Sparks, NV 89431 Gentlemen: I, Alan Lew, hereby personally undertake and acknowledge personal responsibility to pay any and all debts, liabilities and other obligations of each of NT Holding Corp and PNC Lab, Inc. as of the date hereof. I acknowledge that I have received 200,000 shares of NT Holding Corp as consideration for this personal undertaking.",
"Very truly yours, Alan Lew"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
DETAILED ACTION In response to the Amendments filed on April 27, 2021, claims 1, 9, and 18 are amended. Currently, claims 1, 2, 5-11, 15-20, 22, and 24 are still pending.
Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments With respect to the previous 35 U.S.C. 112(b) rejection, the amendment to the claims as noted on pg. 8 of the response is considered sufficient to clarifying the previous confusion. Therefore, the previous 35 U.S.C. 112(b) rejection of the claims are hereby withdrawn.
REASONS FOR ALLOWANCE Claims 1, 2, 5-11, 15-20, 22, and 24, as presented in the Amendments filed on April 27, 2021, are allowed over the prior art of record. The closest prior art, see PTO-892, do not disclose singly or in combination the specifics of the amended claims, as explained in the Notice of Allowance dated October 7, 2020. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should be preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA ZHANG whose telephone number is (571)270-5369. The examiner can normally be reached on Monday-Thursday 8AM - 4PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bhisma Mehta can be reached on (571) 272-3383. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /JENNA ZHANG/ Examiner, Art Unit 3763 | 2021-05-07T09:54:41 | [
"DETAILED ACTION In response to the Amendments filed on April 27, 2021, claims 1, 9, and 18 are amended. Currently, claims 1, 2, 5-11, 15-20, 22, and 24 are still pending. Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Response to Arguments With respect to the previous 35 U.S.C. 112(b) rejection, the amendment to the claims as noted on pg. 8 of the response is considered sufficient to clarifying the previous confusion. Therefore, the previous 35 U.S.C. 112(b) rejection of the claims are hereby withdrawn. REASONS FOR ALLOWANCE Claims 1, 2, 5-11, 15-20, 22, and 24, as presented in the Amendments filed on April 27, 2021, are allowed over the prior art of record. The closest prior art, see PTO-892, do not disclose singly or in combination the specifics of the amended claims, as explained in the Notice of Allowance dated October 7, 2020. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should be preferably accompany the issue fee.",
"Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA ZHANG whose telephone number is (571)270-5369. The examiner can normally be reached on Monday-Thursday 8AM - 4PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bhisma Mehta can be reached on (571) 272-3383.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"/JENNA ZHANG/ Examiner, Art Unit 3763"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Judgment affirmed, with costs; no opinion. Concur: LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ. | 07-05-2016 | [
"Judgment affirmed, with costs; no opinion. Concur: LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3611562/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
{'filename': 'ICJ_072_ReviewJudgment333UNAT_CARAT_NA_1987-05-27_ADV_01_NA_01_EN.txt', 'text': '74\n\nDECLARATION OF JUDGE LACHS\n\nThe present case provides me with an occasion to return to the issue\nwhich I raised in the declaration which, as President of this Court, I\nappended to the Advisory Opinion of 12 July 1973 on the Application for\nReview of Judgement No. 158 of the United Nations Administrative Tribu-\nnal(I.C.J. Reports 1973, p. 214).\n\n‘Fourteen years ago I expressed reservations concerning the existing\nmachinery for the control of the administrative functions within the Secre-\ntariat of the United Nations. In one observation, I pointed out that the\nproceedings were far from satisfactory and that the choice did not “lie\nbetween judicial control of the kind exemplified in the present proceed-\nings and no judicial control at afl”. 1 maintained that the “choice ought\nsurely to lie between the existing machinery of control and one which\nwould be free from difficulty and more effective” and added “I see no\ncompelling reason, either in fact or in law, why an improved procedure\ncould not be envisaged”. My other observation was of a different charac-\nter, but also concerned the machinery of reviewing administrative deci-\nsions. I noted:\n\n“the discrepancy between the two systems of review : one established\nby Article XII of the Statute of the ILO Administrative Tribunal and\nthe other by Article 11 of that of the United Nations Administrative\nTribunal. Each of them [I continued] has been accepted by a number\nof organizations, mainly specialized agencies; and in the light of\nco-ordination which should be manifest between these organiza-\ntions, belonging as most of them do to the United Nations family, it is\nregrettable that divergences should exist in the nature of the protec-\ntion afforded to their staff members. There can be little doubt that, in\nthe interest of the administrations concerned, the staff members and\nthe organizations themselves, the procedures in question should be\nuniform.” (Ibid.)\n\nI was gratified to note that these observations did not remain without\neffect. Together with suggestions from other quarters, they were followed\nup by the General Assembly of the United Nations and the International\nCivil Service Commission, and eventually, on 19 December 1978, the\nGeneral Assembly requested:\n\n“the Secretary-General and his colleagues on the Administrative\nCommittee on Co-ordination to study the feasibility of establishing a\nsingle administrative tribunal for the entire common system and to\nreport to the General Assembly at the thirty-fourth session”\n(res. 33/119, sec. I, para. 2).\n\n60\n\x0c75 APPLICATION FOR REVIEW (DECL. LACHS)\n\nThe report produced in response by the Administrative Committee on\nCo-ordination advised against immediate steps to merge the UNAT and\nthe ILOAT but recommended the pursuit of harmonization. The General\nAssembly consequently requested further action along that line while\nmaintaining the final aim of establishing a single tribunal. Consultations\nwith legal advisers of international oganizations followed and a special\nconsultant produced a study on the subject.\n\nIt would be tedious to rehearse all the intervening stages whereby the\nSecretariat of the United Nations and the legal advisers of organizations\nin the common system were drawn into detailed study of the problem, but\nat length, after the submission of further reports and further urgings from\nthe Assembly, a set of proposals, prepared by the Secretariat, was submit-\nted to the thirty-ninth session of the General Assembly, which deferred\ntheir consideration to the fortieth on the recommendation of the Fifth\nCommittee.\n\nBasically these proposals were concerned with the harmonization of\nthe Statutes, rules and practices of the two Tribunals. They thus represent\na definite step forward towards the goal I envisaged, ï.e., finally, the crea-\ntion of a unified tribunal for organizations constituting members of the\nUnited Nations family.\n\nHowever, the General Assembly, at its fortieth session, decided\n(dec. 40/465) on a second postponement of its renewed consideration of\nthe report of the Secretary-General on the “feasibility of establishing a\nsingle administrative tribunal” (cf. report A/40/471 of 23 July 1985, pre-\nviously circulated as A/C.5/39/7 and Corr.l). Thus a definite decision\nhas still to be reached. The reform undertaken remains at the project stage,\nand no improvement has in fact yet materialized. Without ignoring the\nspecial difficulties which beset the Assembly in 1986 and by which it is still\nbeset, I sincerely hope that it will before long bring the concrete decisions\nwhich will indicate a real advance towards the goal.\n\nI welcome these developments, not only in themselves but because\nobservations made by a Member of the International Court of Justice\nhave been taken up by the United Nations General Assembly with a view\nto enacting some legislative measures in their respect. This indicates that,\nin its functioning, the principal judicial organ of the United Nations may\nnot only decide contentious issues or give advisory opinions, but also\ncontribute in practical terms to the improvement or operation of the law\nwithin the United Nations system.\n\n(Signed) Manfred LACHS.\n\n61\n'} | [
"{'filename': 'ICJ_072_ReviewJudgment333UNAT_CARAT_NA_1987-05-27_ADV_01_NA_01_EN.txt', 'text': '74\\n\\nDECLARATION OF JUDGE LACHS\\n\\nThe present case provides me with an occasion to return to the issue\\nwhich I raised in the declaration which, as President of this Court, I\\nappended to the Advisory Opinion of 12 July 1973 on the Application for\\nReview of Judgement No. 158 of the United Nations Administrative Tribu-\\nnal(I.C.J. Reports 1973, p. 214).\\n\\n‘Fourteen years ago I expressed reservations concerning the existing\\nmachinery for the control of the administrative functions within the Secre-\\ntariat of the United Nations. In one observation, I pointed out that the\\nproceedings were far from satisfactory and that the choice did not “lie\\nbetween judicial control of the kind exemplified in the present proceed-\\nings and no judicial control at afl”. 1 maintained that the “choice ought\\nsurely to lie between the existing machinery of control and one which\\nwould be free from difficulty and more effective” and added “I see no\\ncompelling reason, either in fact or in law, why an improved procedure\\ncould not be envisaged”.",
"My other observation was of a different charac-\\nter, but also concerned the machinery of reviewing administrative deci-\\nsions. I noted:\\n\\n“the discrepancy between the two systems of review : one established\\nby Article XII of the Statute of the ILO Administrative Tribunal and\\nthe other by Article 11 of that of the United Nations Administrative\\nTribunal. Each of them [I continued] has been accepted by a number\\nof organizations, mainly specialized agencies; and in the light of\\nco-ordination which should be manifest between these organiza-\\ntions, belonging as most of them do to the United Nations family, it is\\nregrettable that divergences should exist in the nature of the protec-\\ntion afforded to their staff members.",
"There can be little doubt that, in\\nthe interest of the administrations concerned, the staff members and\\nthe organizations themselves, the procedures in question should be\\nuniform.” (Ibid. )\\n\\nI was gratified to note that these observations did not remain without\\neffect. Together with suggestions from other quarters, they were followed\\nup by the General Assembly of the United Nations and the International\\nCivil Service Commission, and eventually, on 19 December 1978, the\\nGeneral Assembly requested:\\n\\n“the Secretary-General and his colleagues on the Administrative\\nCommittee on Co-ordination to study the feasibility of establishing a\\nsingle administrative tribunal for the entire common system and to\\nreport to the General Assembly at the thirty-fourth session”\\n(res.",
"33/119, sec. I, para. 2).\\n\\n60\\n\\x0c75 APPLICATION FOR REVIEW (DECL. LACHS)\\n\\nThe report produced in response by the Administrative Committee on\\nCo-ordination advised against immediate steps to merge the UNAT and\\nthe ILOAT but recommended the pursuit of harmonization. The General\\nAssembly consequently requested further action along that line while\\nmaintaining the final aim of establishing a single tribunal. Consultations\\nwith legal advisers of international oganizations followed and a special\\nconsultant produced a study on the subject.\\n\\nIt would be tedious to rehearse all the intervening stages whereby the\\nSecretariat of the United Nations and the legal advisers of organizations\\nin the common system were drawn into detailed study of the problem, but\\nat length, after the submission of further reports and further urgings from\\nthe Assembly, a set of proposals, prepared by the Secretariat, was submit-\\nted to the thirty-ninth session of the General Assembly, which deferred\\ntheir consideration to the fortieth on the recommendation of the Fifth\\nCommittee.\\n\\nBasically these proposals were concerned with the harmonization of\\nthe Statutes, rules and practices of the two Tribunals. They thus represent\\na definite step forward towards the goal I envisaged, ï.e., finally, the crea-\\ntion of a unified tribunal for organizations constituting members of the\\nUnited Nations family.\\n\\nHowever, the General Assembly, at its fortieth session, decided\\n(dec. 40/465) on a second postponement of its renewed consideration of\\nthe report of the Secretary-General on the “feasibility of establishing a\\nsingle administrative tribunal” (cf.",
"report A/40/471 of 23 July 1985, pre-\\nviously circulated as A/C.5/39/7 and Corr.l). Thus a definite decision\\nhas still to be reached. The reform undertaken remains at the project stage,\\nand no improvement has in fact yet materialized. Without ignoring the\\nspecial difficulties which beset the Assembly in 1986 and by which it is still\\nbeset, I sincerely hope that it will before long bring the concrete decisions\\nwhich will indicate a real advance towards the goal.\\n\\nI welcome these developments, not only in themselves but because\\nobservations made by a Member of the International Court of Justice\\nhave been taken up by the United Nations General Assembly with a view\\nto enacting some legislative measures in their respect.",
"This indicates that,\\nin its functioning, the principal judicial organ of the United Nations may\\nnot only decide contentious issues or give advisory opinions, but also\\ncontribute in practical terms to the improvement or operation of the law\\nwithin the United Nations system.\\n\\n(Signed) Manfred LACHS.\\n\\n61\\n'}"
]
| https://zenodo.org/record/7051934 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Lehman, J. (dissenting). It appears that about March twenty-second or twenty-third the plaintiff, a real estate broker, presented to the defendant an offer to lease the premises. The defendant at first objected to granting any lease because he desired to sell the property and did not wish to tie it up. The plaintiff told him‘ ‘ the best I could do at that time was a lease. ’ ’ He also told him that the proposed lessor ‘ ‘ was located in a building that was sold; that he had to get out; that he had a stock amounting to about $100,000 of plumbing supplies, very heavy material, and if he went in that building he could not possibly move out; that he would have to go to an expense of $15,000 or about $20,000 in order to get into that building, and that once he got in there it was absolutely certain he would buy the property notwithstanding the fact he wanted to lease it at that time.” The defendant then said: “ All right, if you say it is a sale I will go away from my stipulated rule and I will give a lease. ’ ’ The defendant desired to put a thirty-day cancellation clause in the *9lease. The plaintiff thereupon called up Mr. Perkins, the proposed lessor, from a telephone on the defendant’s desk and in his presence, and discussed with him the question of the cancellation clause. It was finally agreed that a ninety-day cancellation clause should be inserted upon the assurance of the defendant’s attorney that in any event it would take at least ninety days to put through a sale, and upon the argument of the plaintiff that “ Mr. Perkins could not rent anything anywhere else within ninety days and move, that it was a physical impossibility for him.” At that time it was agreed that the plaintiff should be paid five per cent commission on the lease. The plaintiff at the same interview took up with the defendant the question of commissions on a sale. He asked the defendant for the price of the property and the defendant stated the price was $30,000. The plaintiff then attempted to obtain a lower price and the defendant answered: “ Well, if you come around with the money — you are not ready to talk business,— if you come around with the money we will talk business.” The defendant asked the plaintiff how much his com-missions were, and plaintiff told him that his commissions were five per cent. There was some discussion as to this amount. The plaintiff testified “ so, anyway he said: ‘ If you get my price I don’t care, I will allow you five per cent commission.’ So I said to him, ‘ I will get you your price if you will help me. We have got to work together in this thing,’ I said ‘ I am certain that the man will buy, but we have got to work together on it.’ He said ‘All right.’ He said ‘All right. He will give me five per cent. ’ ” At a subsequent meeting a lease was executed to Perkins and the defendant then drew up and delivered to the plaintiff a paper which was introduced in evidence as plaintiff’s Exhibit 4. In that instrument the *10defendant grants to Perkins an option “ to purchase the property for the sum of $29,000 in cash or such other terms as may be agreeable to the party of the first part, which said option shall be good up to and including the 30th day of June, 1917, and in the event that the property is purchased by the party of the second part or his assign at the price named, the party of the first part will convey property by bargain and sale deed and will pay to J. I. Kislak of Hoboken, New Jersey, five per cent of such sum as and for a commission for securing such sale. ’ ’ The plaintiff never told Perkins of the existence of this instrument and Perldns never saw it until the day of the trial. Perkins moved into the premises and the plaintiff asked him several times to buy, but Perkins always told him that he was unable to buy, as he had no money to put into the property. Before the option ran out the plaintiff brought other prospective buyers to the premises “ so Perkins could see them.” He never obtained any offer from Perkins that the defendant would even consider. When the option was about to expire the plaintiff called upon the defendant. His testimony in regard to the interview had with him at that time is as follows: “ I think I spoke to Mr. Curry first. I said to Mr. Roberts: ‘ Mr. Perkins does not seem to be anxious to do business with me.’ I said, ‘ Will you allow Mr. Curry to help me make the deal? Let him work with Mr. Perkins.’ And Mr. Roberts said, ‘ Now your time is running out. I won’t have anything more to do with it.’ I said, ‘ Well, it’s my buyer. He will surely buy. What are you trying to do, force me out? ’ He said, ‘ I have nothing to say,’ he says. I said, ‘ Will you extend the time? ’ He said, ‘ No, I have got nothing to say. I am through.’ ” The plaintiff further testified that before seeing Mr. Roberts he had a talk with Curry, Roberts’ attorney, *11in which he told him that he would share his commissions with him if he would help sell the property, and Curry said he would see Boherts. Thereafter the plaintiff had no further negotiations with Boberts or Perldns, but on July sixth the defendant wrote to Perldns: ‘ ‘ While under no obligation, I think it but fair that I should call your personal attention to the fact that your option for purchase of property owned by this company and now occupied by the Arthur L. Perkins Co. expired with June thirtieth last, and we have again taken up negotiations looking towards sale.” Probably as a result of this letter Perkins thereafter arranged an interview with Boberts in which he asked him to let him remain in the premises until the expiration of the lease, but Boberts refused to do so, saying that he was trying to sell the property but thought it fair to give Perldns the first chance to buy. After some negotiations between the parties Perkins finally agreed to buy the property for the sum of $26,750, and the plaintiff now brings this action to recover five per cent commissions upon this sum. The plaintiff claims the so-called option contains an absolute agreement to pay the plaintiff five per cent upon any sale that may be made to Perkins, but I think Mr. Justice Finch’s view that this clause must be read in connection with the entire instrument is correct, and that the written agreement provided only for commissions if Perkins bought the property within the time limited by the option. I further agree with Mr. Justice Finch that if the parties by parol agreed that the defendant would pay the plaintiff five per cent commissions upon any sale of the property, proof of this parol agreement would not contravene the rule that a written agreement cannot be varied or enlarged by parol. In my opinion, however, the evidence shows clearly that if any agreement was made other than *12that embodied in the option, the agreement was merely to pay the plaintiff five per cent if he actually negotiated the sale as broker at a price satisfactory to the defendant, and there was no agreement to pay him any commission if Perkins bought the property after the expiration of the option unless the plaintiff was the procuring cause of the sale and brought the minds of the parties together. I think that the testimony which I have quoted shows this fact, and in addition, we have the testimony of a fellow broker of the plaintiff’s to the same effect. When the option expired the plaintiff had clearly not brought the minds of the parties together upon the terms of a sale. He himself stated so to Mr. Roberts and he tried to procure the aid of Mr. Roberts’ attorney by offering to share commissions with him, and at that time the defendant discharged the plaintiff as broker. Undoubtedly he had a right to do so unless the plaintiff had already brought the negotiations to a successful conclusion or was about to do so, and the defendant discharged him in bad faith, to prevent his earning commissions. In view, however, of the plaintiff’s own statement that “ Mr. Perldns does not seem to be anxious to do business with me,” and his offer to Curry to share commissions with him and his request to Roberts to allow Curry to help him, I hardly see how it is possible to claim that the defendant was acting in bad faith. He had accepted the plaintiff’s assurance that the lease was equivalent to a sale and had given the plaintiff three months to consummate the sale, and both the plaintiff and his witness, MacDonald, testified that the option embodied the agreement between the parties. It seems to me that we would stretch the testimony beyond all reason if we were to hold that the defendant did not thereafter have the right to negotiate personally with Perkins or any other prospective pur*13chaser without malting himself liable to pay the plaintiff five per cent commissions on the sale. In this connection it must be remembered, too, that even according to the plaintiff’s story he was to receive five per cent commissions only if he procured a purchaser at a price acceptable to the defendant. The only price mentioned then by the defendant was $29,000, and the price actually agreed upon by the parties $26,750, and the plaintiff had nothing to do with the fixing of this price. It is not a case where a broker introduces a prospective purchaser and the owner then takes the negotiations out of the broker’s hands and conducts them himself, for in this case the plaintiff had procured Perkins as a lessor and has been paid his commissions upon the lease, and had asked and obtained an option for three months in which he protected his right to commissions during that time. When he admitted failure to procure an acceptable offer from the lessor within that time, the defendant had a right, in my opinion, to proceed to negotiate with his lessor himself and to try to reach an agreement with him without making himself liable for any commissions. Mr. Justice Finch argues that the conversation between the plaintiff and the defendant about the time the contract expired referred only to an extension of the option, but I think that the testimony I have quoted shows clearly that Boberts revoked and cancelled the plaintiff’s employment as a broker. If there can be any doubt on this subject that must disappear by reason of the further testimony of Kislak that the defendant said to him ‘ ‘ that he would not be bothered with him any more and he will attend to his own business.” However, even if we should adopt the construction placed upon this conversation by Mr. Justice Finch, it seems to me that the plaintiff’s position would be, if anything, worse, for after that time thej *14plaintiff apparently had no further negotiations and actually abandoned the work, and can therefore not recover unless there is proof that at that time he had really consummated the sale, and the proof is entirely to the contrary. All that he has shown is that he induced the defendant to make a lease to Perkins by arguing that if such a lease were made Perkins would be in a position which would necessitate his subsequently buying the property, and that as a matter of fact the lease did put Perkins into a position in which he found it advisable to purchase the property, and Perkins and the defendant thereafter, without any further interposition of the plaintiff and after his discharge, came to an agreement of purchase upon terms acceptable to both. For these reasons I think that the judgment should be reversed and the complaint dismissed. Judgment reversed and new trial ordered, with costs to appellant to abide the event. | 01-08-2022 | [
"Lehman, J. (dissenting). It appears that about March twenty-second or twenty-third the plaintiff, a real estate broker, presented to the defendant an offer to lease the premises. The defendant at first objected to granting any lease because he desired to sell the property and did not wish to tie it up. The plaintiff told him‘ ‘ the best I could do at that time was a lease. ’ ’ He also told him that the proposed lessor ‘ ‘ was located in a building that was sold; that he had to get out; that he had a stock amounting to about $100,000 of plumbing supplies, very heavy material, and if he went in that building he could not possibly move out; that he would have to go to an expense of $15,000 or about $20,000 in order to get into that building, and that once he got in there it was absolutely certain he would buy the property notwithstanding the fact he wanted to lease it at that time.” The defendant then said: “ All right, if you say it is a sale I will go away from my stipulated rule and I will give a lease.",
"’ ’ The defendant desired to put a thirty-day cancellation clause in the *9lease. The plaintiff thereupon called up Mr. Perkins, the proposed lessor, from a telephone on the defendant’s desk and in his presence, and discussed with him the question of the cancellation clause. It was finally agreed that a ninety-day cancellation clause should be inserted upon the assurance of the defendant’s attorney that in any event it would take at least ninety days to put through a sale, and upon the argument of the plaintiff that “ Mr. Perkins could not rent anything anywhere else within ninety days and move, that it was a physical impossibility for him.” At that time it was agreed that the plaintiff should be paid five per cent commission on the lease.",
"The plaintiff at the same interview took up with the defendant the question of commissions on a sale. He asked the defendant for the price of the property and the defendant stated the price was $30,000. The plaintiff then attempted to obtain a lower price and the defendant answered: “ Well, if you come around with the money — you are not ready to talk business,— if you come around with the money we will talk business.” The defendant asked the plaintiff how much his com-missions were, and plaintiff told him that his commissions were five per cent. There was some discussion as to this amount. The plaintiff testified “ so, anyway he said: ‘ If you get my price I don’t care, I will allow you five per cent commission.’ So I said to him, ‘ I will get you your price if you will help me. We have got to work together in this thing,’ I said ‘ I am certain that the man will buy, but we have got to work together on it.’ He said ‘All right.’ He said ‘All right.",
"He will give me five per cent. ’ ” At a subsequent meeting a lease was executed to Perkins and the defendant then drew up and delivered to the plaintiff a paper which was introduced in evidence as plaintiff’s Exhibit 4. In that instrument the *10defendant grants to Perkins an option “ to purchase the property for the sum of $29,000 in cash or such other terms as may be agreeable to the party of the first part, which said option shall be good up to and including the 30th day of June, 1917, and in the event that the property is purchased by the party of the second part or his assign at the price named, the party of the first part will convey property by bargain and sale deed and will pay to J. I. Kislak of Hoboken, New Jersey, five per cent of such sum as and for a commission for securing such sale.",
"’ ’ The plaintiff never told Perkins of the existence of this instrument and Perldns never saw it until the day of the trial. Perkins moved into the premises and the plaintiff asked him several times to buy, but Perkins always told him that he was unable to buy, as he had no money to put into the property. Before the option ran out the plaintiff brought other prospective buyers to the premises “ so Perkins could see them.” He never obtained any offer from Perkins that the defendant would even consider. When the option was about to expire the plaintiff called upon the defendant. His testimony in regard to the interview had with him at that time is as follows: “ I think I spoke to Mr. Curry first.",
"I said to Mr. Roberts: ‘ Mr. Perkins does not seem to be anxious to do business with me.’ I said, ‘ Will you allow Mr. Curry to help me make the deal? Let him work with Mr. Perkins.’ And Mr. Roberts said, ‘ Now your time is running out. I won’t have anything more to do with it.’ I said, ‘ Well, it’s my buyer. He will surely buy. What are you trying to do, force me out? ’ He said, ‘ I have nothing to say,’ he says. I said, ‘ Will you extend the time? ’ He said, ‘ No, I have got nothing to say. I am through.’ ” The plaintiff further testified that before seeing Mr. Roberts he had a talk with Curry, Roberts’ attorney, *11in which he told him that he would share his commissions with him if he would help sell the property, and Curry said he would see Boherts. Thereafter the plaintiff had no further negotiations with Boberts or Perldns, but on July sixth the defendant wrote to Perldns: ‘ ‘ While under no obligation, I think it but fair that I should call your personal attention to the fact that your option for purchase of property owned by this company and now occupied by the Arthur L. Perkins Co. expired with June thirtieth last, and we have again taken up negotiations looking towards sale.” Probably as a result of this letter Perkins thereafter arranged an interview with Boberts in which he asked him to let him remain in the premises until the expiration of the lease, but Boberts refused to do so, saying that he was trying to sell the property but thought it fair to give Perldns the first chance to buy.",
"After some negotiations between the parties Perkins finally agreed to buy the property for the sum of $26,750, and the plaintiff now brings this action to recover five per cent commissions upon this sum. The plaintiff claims the so-called option contains an absolute agreement to pay the plaintiff five per cent upon any sale that may be made to Perkins, but I think Mr. Justice Finch’s view that this clause must be read in connection with the entire instrument is correct, and that the written agreement provided only for commissions if Perkins bought the property within the time limited by the option. I further agree with Mr. Justice Finch that if the parties by parol agreed that the defendant would pay the plaintiff five per cent commissions upon any sale of the property, proof of this parol agreement would not contravene the rule that a written agreement cannot be varied or enlarged by parol. In my opinion, however, the evidence shows clearly that if any agreement was made other than *12that embodied in the option, the agreement was merely to pay the plaintiff five per cent if he actually negotiated the sale as broker at a price satisfactory to the defendant, and there was no agreement to pay him any commission if Perkins bought the property after the expiration of the option unless the plaintiff was the procuring cause of the sale and brought the minds of the parties together.",
"I think that the testimony which I have quoted shows this fact, and in addition, we have the testimony of a fellow broker of the plaintiff’s to the same effect. When the option expired the plaintiff had clearly not brought the minds of the parties together upon the terms of a sale. He himself stated so to Mr. Roberts and he tried to procure the aid of Mr. Roberts’ attorney by offering to share commissions with him, and at that time the defendant discharged the plaintiff as broker. Undoubtedly he had a right to do so unless the plaintiff had already brought the negotiations to a successful conclusion or was about to do so, and the defendant discharged him in bad faith, to prevent his earning commissions. In view, however, of the plaintiff’s own statement that “ Mr. Perldns does not seem to be anxious to do business with me,” and his offer to Curry to share commissions with him and his request to Roberts to allow Curry to help him, I hardly see how it is possible to claim that the defendant was acting in bad faith. He had accepted the plaintiff’s assurance that the lease was equivalent to a sale and had given the plaintiff three months to consummate the sale, and both the plaintiff and his witness, MacDonald, testified that the option embodied the agreement between the parties.",
"It seems to me that we would stretch the testimony beyond all reason if we were to hold that the defendant did not thereafter have the right to negotiate personally with Perkins or any other prospective pur*13chaser without malting himself liable to pay the plaintiff five per cent commissions on the sale. In this connection it must be remembered, too, that even according to the plaintiff’s story he was to receive five per cent commissions only if he procured a purchaser at a price acceptable to the defendant. The only price mentioned then by the defendant was $29,000, and the price actually agreed upon by the parties $26,750, and the plaintiff had nothing to do with the fixing of this price. It is not a case where a broker introduces a prospective purchaser and the owner then takes the negotiations out of the broker’s hands and conducts them himself, for in this case the plaintiff had procured Perkins as a lessor and has been paid his commissions upon the lease, and had asked and obtained an option for three months in which he protected his right to commissions during that time.",
"When he admitted failure to procure an acceptable offer from the lessor within that time, the defendant had a right, in my opinion, to proceed to negotiate with his lessor himself and to try to reach an agreement with him without making himself liable for any commissions. Mr. Justice Finch argues that the conversation between the plaintiff and the defendant about the time the contract expired referred only to an extension of the option, but I think that the testimony I have quoted shows clearly that Boberts revoked and cancelled the plaintiff’s employment as a broker. If there can be any doubt on this subject that must disappear by reason of the further testimony of Kislak that the defendant said to him ‘ ‘ that he would not be bothered with him any more and he will attend to his own business.” However, even if we should adopt the construction placed upon this conversation by Mr. Justice Finch, it seems to me that the plaintiff’s position would be, if anything, worse, for after that time thej *14plaintiff apparently had no further negotiations and actually abandoned the work, and can therefore not recover unless there is proof that at that time he had really consummated the sale, and the proof is entirely to the contrary.",
"All that he has shown is that he induced the defendant to make a lease to Perkins by arguing that if such a lease were made Perkins would be in a position which would necessitate his subsequently buying the property, and that as a matter of fact the lease did put Perkins into a position in which he found it advisable to purchase the property, and Perkins and the defendant thereafter, without any further interposition of the plaintiff and after his discharge, came to an agreement of purchase upon terms acceptable to both. For these reasons I think that the judgment should be reversed and the complaint dismissed. Judgment reversed and new trial ordered, with costs to appellant to abide the event."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5416945/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
#25584-rev & rem-GAS
2012 S.D. 19
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ELMER WAYNE ZAHN, JR., Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE TONY PORTRA Judge
* * * * MARTY J. JACKLEY Attorney General
FRANK GEAGHAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
THOMAS M. TOBIN of Tonner, Tobin and King, LLP Aberdeen, South Dakota Attorneys for defendant and appellant.
* * * * ARGUED ON MARCH 23, 2011
OPINION FILED 03/14/12 #25584
SEVERSON, Justice
[¶1.] Without obtaining a search warrant, police attached a global
positioning system (GPS) device to Elmer Wayne Zahn Jr.’s vehicle. The GPS
device enabled officers to track and record the speed, time, direction, and geographic
location of Zahn’s vehicle within five to ten feet for nearly a month. Police used the
information they gathered to obtain a search warrant for two storage units that
Zahn frequently visited. Officers recovered drug paraphernalia and approximately
one pound of marijuana from a freezer in one of the storage units. Before trial, the
trial court denied Zahn’s motion to suppress the evidence that the officers
discovered during the execution of the search warrant. Zahn appeals his conviction
of several drug possession charges, arguing that the trial court erred by denying his
motion to suppress. We reverse.
Background
[¶2.] Zahn and his wife, Ranee, lived in Gettysburg, South Dakota. In June
2008, Ranee passed away while visiting her daughter, Katie Circle Eagle, in
Aberdeen. Because Ranee was not in the care of a physician when she died, police
were called to Circle Eagle’s residence to investigate the death. Zahn was present
when the officers arrived but left before they interviewed him.
[¶3.] As part of the death investigation, the officers searched the bedroom
where Ranee died. They found a large, brown suitcase in a bedroom closet. The
suitcase contained a digital scale and approximately 120 quart-sized plastic
containers. A strong odor of raw marijuana emanated from several of the
containers. The officers also found $8,890 cash in a nylon shoulder bag in one
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corner of the bedroom. A drug dog later alerted to the cash as having the odor of
marijuana or some narcotic. Their suspicions aroused, the officers attempted to
contact Zahn, but they were unable to do so.
[¶4.] In November 2008, Zahn was arrested for driving while intoxicated.
The arresting officers searched Zahn’s vehicle. They found a black duffel bag in the
backseat that contained an unmarked pill bottle filled with a green, leafy substance.
Tests later confirmed that the substance was marijuana. The officers also recovered
a large amount of cash from the duffel bag, from a purse in the cargo area of the
vehicle, and from Zahn’s person. In total, the officers discovered nearly $10,000
cash. Zahn was charged with and pleaded guilty to driving under the influence,
possession of two ounces or less of marijuana, and possession of drug paraphernalia.
[¶5.] On March 3, 2009, Tanner Jondahl, a detective with the Aberdeen
Police Department, attached a GPS device to the undercarriage of Zahn’s vehicle
while it was parked in the private parking lot of an apartment complex. The GPS
device was attached to Zahn’s vehicle with a magnet and did not interfere with the
operation of his vehicle. Because the GPS device was battery-powered, it did not
draw power from Zahn’s vehicle. For twenty-six days, it continuously transmitted
the geographic location of Zahn’s vehicle, enabling officers to pinpoint his location
within five to ten feet, monitor his speed, time, and direction, and detect non-
movement. A computer at the Brown County Sheriff’s Office recorded the
movements of Zahn’s vehicle.
[¶6.] Using the GPS device, Detective Jondahl tracked Zahn’s movements
for twenty-six days in March 2009. He observed that Zahn’s vehicle traveled to a
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storage unit at Plaza Rental five times and a storage unit at Store-It four times.
The visits to the storage units generally lasted only a few minutes. Detective
Jondahl later confirmed that a Plaza Rental storage unit was rented to Ranee and
that a Store-It storage unit was rented to Alan Zahn, Zahn’s brother. Detective
Jondahl represented that, based on his training and experience, he believed that
Zahn kept controlled substances in the storage units and was involved in drug
distribution.
[¶7.] On March 29, 2009, Zahn traveled to Gettysburg, South Dakota.
Because Zahn was out on bond at the time, he was not permitted to leave Brown
County. Officers used the GPS device to determine that Zahn left Brown County,
and Zahn was arrested for the bond violation when he returned to Aberdeen. A
search of his person revealed approximately $2,000 cash.
[¶8.] Later that day, Detective Jondahl submitted an affidavit in support of
a search warrant for the Plaza Rental storage unit, the Store-It storage unit, and
Zahn’s person. A judge signed the search warrant, and Detective Jondahl, along
with several other officers, executed the warrant. During the search of the Store-It
storage unit, a drug dog alerted to a freezer that was hidden from view by a wall of
empty cardboard boxes. In the freezer, the officers discovered two jars filled with
nearly one ounce of a finely-ground, green substance that emitted a strong odor of
raw marijuana. A large suitcase in the freezer contained five four-ounce plastic
bags of a green, leafy substance. Tests later confirmed that the substance in both
the jars and the plastic bags was marijuana. The freezer contained several other
items, including a glass pipe, three empty plastic bags, and several unused plastic
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containers. Various boxes and cardboard tubes bearing Zahn’s name were also
recovered from the Store-It storage unit. No evidence was recovered from the Plaza
Rental storage unit. A urine sample taken from Zahn that day tested negative for
marijuana ingestion.
[¶9.] In April 2009, a Brown County grand jury indicted Zahn on one count
of possession with the intent to distribute one pound or more of marijuana and one
count of possession of one to ten pounds of marijuana. Additionally, Zahn was
charged with possession of drug paraphernalia. Zahn filed a motion to suppress the
evidence obtained through the use of the GPS device. The trial court denied the
motion after a hearing on the matter. The case proceeded to a court trial in
February 2010, and Zahn was convicted of all charges. Zahn appeals.
Standard of Review
[¶10.] Our standard of review of motions to suppress is well settled. “A
motion to suppress based on an alleged violation of a constitutionally protected
right is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, ¶ 8, 791
N.W.2d 791, 794 (quoting State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377).
“The trial court’s factual findings are reviewed under the clearly erroneous
standard” of review. Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).
However, “[o]nce the facts have been determined . . . the application of a legal
standard to those facts is a question of law reviewed de novo.” Id. (quoting
Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).
-4- #25584
Analysis and Decision
[¶11.] Zahn challenges the use of the GPS device to monitor his activities for
nearly a month under the Fourth Amendment to the United States Constitution
and Article VI, § 11, of the South Dakota Constitution. The Fourth Amendment to
the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Similarly, Article VI, § 11, of the South Dakota Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.
[¶12.] While Zahn challenges the use of the GPS device to monitor his
activities under Article VI, § 11, of the South Dakota Constitution, he has not
asserted a basis to distinguish the protections that the South Dakota Constitution
provides from those that the United States Constitution provides. See State v.
Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114, 120 (“Counsel advocating a separate
constitutional interpretation ‘must demonstrate that the text, history, or purpose of
a South Dakota constitutional provision supports a different interpretation from the
corresponding federal provision.’” (quoting State v. Schwartz, 2004 S.D. 123, ¶ 57,
689 N.W.2d 430, 445)). We thus decide this case on federal constitutional principles
and will not address the question of whether the South Dakota Constitution affords
South Dakotans greater protection against the use of GPS devices to monitor their
-5- #25584
activities over an extended period of time. See State v. Opperman, 247 N.W.2d 673,
675 (S.D. 1976) (recognizing that “this [C]ourt has the power to provide an
individual with greater protection under the state constitution than does the United
States Supreme Court under the federal constitution”).
Is the Use of a GPS Device a Search?
[¶13.] In the recent case of United States v. Jones, the United States Supreme
Court addressed the issue of whether the attachment of a GPS device to an
individual’s vehicle, and the subsequent use of the device to track the vehicle’s
movements, constitutes a search under the Fourth Amendment. 565 U.S. __, 132 S.
Ct. 945, __ L. Ed. 2d __ (2012). In Jones, the Government applied for and was
granted a search warrant authorizing it to install a GPS tracking device on a
vehicle that was registered to Jones’s wife. Id. at __, 132 S. Ct. at 948. One day
after the warrant expired, the Government installed the device.1 Id. The
Government then used the device to track the vehicle’s movements for twenty-eight
days. Id.
[¶14.] The Government later secured an indictment charging Jones and other
alleged co-conspirators with several crimes, including conspiracy to distribute and
to possess with intent to distribute cocaine and cocaine base. Id. Prior to trial,
Jones moved to suppress the evidence the Government obtained through the use of
1. The warrant authorized the Government to install the GPS device in the District of Columbia within ten days of the issuance of the warrant. Id. The Government installed the GPS device eleven days after the warrant was issued. At the time the device was installed, the vehicle was located in Maryland. Id.
-6- #25584
the GPS device. Id. The District Court held that the data obtained from the GPS
device while the vehicle was on public streets was admissible because “a person
traveling in an automobile on public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another.” Id. (quoting United States v.
Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006)). The United States Court of Appeals
for the District of Columbia Circuit reversed, holding that the admission of the
evidence obtained by the Government through the warrantless use of a GPS device
violated the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568
(D.C. Cir. 2010).
[¶15.] The United States Supreme Court granted certiorari and affirmed the
holding of the D.C. Circuit. Jones, 565 U.S. at __, 132 S. Ct. at 954. However, in
doing so, the Court did not apply the Fourth Amendment analysis first introduced
by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 88 S.
Ct. 507, 19 L. Ed. 2d 576 (1967), which centers on whether an individual has a
“reasonable expectation of privacy” in the area searched. See Thunder, 2010 S.D. 3,
¶ 16, 777 N.W.2d at 378 (applying the Katz “reasonable expectation of privacy”
test). Instead, the Court applied a “physical trespass” test to determine whether
the Government’s conduct constituted a Fourth Amendment search.
[¶16.] The Court observed that the Fourth Amendment protects “the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” Jones, 565 U. S. at __, 132 S. Ct. at 949. The
Court went on to state, “It is beyond dispute that a vehicle is an ‘effect’ as that term
is used in the Amendment.” Id. (citing United States v. Chadwick, 433 U.S. 1, 12,
-7- #25584
97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977)). Thus, the Court unequivocally held
that “the Government’s installation of a GPS device on a target’s vehicle, and its use
of that device to monitor the vehicle’s movements, constitutes a ‘search.’” Id.
[¶17.] In Jones, the Court acknowledged two separate tests for identifying a
Fourth Amendment search: the “physical trespass test” and the Katz “reasonable
expectation of privacy” test. Justice Scalia, writing for the majority, determined it
was unnecessary to reach the question of whether Jones had a “reasonable
expectation of privacy” in the vehicle or in the whole of his movements on public
roads. The majority explained:
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding.
Id. at __, 132 S. Ct. at 950 (internal citations omitted).
[¶18.] However, Justice Alito wrote a concurring opinion, which was joined by
Justices Ginsburg, Breyer, and Kagan. Id. at __, 132 S. Ct. at 957 (Alito, J.,
concurring). Justice Alito characterized the majority’s holding as “unwise,” stating,
“It strains the language of the Fourth Amendment; it has little if any support in
current Fourth Amendment case law; and it is highly artificial.” Id. at __, 132 S. Ct.
at 958. Justice Alito reasoned that the case should be analyzed “by asking whether
-8- #25584
[Jones’s] reasonable expectations of privacy were violated by the long-term
monitoring of the movements of the vehicle he drove.” Id. Without identifying the
specific point at which the surveillance became a Fourth Amendment search,
Justice Alito concluded that the continual monitoring of Jones’s movements during
a four-week period violated Jones’s reasonable expectations of privacy. Justice Alito
explained, “In this case, for four weeks, law enforcement agents tracked every
movement that [Jones] made in the vehicle he was driving. We need not identify
with precision the point at which the tracking of this vehicle became a search, for
the line was surely crossed before the 4-week mark.”2 Id. at __, 132 S. Ct. at 964.
[¶19.] In this case, law enforcement attached a GPS device to Zahn’s vehicle.
It then monitored Zahn’s movements for twenty-six days. In accordance with the
majority’s opinion in Jones, we hold that law enforcement’s installation of a GPS
device on Zahn’s vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a Fourth Amendment search under the “physical trespass
test.”
2. Justice Sotomayor joined the majority but wrote a separate concurring opinion. Id. at __, 132 S. Ct. at 954 (Sotomayor, J., concurring). She agreed with the majority that the Government conducted a Fourth Amendment search when it physically invaded Jones’s personal property to gather information. Id. Justice Sotomayor thus found it unnecessary to address the issue of whether Jones’s reasonable expectations of privacy had been violated. Nonetheless, Justice Sotomayor indicated that she agreed with Justice Alito’s conclusion that, “at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” Id. at __, 132 S. Ct. at 955. Thus, at least five Justices reasoned that prolonged GPS monitoring violates an individual’s reasonable expectation of privacy.
-9- #25584
[¶20.] Law enforcement’s actions also constituted a search under the Katz
“reasonable expectation of privacy” test.3 This Court has stated, “A two-part test
determines whether an individual has a reasonable expectation of privacy” in a
particular area. Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 378 (citing Cordell v.
Weber, 2003 S.D. 143, ¶ 12, 673 N.W.2d 49, 53). “First, we consider whether [an
individual] exhibited an actual subjective expectation of privacy in the area
searched.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Second, we
consider whether society is prepared to recognize that expectation of privacy as
reasonable.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Whether
[an individual] has a legitimate expectation of privacy in [an area] is determined on
a ‘case-by-case basis, considering the facts of each particular situation.’”4 Id.
(quoting State v. Hess, 2004 S.D. 60, ¶ 17, 680 N.W.2d 314, 322).
3. We find it appropriate to address this issue because, in arguing this case, both parties focused on the application of the Katz “reasonable expectation of privacy” test. At the time this case was argued, the United States Supreme Court had not yet decided Jones.
4. Prior to Jones, courts that were faced with the issue of whether the use of a GPS device to monitor an individual’s movements was a Fourth Amendment search applied the Katz “reasonable expectation of privacy” test. For example, two federal circuit courts held that the use of a GPS device to monitor an individual’s activities on public roads did not amount to a Fourth Amendment search under the Katz “reasonable expectation of privacy” test. See United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), vacated, 2012 WL 538289; United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated, 2012 WL 53827. One federal appellate court reached the opposite conclusion. See Maynard, 615 F.3d 544, aff’d, Jones, 565 U.S. __, 132 S. Ct. 945.
A number of state courts held that the use of a GPS device to monitor an individual’s activities was not a Fourth Amendment search. See Devega v. State, 689 S.E.2d 293 (Ga. 2010); Stone v. State, 941 A.2d 1238 (Md. Ct. Spec. (continued . . .) - 10 - #25584
[¶21.] We first address whether Zahn had a subjective expectation of privacy
in the whole of his movements for nearly a month. Ordinarily, “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S. Ct. at 511 (citing
Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 427, 17 L. Ed. 2d 312
(1966); United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202
(1927)). “But what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” Id. (citing Rios v. United States, 364 U.S.
253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960)) (citation omitted).
[¶22.] In this case, the State argues that Zahn could not have had a
subjective expectation of privacy in his movements because he voluntarily exposed
his movements to the public. We disagree. While a reasonable person understands
that his movements on a single journey are conveyed to the public, he expects that
those individual movements will remain “disconnected and anonymous.” Maynard,
615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would
observe the whole of Zahn’s movements for nearly a month “is not just remote, it is
________________________ (. . . continued) App. 2008); Osburn v. State, 44 P.3d 523 (Nev. 2002); People v. Gant, 802 N.Y.S.2d 839 (N.Y. Crim. Ct. 2005); State v. Johnson, 944 N.E.2d 270 (Ohio Ct. App. 2010), appeal docketed, No. 2011-0033 (Ohio 2011); Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), aff’d en banc, 706 S.E.2d 914 (2011); State v. Sveum, 769 N.W.2d 53 (Wis. Ct. App. 2009).
Three state courts held the warrantless use of a GPS device to monitor an individual’s movement was impermissible under their respective state constitutions. See People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988); State v. Jackson, 76 P.3d 217 (Wash. 2003).
- 11 - #25584
essentially nil.” Id. at 560. The prolonged use of a GPS device in this case enabled
officers to determine Zahn’s speed, time, direction, and geographic location within
five to ten feet at any time. It also enabled officers to use the sum of the recorded
information to discover patterns in the whole of Zahn’s movements for twenty-six
days. The prolonged GPS surveillance of Zahn’s vehicle revealed more than just the
movements of the vehicle on public roads; it revealed an intimate picture of Zahn’s
life and habits. We thus believe that Zahn had a subjective expectation of privacy
in the whole of his movements. This subjective expectation of privacy was not
defeated because Zahn’s individual movements were exposed to the public.
[¶23.] We next consider whether Zahn’s expectation of privacy in the whole of
his movements for nearly a month was reasonable. After all, his personal desire for
privacy alone, no matter how earnestly held, does not trigger the protections of the
Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 740-41, 99 S. Ct. 2577,
2580, 61 L. Ed. 2d 220 (1979) (citations omitted).
[¶24.] The State argues that, under United States v. Knotts, 460 U.S. 276,
103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983), Zahn could not have possessed a reasonable
expectation of privacy in his movements on public roads. In Knotts, the United
States Supreme Court considered whether the use of a tracking device to monitor
an individual’s activities during a single journey amounted to a Fourth Amendment
search. Id. at 285, 103 S. Ct. at 1087. The Court held that “[a] person travelling in
an automobile on public thoroughfares has no reasonable expectation of privacy in
his movements from one place to another.” Id. at 281, 103 S. Ct. at 1085. The
- 12 - #25584
Court noted that police efficiency does not equate with unconstitutionality. Id. at
284, 103 S. Ct. at 1086.
[¶25.] By today’s standards, the beeper used in Knotts was a rudimentary
tracking device. It enabled investigators to maintain visual contact with Knotts’s
vehicle on a single journey, but it could not indicate with any degree of accuracy
where Knotts’s vehicle was located. Id. at 278, 103 S. Ct. at 1083. And it certainly
could not record Knotts’s movements over an extended period of time. The Court in
Knotts expressly declined to address whether twenty-four hour surveillance over an
extended period of time is a Fourth Amendment search. The Court stated, “[I]f such
dragnet type law enforcement practices as [Knotts] envisions should eventually
occur, there will be time enough then to determine whether different constitutional
principles may be applicable.” Id. at 284, 103 S. Ct. at 1086.
[¶26.] In Jones, the majority did not reach the question of whether the use of
a GPS device to monitor an individual’s activities for an extended period of time
violates an individual’s “reasonable expectations of privacy.” Jones, 565 U.S. at __,
132 S. Ct. at 950. But in his concurrence, Justice Alito recognized that
longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every single movement of an individual’s car for a very long period.
Id. at __, 132 S. Ct. at 964 (Alito, J., concurring). Justice Sotomayor expressly
stated in her concurrence, “I agree with Justice Alito that, at the very least, ‘longer
term GPS monitoring in investigations of most offenses impinges on expectations of
privacy.’” Id. at __, 132 S. Ct. at 955 (Sotomayor, J., concurring).
- 13 - #25584
[¶27.] Technology has advanced exponentially since the United States
Supreme Court decided Knotts twenty-nine years ago. Current GPS technology is
uniquely intrusive in the wealth of highly-detailed information it gathers. See
Renee McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth
Amendment, 55 U.C.L.A. L. Rev. 409, 456-57 (2007). The GPS device used in this
case continuously transmitted the geographic location of Zahn’s vehicle to a
computer at the Brown County Sheriff’s Department. It enabled officers to not only
determine his speed, direction, and geographic location within five to ten feet at any
time, but to also use the recorded information to discover patterns in the whole of
his movements for nearly a month.
[¶28.] When the use of a GPS device enables police to gather a wealth of
highly-detailed information about an individual’s life over an extended period of
time, its use violates an expectation of privacy that society is prepared to recognize
as reasonable.5 The use of a GPS device to monitor Zahn’s activities for twenty-six
5. We do not believe that the popularity of GPS technology constitutes a surrender of personal privacy. Weaver, 909 N.E.2d at 1200. In his concurrence in Jones, Justice Alito accepted this proposition in concluding that the use of a GPS device to monitor of Jones’s movements during a four- week period violated Jones’s reasonable expectations of privacy. Jones, 565 U.S. at __, 132 S. Ct. at 964 (Alito, J., concurring). However, Justice Alito indicated that future advances in technology may influence society’s expectation of privacy. He explained,
the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of (continued . . .) - 14 - #25584
days was therefore a Fourth Amendment search under the Katz “reasonable
expectation of privacy” test.
Does the Fourth Amendment Require a Warrant to Use a GPS Device?
[¶29.] Detective Jondahl did not obtain a search warrant before he used the
GPS device to monitor Zahn’s activities for nearly a month. “[A] warrantless search
and seizure is per se unreasonable” unless it falls within an exception to the
warrant requirement. State v. Sweedland, 2006 S.D. 77, ¶ 14, 721 N.W.2d 409, 413
(quoting State v. Luxem, 324 N.W.2d 273, 279 (S.D. 1982)). “If a warrantless search
or seizure is conducted, it is the State’s burden to show that the entry into the
protected area was justified.” Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting
Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378).
[¶30.] The United States Supreme Court has carved out a number of “well-
delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S. Ct.
at 514. The Court has found that the presence of exigent circumstances excuses a
warrantless search and that a warrantless search and seizure of an individual for
the limited purpose of briefly investigating reasonably suspicious behavior is
permissible. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Consent
searches, searches conducted incident to a valid arrest, automobile searches, and
________________________ (. . . continued) privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.
Id. at 962.
- 15 - #25584
searches of items in plain view are also allowed without a warrant.6 None of these
exceptions readily applies to the use of a GPS device to monitor an individual’s
activities over an extended period of time.
[¶31.] We thus hold that the attachment and use of a GPS device to monitor
an individual’s activities over an extended period of time requires a search warrant.
Because the unfettered use of surveillance technology could fundamentally alter the
relationship between our government and its citizens, we require oversight by a
neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting
Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment
and use of the GPS device to monitor Zahn’s activities for nearly a month was
unlawful, and the evidence obtained through the use of the GPS device should be
suppressed.
[¶32.] By our holding today, we do not deny police the ability to use this
valuable law enforcement tool. We recognize that police must be allowed to use
developing technology in the “often competitive enterprise of ferreting out crime.”
Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462
U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)). The Fourth
Amendment “cannot sensibly be read to mean that police [should] be no more
6. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (searches of items in plain view); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (searches conducted incident to arrest); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (automobile searches).
- 16 - #25584
efficient in the twenty-first century than they were in the eighteenth” century.
United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), cert. denied, 552 U.S.
883, 128 S. Ct. 291, 169 L. Ed. 2d 140 (2007). But police must obtain a warrant
before they attach and use a GPS device to monitor an individual’s activities over an
extended period of time.
[¶33.] Our disposition of this case makes it unnecessary to address Zahn’s
additional challenges to this conviction.
[¶34.] Reversed and remanded for additional proceedings.
[¶35.] GILBERTSON, Chief Justice, and MEIERHENRY, Retired Justice,
concur.
[¶36.] KONENKAMP and ZINTER, Justices, concur with a writing.
ZINTER, Justice (concurring).
[¶37.] The majority opinion in United States v. Jones, 565 U.S. ___, 132 S. Ct.
945, 181 L. Ed. 2d 911 (2012), resolves a virtually identical case. Therefore, I join
the Court’s opinion insofar as it holds this was an unlawful search under Jones’s
physical trespass test. See id. at ___, 132 S. Ct. at 949 (“We hold that the
Government’s installation of a GPS device on a target’s vehicle, and its use of that
device to monitor the vehicle’s movements, constitutes a ‘search.’” (footnote
omitted)); see supra ¶¶ 15, 19. However, it must be pointed out that the majority7 of
7. Justice Sotomayor, the fifth vote, did suggest that GPS monitoring would impinge on expectations of privacy in some cases. Jones, 565 U.S. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring) (“I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’”). Nonetheless, Justice Sotomayor did (continued . . .) - 17 - #25584
the Supreme Court expressly declined to adopt Justice Alito’s concurrence arguing
for application of the Katz “reasonable expectation of privacy” test. In fact, the
majority pointed out a number of problems in applying the reasonable expectation
of privacy test in this context. The majority concluded that the Court would “have
to grapple with these ‘vexing problems’ in some future case where a classic
trespassory search is not involved and resort must be had to Katz analysis; but
there is no reason for rushing forward to resolve them here.” Jones, 565 U.S. at ___,
132 S. Ct. at 954.
[¶38.] Because a majority of the Supreme Court expressly considered but
declined to apply the reasonable expectation of privacy test in Jones, I do not join
this Court’s application of the reasonable expectation of privacy test in Zahn’s case.
Because we are deciding this case under the federal Constitution, we should not
utilize a Fourth Amendment test that the majority of the Supreme Court has
expressly declined to apply.8 It is also unnecessary becauselike the Supreme
________________________ (. . . continued) not apply the Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (Harlan, J., concurring), reasonable expectation of privacy test in that month-long GPS monitoring case. She indicated that technological advances would “affect” the Katz test in future cases. Jones, 565 U.S. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring) (“[T]he same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.”). Ultimately, Justice Sotomayor joined the majority, concluding that it was unnecessary to address the reasonable expectation of privacy test. Id. at ___, 132 S. Ct. at 957.
8. The Court today also uses the D.C. Circuit Court of Appeals’ view of how Katz’s reasonable expectation of privacy test (and in particular, the subjective expectation of privacy prong) invalidates prolonged use of GPS monitoring. See supra ¶ 22 (citing United States v. Maynard, 615 F.3d 544, 563 (D.C. Cir. (continued . . .) - 18 - #25584
Courttoday’s Court finds this use of a GPS to be an unlawful search under the
physical trespass test. Concededly, this case was argued on the reasonable
expectation of privacy test. But Jones was decided after oral argument, and “[t]he
Court [should] not pass upon a constitutional question although properly presented
by the record, if there is also present some other ground upon which the case may
be disposed of.” Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed.
688 (1936) (Brandeis, J., concurring). “[W]e should . . . adhere to a basic
constitutional obligation by avoiding unnecessary decision of constitutional
questions.” Morse v. Frederick, 551 U.S. 393, 428, 127 S. Ct. 2618, 2640, 168 L. Ed.
2d 290 (2007). As Justice Sotomayor concluded in providing the fifth vote for the
majority opinion in Jones, “[r]esolution of [the] difficult questions [regarding
expectations of privacy was] . . . unnecessary . . . because the Government’s physical
intrusion . . . supplie[d] a narrower basis for decision.” Jones, 565 U.S. at ___, 132
S. Ct. at 957.
[¶39.] KONENKAMP, Justice, joins this special writing.
________________________ (. . . continued) 2010)). But the D.C. Circuit Court of Appeals’ decision in Maynard involved a joint appeal by both defendants Maynard and Jones, and the United States Supreme Court expressly declined to follow Maynard’s application of the reasonable expectation of privacy test in prolonged GPS monitoring. See Jones, 565 U.S. at ___, 132 S. Ct. at 954. The Supreme Court noted that applying the Katz reasonable expectation of privacy test “leads us needlessly into additional thorny problems.” Id.
- 19 - | 06-13-2013 | [
"#25584-rev & rem-GAS 2012 S.D. 19 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ELMER WAYNE ZAHN, JR., Defendant and Appellant. * * * * APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA * * * * HONORABLE TONY PORTRA Judge * * * * MARTY J. JACKLEY Attorney General FRANK GEAGHAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. THOMAS M. TOBIN of Tonner, Tobin and King, LLP Aberdeen, South Dakota Attorneys for defendant and appellant. * * * * ARGUED ON MARCH 23, 2011 OPINION FILED 03/14/12 #25584 SEVERSON, Justice [¶1.] Without obtaining a search warrant, police attached a global positioning system (GPS) device to Elmer Wayne Zahn Jr.’s vehicle.",
"The GPS device enabled officers to track and record the speed, time, direction, and geographic location of Zahn’s vehicle within five to ten feet for nearly a month. Police used the information they gathered to obtain a search warrant for two storage units that Zahn frequently visited. Officers recovered drug paraphernalia and approximately one pound of marijuana from a freezer in one of the storage units. Before trial, the trial court denied Zahn’s motion to suppress the evidence that the officers discovered during the execution of the search warrant.",
"Zahn appeals his conviction of several drug possession charges, arguing that the trial court erred by denying his motion to suppress. We reverse. Background [¶2.] Zahn and his wife, Ranee, lived in Gettysburg, South Dakota. In June 2008, Ranee passed away while visiting her daughter, Katie Circle Eagle, in Aberdeen. Because Ranee was not in the care of a physician when she died, police were called to Circle Eagle’s residence to investigate the death. Zahn was present when the officers arrived but left before they interviewed him. [¶3.] As part of the death investigation, the officers searched the bedroom where Ranee died. They found a large, brown suitcase in a bedroom closet. The suitcase contained a digital scale and approximately 120 quart-sized plastic containers. A strong odor of raw marijuana emanated from several of the containers. The officers also found $8,890 cash in a nylon shoulder bag in one -1- #25584 corner of the bedroom. A drug dog later alerted to the cash as having the odor of marijuana or some narcotic. Their suspicions aroused, the officers attempted to contact Zahn, but they were unable to do so. [¶4.] In November 2008, Zahn was arrested for driving while intoxicated. The arresting officers searched Zahn’s vehicle. They found a black duffel bag in the backseat that contained an unmarked pill bottle filled with a green, leafy substance. Tests later confirmed that the substance was marijuana.",
"The officers also recovered a large amount of cash from the duffel bag, from a purse in the cargo area of the vehicle, and from Zahn’s person. In total, the officers discovered nearly $10,000 cash. Zahn was charged with and pleaded guilty to driving under the influence, possession of two ounces or less of marijuana, and possession of drug paraphernalia. [¶5.] On March 3, 2009, Tanner Jondahl, a detective with the Aberdeen Police Department, attached a GPS device to the undercarriage of Zahn’s vehicle while it was parked in the private parking lot of an apartment complex. The GPS device was attached to Zahn’s vehicle with a magnet and did not interfere with the operation of his vehicle. Because the GPS device was battery-powered, it did not draw power from Zahn’s vehicle. For twenty-six days, it continuously transmitted the geographic location of Zahn’s vehicle, enabling officers to pinpoint his location within five to ten feet, monitor his speed, time, and direction, and detect non- movement.",
"A computer at the Brown County Sheriff’s Office recorded the movements of Zahn’s vehicle. [¶6.] Using the GPS device, Detective Jondahl tracked Zahn’s movements for twenty-six days in March 2009. He observed that Zahn’s vehicle traveled to a -2- #25584 storage unit at Plaza Rental five times and a storage unit at Store-It four times. The visits to the storage units generally lasted only a few minutes. Detective Jondahl later confirmed that a Plaza Rental storage unit was rented to Ranee and that a Store-It storage unit was rented to Alan Zahn, Zahn’s brother. Detective Jondahl represented that, based on his training and experience, he believed that Zahn kept controlled substances in the storage units and was involved in drug distribution. [¶7.]",
"On March 29, 2009, Zahn traveled to Gettysburg, South Dakota. Because Zahn was out on bond at the time, he was not permitted to leave Brown County. Officers used the GPS device to determine that Zahn left Brown County, and Zahn was arrested for the bond violation when he returned to Aberdeen. A search of his person revealed approximately $2,000 cash. [¶8.] Later that day, Detective Jondahl submitted an affidavit in support of a search warrant for the Plaza Rental storage unit, the Store-It storage unit, and Zahn’s person. A judge signed the search warrant, and Detective Jondahl, along with several other officers, executed the warrant. During the search of the Store-It storage unit, a drug dog alerted to a freezer that was hidden from view by a wall of empty cardboard boxes.",
"In the freezer, the officers discovered two jars filled with nearly one ounce of a finely-ground, green substance that emitted a strong odor of raw marijuana. A large suitcase in the freezer contained five four-ounce plastic bags of a green, leafy substance. Tests later confirmed that the substance in both the jars and the plastic bags was marijuana. The freezer contained several other items, including a glass pipe, three empty plastic bags, and several unused plastic -3- #25584 containers. Various boxes and cardboard tubes bearing Zahn’s name were also recovered from the Store-It storage unit. No evidence was recovered from the Plaza Rental storage unit. A urine sample taken from Zahn that day tested negative for marijuana ingestion. [¶9.] In April 2009, a Brown County grand jury indicted Zahn on one count of possession with the intent to distribute one pound or more of marijuana and one count of possession of one to ten pounds of marijuana.",
"Additionally, Zahn was charged with possession of drug paraphernalia. Zahn filed a motion to suppress the evidence obtained through the use of the GPS device. The trial court denied the motion after a hearing on the matter. The case proceeded to a court trial in February 2010, and Zahn was convicted of all charges. Zahn appeals. Standard of Review [¶10.] Our standard of review of motions to suppress is well settled. “A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794 (quoting State v. Thunder, 2010 S.D.",
"3, ¶ 11, 777 N.W.2d 373, 377). “The trial court’s factual findings are reviewed under the clearly erroneous standard” of review. Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377). However, “[o]nce the facts have been determined . . . the application of a legal standard to those facts is a question of law reviewed de novo.” Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377). -4- #25584 Analysis and Decision [¶11.] Zahn challenges the use of the GPS device to monitor his activities for nearly a month under the Fourth Amendment to the United States Constitution and Article VI, § 11, of the South Dakota Constitution. The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.",
"Similarly, Article VI, § 11, of the South Dakota Constitution provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized. [¶12.] While Zahn challenges the use of the GPS device to monitor his activities under Article VI, § 11, of the South Dakota Constitution, he has not asserted a basis to distinguish the protections that the South Dakota Constitution provides from those that the United States Constitution provides. See State v. Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114, 120 (“Counsel advocating a separate constitutional interpretation ‘must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision.’” (quoting State v. Schwartz, 2004 S.D.",
"123, ¶ 57, 689 N.W.2d 430, 445)). We thus decide this case on federal constitutional principles and will not address the question of whether the South Dakota Constitution affords South Dakotans greater protection against the use of GPS devices to monitor their -5- #25584 activities over an extended period of time. See State v. Opperman, 247 N.W.2d 673, 675 (S.D. 1976) (recognizing that “this [C]ourt has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution”). Is the Use of a GPS Device a Search? [¶13.] In the recent case of United States v. Jones, the United States Supreme Court addressed the issue of whether the attachment of a GPS device to an individual’s vehicle, and the subsequent use of the device to track the vehicle’s movements, constitutes a search under the Fourth Amendment.",
"565 U.S. __, 132 S. Ct. 945, __ L. Ed. 2d __ (2012). In Jones, the Government applied for and was granted a search warrant authorizing it to install a GPS tracking device on a vehicle that was registered to Jones’s wife. Id. at __, 132 S. Ct. at 948. One day after the warrant expired, the Government installed the device.1 Id. The Government then used the device to track the vehicle’s movements for twenty-eight days. Id. [¶14.] The Government later secured an indictment charging Jones and other alleged co-conspirators with several crimes, including conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base. Id. Prior to trial, Jones moved to suppress the evidence the Government obtained through the use of 1.",
"The warrant authorized the Government to install the GPS device in the District of Columbia within ten days of the issuance of the warrant. Id. The Government installed the GPS device eleven days after the warrant was issued. At the time the device was installed, the vehicle was located in Maryland. Id. -6- #25584 the GPS device. Id. The District Court held that the data obtained from the GPS device while the vehicle was on public streets was admissible because “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. (quoting United States v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006)).",
"The United States Court of Appeals for the District of Columbia Circuit reversed, holding that the admission of the evidence obtained by the Government through the warrantless use of a GPS device violated the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568 (D.C. Cir. 2010). [¶15.] The United States Supreme Court granted certiorari and affirmed the holding of the D.C. Circuit. Jones, 565 U.S. at __, 132 S. Ct. at 954. However, in doing so, the Court did not apply the Fourth Amendment analysis first introduced by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), which centers on whether an individual has a “reasonable expectation of privacy” in the area searched. See Thunder, 2010 S.D.",
"3, ¶ 16, 777 N.W.2d at 378 (applying the Katz “reasonable expectation of privacy” test). Instead, the Court applied a “physical trespass” test to determine whether the Government’s conduct constituted a Fourth Amendment search. [¶16.] The Court observed that the Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Jones, 565 U. S. at __, 132 S. Ct. at 949. The Court went on to state, “It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.” Id. (citing United States v. Chadwick, 433 U.S. 1, 12, -7- #25584 97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977)). Thus, the Court unequivocally held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” Id. [¶17.]",
"In Jones, the Court acknowledged two separate tests for identifying a Fourth Amendment search: the “physical trespass test” and the Katz “reasonable expectation of privacy” test. Justice Scalia, writing for the majority, determined it was unnecessary to reach the question of whether Jones had a “reasonable expectation of privacy” in the vehicle or in the whole of his movements on public roads. The majority explained: The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all.",
"But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Id. at __, 132 S. Ct. at 950 (internal citations omitted). [¶18.] However, Justice Alito wrote a concurring opinion, which was joined by Justices Ginsburg, Breyer, and Kagan.",
"Id. at __, 132 S. Ct. at 957 (Alito, J., concurring). Justice Alito characterized the majority’s holding as “unwise,” stating, “It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.” Id. at __, 132 S. Ct. at 958. Justice Alito reasoned that the case should be analyzed “by asking whether -8- #25584 [Jones’s] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Id. Without identifying the specific point at which the surveillance became a Fourth Amendment search, Justice Alito concluded that the continual monitoring of Jones’s movements during a four-week period violated Jones’s reasonable expectations of privacy.",
"Justice Alito explained, “In this case, for four weeks, law enforcement agents tracked every movement that [Jones] made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.”2 Id. at __, 132 S. Ct. at 964. [¶19.] In this case, law enforcement attached a GPS device to Zahn’s vehicle. It then monitored Zahn’s movements for twenty-six days. In accordance with the majority’s opinion in Jones, we hold that law enforcement’s installation of a GPS device on Zahn’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a Fourth Amendment search under the “physical trespass test.” 2. Justice Sotomayor joined the majority but wrote a separate concurring opinion.",
"Id. at __, 132 S. Ct. at 954 (Sotomayor, J., concurring). She agreed with the majority that the Government conducted a Fourth Amendment search when it physically invaded Jones’s personal property to gather information. Id. Justice Sotomayor thus found it unnecessary to address the issue of whether Jones’s reasonable expectations of privacy had been violated. Nonetheless, Justice Sotomayor indicated that she agreed with Justice Alito’s conclusion that, “at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” Id. at __, 132 S. Ct. at 955. Thus, at least five Justices reasoned that prolonged GPS monitoring violates an individual’s reasonable expectation of privacy. -9- #25584 [¶20.] Law enforcement’s actions also constituted a search under the Katz “reasonable expectation of privacy” test.3 This Court has stated, “A two-part test determines whether an individual has a reasonable expectation of privacy” in a particular area. Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 378 (citing Cordell v. Weber, 2003 S.D.",
"143, ¶ 12, 673 N.W.2d 49, 53). “First, we consider whether [an individual] exhibited an actual subjective expectation of privacy in the area searched.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Second, we consider whether society is prepared to recognize that expectation of privacy as reasonable.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Whether [an individual] has a legitimate expectation of privacy in [an area] is determined on a ‘case-by-case basis, considering the facts of each particular situation.’”4 Id. (quoting State v. Hess, 2004 S.D.",
"60, ¶ 17, 680 N.W.2d 314, 322). 3. We find it appropriate to address this issue because, in arguing this case, both parties focused on the application of the Katz “reasonable expectation of privacy” test. At the time this case was argued, the United States Supreme Court had not yet decided Jones. 4. Prior to Jones, courts that were faced with the issue of whether the use of a GPS device to monitor an individual’s movements was a Fourth Amendment search applied the Katz “reasonable expectation of privacy” test. For example, two federal circuit courts held that the use of a GPS device to monitor an individual’s activities on public roads did not amount to a Fourth Amendment search under the Katz “reasonable expectation of privacy” test. See United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), vacated, 2012 WL 538289; United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated, 2012 WL 53827.",
"One federal appellate court reached the opposite conclusion. See Maynard, 615 F.3d 544, aff’d, Jones, 565 U.S. __, 132 S. Ct. 945. A number of state courts held that the use of a GPS device to monitor an individual’s activities was not a Fourth Amendment search. See Devega v. State, 689 S.E.2d 293 (Ga. 2010); Stone v. State, 941 A.2d 1238 (Md. Ct. Spec. (continued . . .) - 10 - #25584 [¶21.] We first address whether Zahn had a subjective expectation of privacy in the whole of his movements for nearly a month. Ordinarily, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S. Ct. at 511 (citing Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 427, 17 L. Ed.",
"2d 312 (1966); United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202 (1927)). “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. (citing Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960)) (citation omitted). [¶22.] In this case, the State argues that Zahn could not have had a subjective expectation of privacy in his movements because he voluntarily exposed his movements to the public. We disagree. While a reasonable person understands that his movements on a single journey are conveyed to the public, he expects that those individual movements will remain “disconnected and anonymous.” Maynard, 615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would observe the whole of Zahn’s movements for nearly a month “is not just remote, it is ________________________ (.",
". . continued) App. 2008); Osburn v. State, 44 P.3d 523 (Nev. 2002); People v. Gant, 802 N.Y.S.2d 839 (N.Y. Crim. Ct. 2005); State v. Johnson, 944 N.E.2d 270 (Ohio Ct. App. 2010), appeal docketed, No. 2011-0033 (Ohio 2011); Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), aff’d en banc, 706 S.E.2d 914 (2011); State v. Sveum, 769 N.W.2d 53 (Wis. Ct. App. 2009). Three state courts held the warrantless use of a GPS device to monitor an individual’s movement was impermissible under their respective state constitutions. See People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988); State v. Jackson, 76 P.3d 217 (Wash. 2003). - 11 - #25584 essentially nil.” Id. at 560. The prolonged use of a GPS device in this case enabled officers to determine Zahn’s speed, time, direction, and geographic location within five to ten feet at any time.",
"It also enabled officers to use the sum of the recorded information to discover patterns in the whole of Zahn’s movements for twenty-six days. The prolonged GPS surveillance of Zahn’s vehicle revealed more than just the movements of the vehicle on public roads; it revealed an intimate picture of Zahn’s life and habits. We thus believe that Zahn had a subjective expectation of privacy in the whole of his movements. This subjective expectation of privacy was not defeated because Zahn’s individual movements were exposed to the public. [¶23.] We next consider whether Zahn’s expectation of privacy in the whole of his movements for nearly a month was reasonable. After all, his personal desire for privacy alone, no matter how earnestly held, does not trigger the protections of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 740-41, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979) (citations omitted). [¶24.] The State argues that, under United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed.",
"2d 55 (1983), Zahn could not have possessed a reasonable expectation of privacy in his movements on public roads. In Knotts, the United States Supreme Court considered whether the use of a tracking device to monitor an individual’s activities during a single journey amounted to a Fourth Amendment search. Id. at 285, 103 S. Ct. at 1087. The Court held that “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S. Ct. at 1085. The - 12 - #25584 Court noted that police efficiency does not equate with unconstitutionality. Id. at 284, 103 S. Ct. at 1086. [¶25.] By today’s standards, the beeper used in Knotts was a rudimentary tracking device. It enabled investigators to maintain visual contact with Knotts’s vehicle on a single journey, but it could not indicate with any degree of accuracy where Knotts’s vehicle was located. Id. at 278, 103 S. Ct. at 1083.",
"And it certainly could not record Knotts’s movements over an extended period of time. The Court in Knotts expressly declined to address whether twenty-four hour surveillance over an extended period of time is a Fourth Amendment search. The Court stated, “[I]f such dragnet type law enforcement practices as [Knotts] envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. at 284, 103 S. Ct. at 1086. [¶26.] In Jones, the majority did not reach the question of whether the use of a GPS device to monitor an individual’s activities for an extended period of time violates an individual’s “reasonable expectations of privacy.” Jones, 565 U.S. at __, 132 S. Ct. at 950.",
"But in his concurrence, Justice Alito recognized that longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every single movement of an individual’s car for a very long period. Id. at __, 132 S. Ct. at 964 (Alito, J., concurring). Justice Sotomayor expressly stated in her concurrence, “I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” Id. at __, 132 S. Ct. at 955 (Sotomayor, J., concurring). - 13 - #25584 [¶27.] Technology has advanced exponentially since the United States Supreme Court decided Knotts twenty-nine years ago. Current GPS technology is uniquely intrusive in the wealth of highly-detailed information it gathers. See Renee McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 U.C.L.A. L. Rev.",
"409, 456-57 (2007). The GPS device used in this case continuously transmitted the geographic location of Zahn’s vehicle to a computer at the Brown County Sheriff’s Department. It enabled officers to not only determine his speed, direction, and geographic location within five to ten feet at any time, but to also use the recorded information to discover patterns in the whole of his movements for nearly a month. [¶28.] When the use of a GPS device enables police to gather a wealth of highly-detailed information about an individual’s life over an extended period of time, its use violates an expectation of privacy that society is prepared to recognize as reasonable.5 The use of a GPS device to monitor Zahn’s activities for twenty-six 5. We do not believe that the popularity of GPS technology constitutes a surrender of personal privacy. Weaver, 909 N.E.2d at 1200.",
"In his concurrence in Jones, Justice Alito accepted this proposition in concluding that the use of a GPS device to monitor of Jones’s movements during a four- week period violated Jones’s reasonable expectations of privacy. Jones, 565 U.S. at __, 132 S. Ct. at 964 (Alito, J., concurring). However, Justice Alito indicated that future advances in technology may influence society’s expectation of privacy. He explained, the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of (continued . .",
".) - 14 - #25584 days was therefore a Fourth Amendment search under the Katz “reasonable expectation of privacy” test. Does the Fourth Amendment Require a Warrant to Use a GPS Device? [¶29.] Detective Jondahl did not obtain a search warrant before he used the GPS device to monitor Zahn’s activities for nearly a month. “[A] warrantless search and seizure is per se unreasonable” unless it falls within an exception to the warrant requirement. State v. Sweedland, 2006 S.D. 77, ¶ 14, 721 N.W.2d 409, 413 (quoting State v. Luxem, 324 N.W.2d 273, 279 (S.D. 1982)). “If a warrantless search or seizure is conducted, it is the State’s burden to show that the entry into the protected area was justified.” Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting Thunder, 2010 S.D.",
"3, ¶ 13, 777 N.W.2d at 378). [¶30.] The United States Supreme Court has carved out a number of “well- delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S. Ct. at 514. The Court has found that the presence of exigent circumstances excuses a warrantless search and that a warrantless search and seizure of an individual for the limited purpose of briefly investigating reasonably suspicious behavior is permissible. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).",
"Consent searches, searches conducted incident to a valid arrest, automobile searches, and ________________________ (. . . continued) privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. Id. at 962. - 15 - #25584 searches of items in plain view are also allowed without a warrant.6 None of these exceptions readily applies to the use of a GPS device to monitor an individual’s activities over an extended period of time. [¶31.] We thus hold that the attachment and use of a GPS device to monitor an individual’s activities over an extended period of time requires a search warrant.",
"Because the unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens, we require oversight by a neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment and use of the GPS device to monitor Zahn’s activities for nearly a month was unlawful, and the evidence obtained through the use of the GPS device should be suppressed. [¶32.] By our holding today, we do not deny police the ability to use this valuable law enforcement tool. We recognize that police must be allowed to use developing technology in the “often competitive enterprise of ferreting out crime.” Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462 U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)).",
"The Fourth Amendment “cannot sensibly be read to mean that police [should] be no more 6. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (searches of items in plain view); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (searches conducted incident to arrest); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (automobile searches). - 16 - #25584 efficient in the twenty-first century than they were in the eighteenth” century. United States v. Garcia, 474 F.3d 994, 998 (7th Cir.",
"2007), cert. denied, 552 U.S. 883, 128 S. Ct. 291, 169 L. Ed. 2d 140 (2007). But police must obtain a warrant before they attach and use a GPS device to monitor an individual’s activities over an extended period of time. [¶33.] Our disposition of this case makes it unnecessary to address Zahn’s additional challenges to this conviction. [¶34.] Reversed and remanded for additional proceedings. [¶35.] GILBERTSON, Chief Justice, and MEIERHENRY, Retired Justice, concur. [¶36.] KONENKAMP and ZINTER, Justices, concur with a writing. ZINTER, Justice (concurring). [¶37.] The majority opinion in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), resolves a virtually identical case.",
"Therefore, I join the Court’s opinion insofar as it holds this was an unlawful search under Jones’s physical trespass test. See id. at ___, 132 S. Ct. at 949 (“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” (footnote omitted)); see supra ¶¶ 15, 19. However, it must be pointed out that the majority7 of 7. Justice Sotomayor, the fifth vote, did suggest that GPS monitoring would impinge on expectations of privacy in some cases. Jones, 565 U.S. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring) (“I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’”). Nonetheless, Justice Sotomayor did (continued . . .) - 17 - #25584 the Supreme Court expressly declined to adopt Justice Alito’s concurrence arguing for application of the Katz “reasonable expectation of privacy” test. In fact, the majority pointed out a number of problems in applying the reasonable expectation of privacy test in this context.",
"The majority concluded that the Court would “have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.” Jones, 565 U.S. at ___, 132 S. Ct. at 954. [¶38.] Because a majority of the Supreme Court expressly considered but declined to apply the reasonable expectation of privacy test in Jones, I do not join this Court’s application of the reasonable expectation of privacy test in Zahn’s case. Because we are deciding this case under the federal Constitution, we should not utilize a Fourth Amendment test that the majority of the Supreme Court has expressly declined to apply.8 It is also unnecessary becauselike the Supreme ________________________ (. . . continued) not apply the Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (Harlan, J., concurring), reasonable expectation of privacy test in that month-long GPS monitoring case.",
"She indicated that technological advances would “affect” the Katz test in future cases. Jones, 565 U.S. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring) (“[T]he same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.”). Ultimately, Justice Sotomayor joined the majority, concluding that it was unnecessary to address the reasonable expectation of privacy test. Id. at ___, 132 S. Ct. at 957. 8. The Court today also uses the D.C. Circuit Court of Appeals’ view of how Katz’s reasonable expectation of privacy test (and in particular, the subjective expectation of privacy prong) invalidates prolonged use of GPS monitoring. See supra ¶ 22 (citing United States v. Maynard, 615 F.3d 544, 563 (D.C. Cir.",
"(continued . . .) - 18 - #25584 Courttoday’s Court finds this use of a GPS to be an unlawful search under the physical trespass test. Concededly, this case was argued on the reasonable expectation of privacy test. But Jones was decided after oral argument, and “[t]he Court [should] not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). “[W]e should .",
". . adhere to a basic constitutional obligation by avoiding unnecessary decision of constitutional questions.” Morse v. Frederick, 551 U.S. 393, 428, 127 S. Ct. 2618, 2640, 168 L. Ed. 2d 290 (2007). As Justice Sotomayor concluded in providing the fifth vote for the majority opinion in Jones, “[r]esolution of [the] difficult questions [regarding expectations of privacy was] . . . unnecessary . . . because the Government’s physical intrusion . . . supplie[d] a narrower basis for decision.” Jones, 565 U.S. at ___, 132 S. Ct. at 957. [¶39.] KONENKAMP, Justice, joins this special writing. ________________________ (.",
". . continued) 2010)). But the D.C. Circuit Court of Appeals’ decision in Maynard involved a joint appeal by both defendants Maynard and Jones, and the United States Supreme Court expressly declined to follow Maynard’s application of the reasonable expectation of privacy test in prolonged GPS monitoring. See Jones, 565 U.S. at ___, 132 S. Ct. at 954. The Supreme Court noted that applying the Katz reasonable expectation of privacy test “leads us needlessly into additional thorny problems.” Id. - 19 -"
]
| https://www.courtlistener.com/api/rest/v3/opinions/902187/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
internal_revenue_service number release date index number ---------------------------- --------------- ------------------------------------------ ----------------------- ---------------------------- department of the treasury washington dc person to contact ------------------------- id no ------------- telephone number --------------------- refer reply to cc corp b01 - plr-137406-03 date december ------------------------------------------------- ----------------------------------------------- ------------------- --------------------- ---------------------- legend taxpayer ---------------------------------------------------------------------- shareholder a date date date date date date a dollar_figureb c d dollar_figuree f ---------------------- ------------------- --------------- -------------- -------------- ----------- --------- -------- -------------------------- -------------- --------- -------- ----------- ----------------- ----------------- --------------- ------------ --------------- --------- -------- -------------- ------------- -------- --------- ----------- --------------- ------------------------------------------ ------------------------------------------- --------------------------------- plr-137406-03 g dollar_figureh dollar_figurei j dollar_figurek dollar_figurel dollar_figurem n o dollar_figurep q r s dollar_figuret dollar_figureu v dollar_figurew cla sec_1 preferred_stock cla sec_2 preferred_stock cla sec_3 preferred_stock date the taxpayer currently has one class of common_stock and three classes of plr-137406-03 dear --------------- this letter responds to your letter dated date which requests a ruling on the application of sec_382 to taxpayer as a result of a proposed transaction additional information was received in letters dated date date and date the material information submitted for consideration is summarized below summary of facts preferred_stock outstanding during the time period described below the taxpayer’s common_stock has declined in value relative to the value of the cla sec_1 preferred_stock the cla sec_2 preferred_stock and the cla sec_3 preferred_stock as a result the preferred_stock shareholders’ percentage of the outstanding equity value has increased although their actual preferred_stock ownership has not changed the common_stock per share market price at the close of the day was dollar_figureb on the same date taxpayer issued preferred_stock pursuant to a preferred_stock and warrant purchase agreement psp1 with shareholder a pursuant to psp1 taxpayer issued c shares of cla sec_1 preferred_stock convertible into an aggregate of d shares of common_stock at a conversion price of dollar_figuree and two warrants to purchase an aggregate of f shares of common_stock the first warrant was a 5-year warrant to purchase g shares of common_stock at an exercise price of dollar_figureh per share the second warrant was a 7-year warrant to purchase g shares of common_stock at an exercise price of dollar_figurei per share additionally the cla sec_1 preferred_stock contained a redemption feature allowing taxpayer to redeem all or a portion of the cla sec_1 preferred_stock on or after date in addition to psp1 shareholder a also purchased j shares of common_stock in the open market on this date the date purchase shareholder a’s interest in the equity interests of taxpayer was approximately dollar_figurek dollar_figurel cla sec_1 preferred_stock and dollar_figurem common_stock representing approximately n of the total value of all the stock interests in taxpayer as a result of other equity changes during the testing_period coupled with psp1 and the date purchase taxpayer represents that it had an ownership_change on date within the meaning of sec_382 on date taxpayer had a shares of common_stock issued and outstanding immediately following psp1 and the date purchase the total value of date on the same date taxpayer issued preferred_stock pursuant to a preferred on date taxpayer had o shares of common_stock and c shares of cla sec_1 plr-137406-03 preferred_stock issued and outstanding the cla sec_1 preferred_stock remained convertible into an aggregate of d shares of common_stock the common_stock per share market price at the close of the day was dollar_figurep an amount that is less than dollar_figureb stock and warrant purchase agreement psp2 with an unrelated party who was not previously a shareholder pursuant to psp2 taxpayer issued q shares of cla sec_2 preferred_stock convertible into a maximum of r shares of common_stock and a warrant to purchase s shares of common_stock at an exercise price equal to the conversion price of the cla sec_2 preferred_stock of dollar_figuret also on this date taxpayer issued preferred_stock pursuant to a preferred_stock purchase agreement psp3 pursuant to psp3 taxpayer issued q shares of cla sec_3 preferred_stock to shareholder a at an issue_price of dollar_figureu per share taxpayer also issued a letter to shareholder a indicating that the redemption feature of the cla sec_1 preferred_stock would be changed from an optional feature to a mandatory requirement as of date only other actual owner shifts have resulted from the following a purchase of v shares of common_stock by shareholder a in the open market on date a date between date and date two issuances of stock for the exercise of common_stock options and six sales of common_stock by shareholders or before date the proposed transaction such issuance may include the issuance of stock to shareholder a a current shareholder other existing shareholders new shareholders or a combination thereof the proposed transaction is intended to raise additional equity financing and or be used to acquire additional business_assets representations the taxpayer will issue approximately dollar_figurew of additional stock to shareholders on in addition to the above described transactions since date the taxpayer’s proposed transaction other transactions plr-137406-03 transaction the following representations have been made in connection with the proposed a b c the warrants issued as a result of psp1 and psp2 were not issued with a principal purpose of avoiding or ameliorating the impact of an ownership_change accordingly they are not treated as exercised for purposes of determining whether an ownership_change occurs no share of taxpayer common_stock cla sec_1 preferred_stock cla sec_2 preferred_stock or cla sec_3 preferred_stock has been redeemed during the current testing_period neither the cla sec_1 preferred_stock cla sec_2 preferred_stock or cla sec_3 preferred_stock meets the description of stock described in sec_1504 accordingly the cla sec_1 preferred_stock cla sec_2 preferred_stock and cla sec_3 preferred_stock constitute stock for sec_382 purposes d there have been no changes in the ultimate beneficial_ownership of shareholder a since date and no such changes are anticipated e on date taxpayer experienced an ownership_change within the meaning of sec_382 taxpayer has not made any distributions to its shareholders or security holders of the stock and or securities of any subsidiary_corporation f g there have been no distributions to the shareholders or security holders other than in the normal course of business rulings based solely on the information submitted and the representations as set forth above we hold that the taxpayer may apply the following principle on the testing_date caused by the proposed transaction and on any subsequent testing_date on any testing_date in determining the ownership percentage of any shareholder the value of such shareholder’s stock relative to the value of all other stock of the corporation shall be considered to remain constant since the date that shareholder acquired the stock and the value of such shareholder’s stock relative to the value of all other stock of the corporation issued subsequent to such acquisition_date shall also be considered to remain constant since that subsequent date the rulings contained in this letter are based upon information and except as expressly provided herein no opinion is expressed or implied plr-137406-03 concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter further in the event that any shareholder acquired stock prior to the beginning of the testing_period no opinion is expressed regarding whether the principle described above should apply to factor out the effect of fluctuations in value of such stock relative to the value of other stock that occur prior to the testing_period representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party while this office has not verified any of the material submitted in support of the request for rulings it is subject_to verification on examination the code provides that it may not be used or cited as precedent relevant letter is being sent to the taxpayer this ruling is directed only to the taxpayer s requesting it sec_6110 of in accordance with the power_of_attorney on file with this office a copy of this a copy of this letter must be attached to any income_tax return to which it is sincerely mark s jennings mark s jennings chief branch office of office of associate chief_counsel corporate cc | [
"internal_revenue_service number release date index number ---------------------------- --------------- ------------------------------------------ ----------------------- ---------------------------- department of the treasury washington dc person to contact ------------------------- id no ------------- telephone number --------------------- refer reply to cc corp b01 - plr-137406-03 date december ------------------------------------------------- ----------------------------------------------- ------------------- --------------------- ---------------------- legend taxpayer ---------------------------------------------------------------------- shareholder a date date date date date date a dollar_figureb c d dollar_figuree f ---------------------- ------------------- --------------- -------------- -------------- ----------- --------- -------- -------------------------- -------------- --------- -------- ----------- ----------------- ----------------- --------------- ------------ --------------- --------- -------- -------------- ------------- -------- --------- ----------- --------------- ------------------------------------------ ------------------------------------------- --------------------------------- plr-137406-03 g dollar_figureh dollar_figurei j dollar_figurek dollar_figurel dollar_figurem n o dollar_figurep q r s dollar_figuret dollar_figureu v dollar_figurew cla sec_1 preferred_stock cla sec_2 preferred_stock cla sec_3 preferred_stock date the taxpayer currently has one class of common_stock and three classes of plr-137406-03 dear --------------- this letter responds to your letter dated date which requests a ruling on the application of sec_382 to taxpayer as a result of a proposed transaction additional information was received in letters dated date date and date the material information submitted for consideration is summarized below summary of facts preferred_stock outstanding during the time period described below the taxpayer’s common_stock has declined in value relative to the value of the cla sec_1 preferred_stock the cla sec_2 preferred_stock and the cla sec_3 preferred_stock as a result the preferred_stock shareholders’ percentage of the outstanding equity value has increased although their actual preferred_stock ownership has not changed the common_stock per share market price at the close of the day was dollar_figureb on the same date taxpayer issued preferred_stock pursuant to a preferred_stock and warrant purchase agreement psp1 with shareholder a pursuant to psp1 taxpayer issued c shares of cla sec_1 preferred_stock convertible into an aggregate of d shares of common_stock at a conversion price of dollar_figuree and two warrants to purchase an aggregate of f shares of common_stock the first warrant was a 5-year warrant to purchase g shares of common_stock at an exercise price of dollar_figureh per share the second warrant was a 7-year warrant to purchase g shares of common_stock at an exercise price of dollar_figurei per share additionally the cla sec_1 preferred_stock contained a redemption feature allowing taxpayer to redeem all or a portion of the cla sec_1 preferred_stock on or after date in addition to psp1 shareholder a also purchased j shares of common_stock in the open market on this date the date purchase shareholder a’s interest in the equity interests of taxpayer was approximately dollar_figurek dollar_figurel cla sec_1 preferred_stock and dollar_figurem common_stock representing approximately n of the total value of all the stock interests in taxpayer as a result of other equity changes during the testing_period coupled with psp1 and the date purchase taxpayer represents that it had an ownership_change on date within the meaning of sec_382 on date taxpayer had a shares of common_stock issued and outstanding immediately following psp1 and the date purchase the total value of date on the same date taxpayer issued preferred_stock pursuant to a preferred on date taxpayer had o shares of common_stock and c shares of cla sec_1 plr-137406-03 preferred_stock issued and outstanding the cla sec_1 preferred_stock remained convertible into an aggregate of d shares of common_stock the common_stock per share market price at the close of the day was dollar_figurep an amount that is less than dollar_figureb stock and warrant purchase agreement psp2 with an unrelated party who was not previously a shareholder pursuant to psp2 taxpayer issued q shares of cla sec_2 preferred_stock convertible into a maximum of r shares of common_stock and a warrant to purchase s shares of common_stock at an exercise price equal to the conversion price of the cla sec_2 preferred_stock of dollar_figuret also on this date taxpayer issued preferred_stock pursuant to a preferred_stock purchase agreement psp3 pursuant to psp3 taxpayer issued q shares of cla sec_3 preferred_stock to shareholder a at an issue_price of dollar_figureu per share taxpayer also issued a letter to shareholder a indicating that the redemption feature of the cla sec_1 preferred_stock would be changed from an optional feature to a mandatory requirement as of date only other actual owner shifts have resulted from the following a purchase of v shares of common_stock by shareholder a in the open market on date a date between date and date two issuances of stock for the exercise of common_stock options and six sales of common_stock by shareholders or before date the proposed transaction such issuance may include the issuance of stock to shareholder a a current shareholder other existing shareholders new shareholders or a combination thereof the proposed transaction is intended to raise additional equity financing and or be used to acquire additional business_assets representations the taxpayer will issue approximately dollar_figurew of additional stock to shareholders on in addition to the above described transactions since date the taxpayer’s proposed transaction other transactions plr-137406-03 transaction the following representations have been made in connection with the proposed a b c the warrants issued as a result of psp1 and psp2 were not issued with a principal purpose of avoiding or ameliorating the impact of an ownership_change accordingly they are not treated as exercised for purposes of determining whether an ownership_change occurs no share of taxpayer common_stock cla sec_1 preferred_stock cla sec_2 preferred_stock or cla sec_3 preferred_stock has been redeemed during the current testing_period neither the cla sec_1 preferred_stock cla sec_2 preferred_stock or cla sec_3 preferred_stock meets the description of stock described in sec_1504 accordingly the cla sec_1 preferred_stock cla sec_2 preferred_stock and cla sec_3 preferred_stock constitute stock for sec_382 purposes d there have been no changes in the ultimate beneficial_ownership of shareholder a since date and no such changes are anticipated e on date taxpayer experienced an ownership_change within the meaning of sec_382 taxpayer has not made any distributions to its shareholders or security holders of the stock and or securities of any subsidiary_corporation f g there have been no distributions to the shareholders or security holders other than in the normal course of business rulings based solely on the information submitted and the representations as set forth above we hold that the taxpayer may apply the following principle on the testing_date caused by the proposed transaction and on any subsequent testing_date on any testing_date in determining the ownership percentage of any shareholder the value of such shareholder’s stock relative to the value of all other stock of the corporation shall be considered to remain constant since the date that shareholder acquired the stock and the value of such shareholder’s stock relative to the value of all other stock of the corporation issued subsequent to such acquisition_date shall also be considered to remain constant since that subsequent date the rulings contained in this letter are based upon information and except as expressly provided herein no opinion is expressed or implied plr-137406-03 concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter further in the event that any shareholder acquired stock prior to the beginning of the testing_period no opinion is expressed regarding whether the principle described above should apply to factor out the effect of fluctuations in value of such stock relative to the value of other stock that occur prior to the testing_period representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party while this office has not verified any of the material submitted in support of the request for rulings it is subject_to verification on examination the code provides that it may not be used or cited as precedent relevant letter is being sent to the taxpayer this ruling is directed only to the taxpayer s requesting it sec_6110 of in accordance with the power_of_attorney on file with this office a copy of this a copy of this letter must be attached to any income_tax return to which it is sincerely mark s jennings mark s jennings chief branch office of office of associate chief_counsel corporate cc"
]
| https://archive.data.jhu.edu/file.xhtml?persistentId=doi:10.7281/T1/N1X6I4/D5CQ0Y&version=2.0 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Reasons for Corrected Notice of Allowance The Corrected Notice of Allowance is being processed to correct a typographical error identified in independent claim 5 filed on 06/01/2021. The typographical error consists of claim 5 containing two periods. The examiner’s amendment listed below corrects said typographical error by removing the first recitation of a period from the claim limitations.
EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The claims are amended as follows: Claim 5: … “wherein said thorn partially resides between said seed orifices, and said conical point adjustably, resides and extends between said slit distal end and said slit proximal end[[.]];” …
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARKIS A AKTAVOUKIAN whose telephone number is (571)272-4444. The examiner can normally be reached on Mon-Thu: 10:00-6:00; Fri: Variable. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SHELLEY SELF can be reached on (571)272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SAA/Examiner, Art Unit 3725 /TERESA M EKIERT/Primary Examiner, Art Unit 3725 | 2021-06-27T14:52:41 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Reasons for Corrected Notice of Allowance The Corrected Notice of Allowance is being processed to correct a typographical error identified in independent claim 5 filed on 06/01/2021. The typographical error consists of claim 5 containing two periods. The examiner’s amendment listed below corrects said typographical error by removing the first recitation of a period from the claim limitations. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The claims are amended as follows: Claim 5: … “wherein said thorn partially resides between said seed orifices, and said conical point adjustably, resides and extends between said slit distal end and said slit proximal end[[.",
"]];” … Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARKIS A AKTAVOUKIAN whose telephone number is (571)272-4444. The examiner can normally be reached on Mon-Thu: 10:00-6:00; Fri: Variable. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SHELLEY SELF can be reached on (571)272-4524. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /SAA/Examiner, Art Unit 3725 /TERESA M EKIERT/Primary Examiner, Art Unit 3725"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-27.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 6:20-cv-00812-ADA Document 32 Filed 12/14/20 Page 1 of 1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO WACO DIVISION
WSOU INVESTMENTS LLC § § CIVIL NO: vs. § WA:20-CV-00812-ADA § JUNIPER NETWORKS, INC., JUNIPER § NETWORKS, INC., WSOU INVESTMENTS LLC
TELEPHONIC SCHEDULING ORDER CANCELLINGTELEPHONIC SCHEDULING CONFERENCE CONFERENCE
IT IS HEREBY ORDERED that the above entitled and numbered case having been set for TELEPHONIC SCHEDULING CONFERENCE on Monday, December 12/ 20 21, 2020 at 01:30 PMis hereby CANCELLED until further order of the court.
IT IS SO ORDERED this 12/420
Alan D Albright UNITED STATES DISTRICT JUDGE | 2020-12-14 | [
"Case 6:20-cv-00812-ADA Document 32 Filed 12/14/20 Page 1 of 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO WACO DIVISION WSOU INVESTMENTS LLC § § CIVIL NO: vs. § WA:20-CV-00812-ADA § JUNIPER NETWORKS, INC., JUNIPER § NETWORKS, INC., WSOU INVESTMENTS LLC TELEPHONIC SCHEDULING ORDER CANCELLINGTELEPHONIC SCHEDULING CONFERENCE CONFERENCE IT IS HEREBY ORDERED that the above entitled and numbered case having been set for TELEPHONIC SCHEDULING CONFERENCE on Monday, December 12/ 20 21, 2020 at 01:30 PMis hereby CANCELLED until further order of the court. IT IS SO ORDERED this 12/420 Alan D Albright UNITED STATES DISTRICT JUDGE"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/154427833/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
114 HR 3093 IH: Correct the Safety Analysis Act U.S. House of Representatives 2015-07-16 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I 114th CONGRESS 1st Session H. R. 3093 IN THE HOUSE OF REPRESENTATIVES July 16, 2015 Mr. Gibbs introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To direct the Secretary of Transportation to make certain changes in the implementation of the Compliance, Safety, Accountability program of the Federal Motor Carrier Safety Administration, and for other purposes. 1.Short titleThis Act may be cited as the Correct the Safety Analysis Act. 2.Compliance, Safety, Accountability program (a)Use of crash information in determining motor carrier safety riskIn determining the safety risk of a motor carrier under the Compliance, Safety, Accountability program, the Secretary of Transportation may attribute a crash to a motor carrier only if the Secretary determines that the carrier could have prevented the crash. (b)Use of safety data (1)In generalIn carrying out the CSA program, and to prevent the misuse and misinterpretation of data by public entities, the Secretary— (A)shall use the safety data of a motor carrier developed under the program solely for internal purposes of the Federal Motor Carrier Safety Administration, including allocating resources to conduct audits and inspections of motor carriers; and (B)may not make the scores available to the public. (2)Safety fitness informationParagraph (1) may not be construed to affect the responsibility of the Secretary under section 31144(a)(3) of title 49, United States Code, to make final safety fitness determinations readily available to the public. (c)Compliance, Safety, Accountability program definedIn this section, the term Compliance, Safety, Accountability program or CSA program means the Compliance, Safety, Accountability program carried out by the Secretary, acting through the Federal Motor Carrier Safety Administration. | 07-16-2015 | [
"114 HR 3093 IH: Correct the Safety Analysis Act U.S. House of Representatives 2015-07-16 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. I 114th CONGRESS 1st Session H. R. 3093 IN THE HOUSE OF REPRESENTATIVES July 16, 2015 Mr. Gibbs introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To direct the Secretary of Transportation to make certain changes in the implementation of the Compliance, Safety, Accountability program of the Federal Motor Carrier Safety Administration, and for other purposes. 1.Short titleThis Act may be cited as the Correct the Safety Analysis Act. 2.Compliance, Safety, Accountability program (a)Use of crash information in determining motor carrier safety riskIn determining the safety risk of a motor carrier under the Compliance, Safety, Accountability program, the Secretary of Transportation may attribute a crash to a motor carrier only if the Secretary determines that the carrier could have prevented the crash. (b)Use of safety data (1)In generalIn carrying out the CSA program, and to prevent the misuse and misinterpretation of data by public entities, the Secretary— (A)shall use the safety data of a motor carrier developed under the program solely for internal purposes of the Federal Motor Carrier Safety Administration, including allocating resources to conduct audits and inspections of motor carriers; and (B)may not make the scores available to the public.",
"(2)Safety fitness informationParagraph (1) may not be construed to affect the responsibility of the Secretary under section 31144(a)(3) of title 49, United States Code, to make final safety fitness determinations readily available to the public. (c)Compliance, Safety, Accountability program definedIn this section, the term Compliance, Safety, Accountability program or CSA program means the Compliance, Safety, Accountability program carried out by the Secretary, acting through the Federal Motor Carrier Safety Administration."
]
| https://www.govinfo.gov/content/pkg/BILLS-114hr3093ih/xml/BILLS-114hr3093ih.xml | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q/A Amendment No. 2 (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarterly Period Ended July 31, 2011 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 000-49996 AMERICAN GOLDFIELDS INC. (Exact name of registrant as specified in its charter) 3unset Road Las Vegas, Nevada, USA89120 (Address of principal executive offices) (Zip Code) (800) 315-6551 (Registrant's telephone number, including area code) (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [] No Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 [Missing Graphic Reference]of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).[X] Yes [] No Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer[] Accelerated filer[] Non-accelerated filer [] (Do not check if a smaller reporting company) Smaller reporting company[X] Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes[]No [X] Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date: 21,346,932 shares of common stock, $0.001 par value, issued and outstanding as of October 14, 2011. 1 EXPLANATORY NOTE The purpose of this Amendment No. 2 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended July 31, 2011, filed with the Securities and Exchange Commission on September 19, 2011 (the "Form 10-Q"), is to correct the following: 1. Clerical error in the footnote 2 of the financial statements of the Company as filed in the Form 10-Q, as amended; 2. Typographical error in the inception through date column heading on the Consolidated Statement of Operations which appeared twice; and 3. Typographical error in the July 31,2011 three month and nine monthcolumns.Parentheses were added to "Totalexpenses," "NetLoss for the period" and earnings per share numbers to ensure the presentation was consistent with othernumbers presented therein. The Form 10-Q for the quarterly period ended July 31, 2011 is hereby replaced in its entirety.Other than as described above, this Amendment No. 2 speaks as of the filing date of the Form 10-Q and does not purport to, amend, update or restate any other information or disclosure included in the Form 10-Q, as amended. In addition, this Amendment No. 2 includes currently dated Exhibit 12.1 certification pursuant to Section 301(a) of the Sarbanes-Oxley Act of 2002 and Exhibit 13.1 certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 2 TABLE OF CONTENTS Page PART I - Financial Information 4 Item 1. Financial Statements 4 Balance Sheets July 31, 2011, and April 30, 2011 4 Statements of Loss for the Six month periods ended July 31, 2011 and 2010, and for the period from inception on December 21, 2001 to July 31, 2011. 5 Statements of Cash Flows for the Six month period ended July 31, 2011 and 2010, and for the period from inception on December 21, 2001 to July 31, 2011. 6 Notes to the Financial Statements 7 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 10 Item 3. Quantitative and Qualitative Disclosures About Market Risk 11 Item 4. Controls and Procedures 11 PART II – Other Information 12 Item 1.Legal Proceedings 12 Item 1A. Risk Factors 12 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 12 Item 3. Defaults Upon Senior Securities 12 Item 4. Submission of Matters to a Vote of Security Holders 12 Item 5. Other Information 12 Item 6. Exhibits 12 3 PART I. FINANCIAL INFORMATION Item 1. Financial Statements American Goldfields Inc. (An Exploration Stage Company) Consolidated Balance Sheets (Unaudited) (unaudited) (audited) July 31, January 31, ASSETS Current assets Cash Long-term assets Reclamation Deposits Total assets LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities Accounts payable and accrued liabilities Loan Payable - Accrued interest loan payable - Total current liabilities Stockholders' equity Preferred stock, par value $0.001, 100,000,000 share authorized no shares issued or outstanding at July 31, and January 31, 2011 - - Common stock: par value $0.001, 600,000,000 shares authorized, 21,346,932 shares issued and outstanding at July 31 and January 31, 2011 Additional paid-in capital Deficit accumulated during the exploration stage ) ) Total stockholders’ equity Total liabilities and stockholders’ equity The accompanying notes are an integral part of these financial statements 4 American Goldfields Inc. (An Exploration Stage Company) Consolidated Statements of Operations (Unaudited) Inception Three months ended July 31, Six months ended July 31, December 21, 2001 to July31, 2011 Expenses Mineral acquisition and exploration expenditures $ | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q/A Amendment No. 2 (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarterly Period Ended July 31, 2011 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 000-49996 AMERICAN GOLDFIELDS INC. (Exact name of registrant as specified in its charter) 3unset Road Las Vegas, Nevada, USA89120 (Address of principal executive offices) (Zip Code) (800) 315-6551 (Registrant's telephone number, including area code) (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.",
"[X] Yes [] No Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 [Missing Graphic Reference]of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). [X] Yes [] No Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer[] Accelerated filer[] Non-accelerated filer [] (Do not check if a smaller reporting company) Smaller reporting company[X] Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes[]No [X] Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date: 21,346,932 shares of common stock, $0.001 par value, issued and outstanding as of October 14, 2011.",
"1 EXPLANATORY NOTE The purpose of this Amendment No. 2 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended July 31, 2011, filed with the Securities and Exchange Commission on September 19, 2011 (the \"Form 10-Q\"), is to correct the following: 1. Clerical error in the footnote 2 of the financial statements of the Company as filed in the Form 10-Q, as amended; 2. Typographical error in the inception through date column heading on the Consolidated Statement of Operations which appeared twice; and 3. Typographical error in the July 31,2011 three month and nine monthcolumns.Parentheses were added to \"Totalexpenses,\" \"NetLoss for the period\" and earnings per share numbers to ensure the presentation was consistent with othernumbers presented therein. The Form 10-Q for the quarterly period ended July 31, 2011 is hereby replaced in its entirety.Other than as described above, this Amendment No. 2 speaks as of the filing date of the Form 10-Q and does not purport to, amend, update or restate any other information or disclosure included in the Form 10-Q, as amended. In addition, this Amendment No. 2 includes currently dated Exhibit 12.1 certification pursuant to Section 301(a) of the Sarbanes-Oxley Act of 2002 and Exhibit 13.1 certification pursuant to 18 U.S.C.",
"Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 2 TABLE OF CONTENTS Page PART I - Financial Information 4 Item 1. Financial Statements 4 Balance Sheets July 31, 2011, and April 30, 2011 4 Statements of Loss for the Six month periods ended July 31, 2011 and 2010, and for the period from inception on December 21, 2001 to July 31, 2011.",
"5 Statements of Cash Flows for the Six month period ended July 31, 2011 and 2010, and for the period from inception on December 21, 2001 to July 31, 2011. 6 Notes to the Financial Statements 7 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 10 Item 3. Quantitative and Qualitative Disclosures About Market Risk 11 Item 4. Controls and Procedures 11 PART II – Other Information 12 Item 1.Legal Proceedings 12 Item 1A. Risk Factors 12 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 12 Item 3.",
"Defaults Upon Senior Securities 12 Item 4. Submission of Matters to a Vote of Security Holders 12 Item 5. Other Information 12 Item 6. Exhibits 12 3 PART I. FINANCIAL INFORMATION Item 1. Financial Statements American Goldfields Inc. (An Exploration Stage Company) Consolidated Balance Sheets (Unaudited) (unaudited) (audited) July 31, January 31, ASSETS Current assets Cash Long-term assets Reclamation Deposits Total assets LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities Accounts payable and accrued liabilities Loan Payable - Accrued interest loan payable - Total current liabilities Stockholders' equity Preferred stock, par value $0.001, 100,000,000 share authorized no shares issued or outstanding at July 31, and January 31, 2011 - - Common stock: par value $0.001, 600,000,000 shares authorized, 21,346,932 shares issued and outstanding at July 31 and January 31, 2011 Additional paid-in capital Deficit accumulated during the exploration stage ) ) Total stockholders’ equity Total liabilities and stockholders’ equity The accompanying notes are an integral part of these financial statements 4 American Goldfields Inc. (An Exploration Stage Company) Consolidated Statements of Operations (Unaudited) Inception Three months ended July 31, Six months ended July 31, December 21, 2001 to July31, 2011 Expenses Mineral acquisition and exploration expenditures $"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
FOURNET, Chief Justice. This suit is controlled by our decision in the case of I-Henderson v. Central Mutual Insurance Co., 238 La. 250, 115 So.2d 339, both cases arising out of the same inter-sectional automobile collision, having been1 consolidated in the district court for the-purpose of trial and presenting for our consideration the sole question of whether or not the Court of Appeal erred in finding-Mrs. Harmon contributorily negligent in-causing the collision; and is now before us on certiorari granted on the application, of the plaintiffs, Mr. and Mrs. Frank Harmon, and their collision insurer, the Merrimack Casualty Company, to review the-judgment of the Court of Appeal affirming the judgment of the district court dismissing the suit plaintiffs had filed against the defendant, L. G. Palmer, and his liability insurer, Firemen’s Insurance Company, to-recover for personal injuries, medical expenses and property damages. For the reasons assigned, the judgments, of the district court and Court of Appeal are annulled and set aside, and the case is-remanded to the Court of Appeal, Second Circuit, for the determination of the quantum of damages plaintiffs may be awarded, under the facts of this case. | 08-18-2021 | [
"FOURNET, Chief Justice. This suit is controlled by our decision in the case of I-Henderson v. Central Mutual Insurance Co., 238 La. 250, 115 So.2d 339, both cases arising out of the same inter-sectional automobile collision, having been1 consolidated in the district court for the-purpose of trial and presenting for our consideration the sole question of whether or not the Court of Appeal erred in finding-Mrs. Harmon contributorily negligent in-causing the collision; and is now before us on certiorari granted on the application, of the plaintiffs, Mr. and Mrs. Frank Harmon, and their collision insurer, the Merrimack Casualty Company, to review the-judgment of the Court of Appeal affirming the judgment of the district court dismissing the suit plaintiffs had filed against the defendant, L. G. Palmer, and his liability insurer, Firemen’s Insurance Company, to-recover for personal injuries, medical expenses and property damages. For the reasons assigned, the judgments, of the district court and Court of Appeal are annulled and set aside, and the case is-remanded to the Court of Appeal, Second Circuit, for the determination of the quantum of damages plaintiffs may be awarded, under the facts of this case."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4770745/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
7 So. 3d 1114 (2009) FARROW v. SCHOOL BD. OF BROWARD COUNTY. No. 4D07-3934. District Court of Appeal of Florida, Fourth District. May 6, 2009. Decision without published opinion. Affirmed. | 10-30-2013 | [
"7 So. 3d 1114 (2009) FARROW v. SCHOOL BD. OF BROWARD COUNTY. No. 4D07-3934. District Court of Appeal of Florida, Fourth District. May 6, 2009. Decision without published opinion. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1606927/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
876 F.2d 1521 UNITED STATES of America, Plaintiff-Appellee,v.Tommy Lee WILLIAMS, Leonard Williams, Defendants-Appellants. No. 88-3716. United States Court of Appeals,Eleventh Circuit. July 12, 1989.
Wm. J. Sheppard, Elizabeth L. White, Jacksonville, Fla., for Tommy Lee Williams. Lee Fugate, Clearwater, Fla., for Leonard Williams. Ronald T. Henry, Asst. U.S. Atty., Jacksonville, Fla., Joseph C. Wyderko, U.S. Dept. of Justice, Criminal Division, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Middle District of Florida. Before HILL and EDMONDSON, Circuit Judges, and GARZA*, Senior Circuit Judge. HILL, Circuit Judge:
1 A federal jury convicted Tommy Lee and Leonard Williams for their participation in a conspiracy to distribute "crack" cocaine in Jacksonville, Florida. In this appeal, we consider, inter alia, whether the stop of appellants' automobile complied with the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and whether the statute under which the district court sentenced the appellants, 21 U.S.C.A. Sec. 841(b)(1)(A)(iii), violates due process.
2 * In November 1987, Detective Robert Walsh and other members of the Duval County Sheriff's office in Jacksonville, Florida, placed a court-ordered wiretap on the telephone of Henry Alan Mann, a suspected drug trafficker. At 4:48 p.m. on November 13, the detectives intercepted an incoming call from a woman identifying herself as "Rabbit." Rabbit asked one of Mann's associates, "You want to move something for me [?]" From these and other words, the detectives determined that Rabbit intended to distribute narcotics to Mann and that Rabbit's true identity was Essie Williams, the appellants' sister. She had been stopped and identified a week earlier by a Sheriff's Department officer after leaving the location of another suspected drug dealer while carrying a large amount of money. Expecting another drug transaction, the detectives began a surveillance of an apartment from where they believed Essie Williams had called Henry Mann.
3 At midnight on November 13, the detectives observed two cars arrive at the apartment complex, a Nissan Sentra and a Blazer, from which one woman and three men emerged. Walsh had never seen the four persons before, but he believed that the woman was Essie Williams and that the men were her three brothers, appellant Tommy Lee Williams, appellant Leonard Williams and Lee James Williams. Walsh based this belief on information and physical descriptions concerning the Williams family which he and other members of his department had gathered during a two to three month investigation. Specifically, the Sheriff's Department had previously investigated Essie Williams in Jacksonville. Also, law enforcement sources in Ft. Lauderdale, Florida, had informed the detectives that the three Williams brothers were known as major suppliers of cocaine in South Florida who had recently begun to make distributions in northern Florida. This information was corroborated by confidential informants in Jacksonville who told detectives that appellant Tommy Lee Williams was supplying crack cocaine to Henry Mann, the target of the wiretap. Thus, when Walsh observed the three men who matched the descriptions of the Williams brothers, he suspected that they were in town to help Essie Williams distribute cocaine.
4 The detectives' surveillance continued, and, at 11:30 a.m. the next day, they observed the Williams brothers leave the apartment and get into the Nissan Sentra. One of them carried a plastic drawstring bag of the type used by athletic stores for customer purchases. The detectives, who had an unmarked car, followed the Sentra. The Sentra exited the apartment complex, turned onto St. Augustine Road, drove at a very high rate of speed, and then suddenly made a U-turn in the middle of the road and returned to the complex. The Sentra circled the apartment complex without stopping. It then came back out onto St. Augustine Road and quickly sped away. Based on his experience, Detective Walsh believed that the Sentra was being driven in a type of counter-surveillance pattern to determine whether someone was following the car. As Walsh later testified, "[i]t is ... a pattern which I have seen numerous times when an individual ... is hiding something or wants to see if someone is following them...." Walsh also believed that the erratic driving constituted a traffic violation. However, he did not stop the Sentra because his unmarked car lacked a blue light. Instead, Walsh contacted the dispatch operator to have a uniformed officer stop the Sentra.
5 Officer Bruce Wilde of the Duval County Sheriff's Department responded to the dispatcher's call. Detective Walsh told Officer Wilde to stop the Sentra and to identify the driver. Walsh also stated the stop was part of a drug investigation but did not give the officer any more specific information. After being directed to the Sentra's location, Wilde began to follow it. He noticed that neither the driver nor the front-seat passenger were wearing seat belts, which he believed to be a violation of Florida law.1 Because of Walsh's instructions to stop the car and the seat belt violation, Officer Wilde turned on his blue light, and the Sentra stopped in the right traffic lane. Officer Wilde exited his automobile, approached the Sentra and stood on the driver's side of the car. He asked the driver, appellant Tommy Lee Williams, for his driver's license. Tommy Lee Williams then looked around, put the car in gear and departed, leaving officer Wilde standing in the middle of road.
6 Officer Wilde returned to his vehicle, activated his siren and chased the Sentra for four blocks. Another marked police automobile and Detective Walsh's automobile also pursued the appellants. The Sentra traveled the wrong way on several one-way streets before it stopped. As the car slowed down, the front seat passenger, appellant Leonard Williams, threw the athletic bag out the window, and the bag became caught on a tree limb. Once the car stopped, the officers arrested the three Williams brothers and retrieved the athletic bag, which contained 850 grams of crack cocaine. Thereafter, Walsh returned to the apartment which had been under surveillance. There, Walsh met and spoke with Essie Williams who confirmed that she was traveling with her three brothers and that she was also known as Rabbit.
7 A two count federal indictment charged Tommy Lee and Leonard Williams with conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base, also known as crack, in violation of 21 U.S.C.A. Sec. 846 (West Supp.1989) (Count 1), and with possession with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981) (Count 2). Prior to trial, the appellants moved to suppress the cocaine, contending that the initial stop of their automobile had violated the Fourth Amendment. After a hearing, the magistrate recommended that the motions be denied and the district court agreed. The jury subsequently convicted the appellants on both counts, and the district court sentenced the appellants pursuant to the 21 U.S.C.A. Sec. 841(b)(1)(A)(iii) (West Supp.1989), which defines the penalties for narcotics offenses involving 50 grams or more of cocaine base.
8 On appeal, appellants challenge the district court's (1) denial of their motion to suppress, (2) its admission of Essie Williams' tape-recorded conversation and certain other evidence during trial, (3) the district court's denial of their requested jury instructions, and (4) their sentences pursuant to section 841(b)(1)(A)(iii). In this opinion, we discuss some, but not all, of appellants' claims and arguments. As to issues not discussed herein, we find appellants' contentions to be without merit.
II
9 The appellants contend that the initial stop of their automobile did not comply with the Fourth Amendment since the detectives lacked reasonable suspicion. Our analysis is governed by the principles of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), under which the police may stop and briefly detain a person to investigate a reasonable suspicion that he is involved in criminal activity, even though probable cause is lacking. The Terry rationale also permits police officers to stop a moving automobile based on a reasonable suspicion that its occupants are violating the law. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 678, 83 L.Ed.2d 604 (1985); United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). Reasonable suspicion is determined from the totality of the circumstances, United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), and from the collective knowledge of the officers involved in the stop. United States v. Cotton, 721 F.2d 350, 352 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). Although this standard is considerably less demanding than proof of wrongdoing by a preponderance of the evidence and less than probable cause, the Fourth Amendment nevertheless requires that the police articulate facts which provide some minimal, objective justification for the stop. Sokolow, 109 U.S. at 1585. Such facts may be derived from "various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).
10 Here, the wiretap, police and informants' reports, and the detectives' observations yielded enough facts to support a reasonable suspicion that appellants were trafficking in cocaine at the time of the initial stop. The intercepted telephone conversation evidenced that a woman believed to be Essie Williams, who had been detained a week earlier in connection with a narcotics transaction, wanted to distribute cocaine to Henry Mann, also a suspected drug dealer. That conversation led to the surveillance of an apartment where, several hours later, the detectives observed Essie Williams arrive with three men fitting the descriptions of her brothers, appellant Tommy Lee Williams, appellant Leonard Williams and Lee James Williams. The detectives knew that Ft. Lauderdale law enforcement sources suspected the brothers of supplying large quantities of cocaine in South Florida. More importantly, they knew that Tommy Lee Williams was allegedly supplying crack cocaine to Henry Mann. Thus, with the coincidence of Essie Williams' call to Henry Mann and the arrival in Jacksonville of Tommy Lee Williams, Mann's apparent source for crack, the detectives logically suspected that the Williams siblings intended to distribute cocaine jointly. Moreover, after observing the unusual manner in which the Sentra exited the apartment complex, which Detective Walsh interpreted as an evasive tactic intended to detect police surveillance, he reasonably surmised that the appellants were in the process of distributing their crack cocaine. Also, Walsh believed that appellants had violated the traffic laws. Under these circumstances, Officer Wilde's investigative stop complied with the Fourth Amendment. The district court correctly denied appellants' motion to suppress.2
11 Next, appellants complain that the district court failed to instruct the jury on certain lesser included offenses. The indictment charged the appellants with the offenses of violating, and conspiring to violate, 21 U.S.C.A. Sec. 841(a)(1), which prohibits individuals from distributing a "controlled substance."3 The indictment also alleged that the controlled substance involved here was 850 grams of cocaine base. As proof, a government expert testified that the substance found in the appellants' bag was "cocaine as the free base form," also known as crack cocaine. He distinguished crack from mere "cocaine", which contains hydrochloric acid and is commonly presented in the media as a powder. Before the case went to the jury, however, appellants requested instructions that they could be found guilty of the lesser included offense of possessing and intending to distribute cocaine, as opposed to cocaine base. The district judge denied this request, and appellants contend that he erred. Appellants' claim is founded on the fact that 21 U.S.C.A. Sec. 841(b)(1)(A)(iii) authorizes a minimum ten-year prison term for distributing 50 grams or more of cocaine base, whereas another provision in section 841(b) requires 5 kilograms of cocaine to trigger the same minimum ten year sentence. See 21 U.S.C.A. Sec. 841(b)(1)(A)(ii)(II). As a result, possession of 850 grams of cocaine base carries a heavier penalty than possession of a like quantity of cocaine. Thus, appellants contend that possession of cocaine must be a lesser included offense and that the jury, which may have disbelieved the expert's testimony, should have been so instructed. We disagree.
12 A violation of section 841(a)(1) occurs when the government proves beyond a reasonable doubt that a defendant possessed and intended to distribute a "controlled substance", regardless of whether that substance is cocaine or cocaine base.4 The nature and quantity of the controlled substance are relevant only to sentencing and do not constitute elements of a lesser included offense. See United States v. Smith, 840 F.2d 886, 888 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988) (quantity of controlled substance in defendant's possession pertinent only to sentencing); United States v. Simmons, 725 F.2d 641, 643-644 (11th Cir.), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984) (same). Therefore, the district court correctly denied appellants' proposed lesser included offense instructions.5
13 Finally, appellants contend that their sentences under section 841(b)(1)(A)(iii) (which penalizes offenses involving cocaine base) are invalid because of the statute's failure to define the meaning of cocaine base or otherwise differentiate it from other types of cocaine. This failure, the appellants urge, renders the statute vague, in violation of due process. We think not. When dealing with a vocabulary somewhat more arcane than Guffy's Reader, Congress might well consider using more specific definitions. Here, however, we agree with the District of Columbia Circuit and the Second Circuit that those concerned with the relevant legislation understood cocaine base to refer to crack and intended to enhance penalties for crack dealers. See United States v. Brown, 859 F.2d 974, 976 (D.C.Cir.1988); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Because the evidence supported a verdict that appellants intended to distribute cocaine base, the district court correctly sentenced the appellants.
III
14 For the foregoing reasons, the judgment of the district court is AFFIRMED.
* Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation
1 Fla.Stat.Ann. Sec. 316.614 (West Supp.1989) provides in relevant part: (4) It is unlawful for any person: * * * (b) To operate a motor vehicle in this state unless the person is restrained by a safety belt. * * * (9) Enforcement of this section by state or local law enforcement agencies shall be accomplished only as a secondary action when a driver of a motor vehicle has been detained for a suspected violation of another section of this chapter....
2 Having found that reasonable suspicion justified the initial stop, we need not reach appellants' contention that the stop was pretextual. The issue of whether a stop for a traffic violation--in this case the seat belt offense--is ever a pretext for investigating drug activity arises only when the police lack reasonable suspicion. See United States v. Smith, 799 F.2d 704, 707-708 (11th Cir.1986) (trooper lacked reasonable suspicion to stop car); United States v. Miller, 821 F.2d 546, 549 (11th Cir.1987) (same). Also, we need not address whether appellants' flight from the scene of the initial stop, which involved driving the wrong way down one way streets, constituted new and distinct offenses, which, in themselves, justified the second stop of the Sentra and the officers' recovery of the cocaine
3 21 U.S.C.A. Sec. 841(a)(1) provides that "... it shall be unlawful for any person knowingly or intentionally ... to ... possess with intent to ... distribute ... a controlled substance...."
4 Appellants do not dispute that cocaine base is a controlled substance within the meaning of Title 21. See 21 U.S.C.A. Sec. 812(c), Schedule II(a)(4) (West 1981 and Supp.1989) (defining mixtures of cocaine as controlled substances)
5 We do not find error in the denial of other requested jury instructions | 08-23-2011 | [
"876 F.2d 1521 UNITED STATES of America, Plaintiff-Appellee,v.Tommy Lee WILLIAMS, Leonard Williams, Defendants-Appellants. No. 88-3716. United States Court of Appeals,Eleventh Circuit. July 12, 1989. Wm. J. Sheppard, Elizabeth L. White, Jacksonville, Fla., for Tommy Lee Williams. Lee Fugate, Clearwater, Fla., for Leonard Williams. Ronald T. Henry, Asst. U.S. Atty., Jacksonville, Fla., Joseph C. Wyderko, U.S. Dept. of Justice, Criminal Division, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Middle District of Florida. Before HILL and EDMONDSON, Circuit Judges, and GARZA*, Senior Circuit Judge. HILL, Circuit Judge: 1 A federal jury convicted Tommy Lee and Leonard Williams for their participation in a conspiracy to distribute \"crack\" cocaine in Jacksonville, Florida. In this appeal, we consider, inter alia, whether the stop of appellants' automobile complied with the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.",
"1868, 20 L.Ed.2d 889 (1968), and whether the statute under which the district court sentenced the appellants, 21 U.S.C.A. Sec. 841(b)(1)(A)(iii), violates due process. 2 * In November 1987, Detective Robert Walsh and other members of the Duval County Sheriff's office in Jacksonville, Florida, placed a court-ordered wiretap on the telephone of Henry Alan Mann, a suspected drug trafficker. At 4:48 p.m. on November 13, the detectives intercepted an incoming call from a woman identifying herself as \"Rabbit.\" Rabbit asked one of Mann's associates, \"You want to move something for me [?]\"",
"From these and other words, the detectives determined that Rabbit intended to distribute narcotics to Mann and that Rabbit's true identity was Essie Williams, the appellants' sister. She had been stopped and identified a week earlier by a Sheriff's Department officer after leaving the location of another suspected drug dealer while carrying a large amount of money. Expecting another drug transaction, the detectives began a surveillance of an apartment from where they believed Essie Williams had called Henry Mann. 3 At midnight on November 13, the detectives observed two cars arrive at the apartment complex, a Nissan Sentra and a Blazer, from which one woman and three men emerged. Walsh had never seen the four persons before, but he believed that the woman was Essie Williams and that the men were her three brothers, appellant Tommy Lee Williams, appellant Leonard Williams and Lee James Williams. Walsh based this belief on information and physical descriptions concerning the Williams family which he and other members of his department had gathered during a two to three month investigation. Specifically, the Sheriff's Department had previously investigated Essie Williams in Jacksonville.",
"Also, law enforcement sources in Ft. Lauderdale, Florida, had informed the detectives that the three Williams brothers were known as major suppliers of cocaine in South Florida who had recently begun to make distributions in northern Florida. This information was corroborated by confidential informants in Jacksonville who told detectives that appellant Tommy Lee Williams was supplying crack cocaine to Henry Mann, the target of the wiretap. Thus, when Walsh observed the three men who matched the descriptions of the Williams brothers, he suspected that they were in town to help Essie Williams distribute cocaine. 4 The detectives' surveillance continued, and, at 11:30 a.m. the next day, they observed the Williams brothers leave the apartment and get into the Nissan Sentra.",
"One of them carried a plastic drawstring bag of the type used by athletic stores for customer purchases. The detectives, who had an unmarked car, followed the Sentra. The Sentra exited the apartment complex, turned onto St. Augustine Road, drove at a very high rate of speed, and then suddenly made a U-turn in the middle of the road and returned to the complex. The Sentra circled the apartment complex without stopping. It then came back out onto St. Augustine Road and quickly sped away. Based on his experience, Detective Walsh believed that the Sentra was being driven in a type of counter-surveillance pattern to determine whether someone was following the car.",
"As Walsh later testified, \"[i]t is ... a pattern which I have seen numerous times when an individual ... is hiding something or wants to see if someone is following them....\" Walsh also believed that the erratic driving constituted a traffic violation. However, he did not stop the Sentra because his unmarked car lacked a blue light. Instead, Walsh contacted the dispatch operator to have a uniformed officer stop the Sentra. 5 Officer Bruce Wilde of the Duval County Sheriff's Department responded to the dispatcher's call. Detective Walsh told Officer Wilde to stop the Sentra and to identify the driver. Walsh also stated the stop was part of a drug investigation but did not give the officer any more specific information. After being directed to the Sentra's location, Wilde began to follow it. He noticed that neither the driver nor the front-seat passenger were wearing seat belts, which he believed to be a violation of Florida law.1 Because of Walsh's instructions to stop the car and the seat belt violation, Officer Wilde turned on his blue light, and the Sentra stopped in the right traffic lane. Officer Wilde exited his automobile, approached the Sentra and stood on the driver's side of the car.",
"He asked the driver, appellant Tommy Lee Williams, for his driver's license. Tommy Lee Williams then looked around, put the car in gear and departed, leaving officer Wilde standing in the middle of road. 6 Officer Wilde returned to his vehicle, activated his siren and chased the Sentra for four blocks. Another marked police automobile and Detective Walsh's automobile also pursued the appellants. The Sentra traveled the wrong way on several one-way streets before it stopped. As the car slowed down, the front seat passenger, appellant Leonard Williams, threw the athletic bag out the window, and the bag became caught on a tree limb. Once the car stopped, the officers arrested the three Williams brothers and retrieved the athletic bag, which contained 850 grams of crack cocaine. Thereafter, Walsh returned to the apartment which had been under surveillance.",
"There, Walsh met and spoke with Essie Williams who confirmed that she was traveling with her three brothers and that she was also known as Rabbit. 7 A two count federal indictment charged Tommy Lee and Leonard Williams with conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base, also known as crack, in violation of 21 U.S.C.A. Sec. 846 (West Supp.1989) (Count 1), and with possession with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C.A. Sec.",
"841(a)(1) (West 1981) (Count 2). Prior to trial, the appellants moved to suppress the cocaine, contending that the initial stop of their automobile had violated the Fourth Amendment. After a hearing, the magistrate recommended that the motions be denied and the district court agreed. The jury subsequently convicted the appellants on both counts, and the district court sentenced the appellants pursuant to the 21 U.S.C.A. Sec. 841(b)(1)(A)(iii) (West Supp.1989), which defines the penalties for narcotics offenses involving 50 grams or more of cocaine base. 8 On appeal, appellants challenge the district court's (1) denial of their motion to suppress, (2) its admission of Essie Williams' tape-recorded conversation and certain other evidence during trial, (3) the district court's denial of their requested jury instructions, and (4) their sentences pursuant to section 841(b)(1)(A)(iii). In this opinion, we discuss some, but not all, of appellants' claims and arguments. As to issues not discussed herein, we find appellants' contentions to be without merit.",
"II 9 The appellants contend that the initial stop of their automobile did not comply with the Fourth Amendment since the detectives lacked reasonable suspicion. Our analysis is governed by the principles of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), under which the police may stop and briefly detain a person to investigate a reasonable suspicion that he is involved in criminal activity, even though probable cause is lacking. The Terry rationale also permits police officers to stop a moving automobile based on a reasonable suspicion that its occupants are violating the law. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 678, 83 L.Ed.2d 604 (1985); United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). Reasonable suspicion is determined from the totality of the circumstances, United States v. Sokolow, --- U.S. ----, 109 S.Ct.",
"1581, 1585, 104 L.Ed.2d 1 (1989), and from the collective knowledge of the officers involved in the stop. United States v. Cotton, 721 F.2d 350, 352 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). Although this standard is considerably less demanding than proof of wrongdoing by a preponderance of the evidence and less than probable cause, the Fourth Amendment nevertheless requires that the police articulate facts which provide some minimal, objective justification for the stop. Sokolow, 109 U.S. at 1585. Such facts may be derived from \"various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.\" United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct.",
"690, 695, 66 L.Ed.2d 621 (1981). 10 Here, the wiretap, police and informants' reports, and the detectives' observations yielded enough facts to support a reasonable suspicion that appellants were trafficking in cocaine at the time of the initial stop. The intercepted telephone conversation evidenced that a woman believed to be Essie Williams, who had been detained a week earlier in connection with a narcotics transaction, wanted to distribute cocaine to Henry Mann, also a suspected drug dealer. That conversation led to the surveillance of an apartment where, several hours later, the detectives observed Essie Williams arrive with three men fitting the descriptions of her brothers, appellant Tommy Lee Williams, appellant Leonard Williams and Lee James Williams. The detectives knew that Ft. Lauderdale law enforcement sources suspected the brothers of supplying large quantities of cocaine in South Florida. More importantly, they knew that Tommy Lee Williams was allegedly supplying crack cocaine to Henry Mann.",
"Thus, with the coincidence of Essie Williams' call to Henry Mann and the arrival in Jacksonville of Tommy Lee Williams, Mann's apparent source for crack, the detectives logically suspected that the Williams siblings intended to distribute cocaine jointly. Moreover, after observing the unusual manner in which the Sentra exited the apartment complex, which Detective Walsh interpreted as an evasive tactic intended to detect police surveillance, he reasonably surmised that the appellants were in the process of distributing their crack cocaine. Also, Walsh believed that appellants had violated the traffic laws. Under these circumstances, Officer Wilde's investigative stop complied with the Fourth Amendment. The district court correctly denied appellants' motion to suppress.2 11 Next, appellants complain that the district court failed to instruct the jury on certain lesser included offenses. The indictment charged the appellants with the offenses of violating, and conspiring to violate, 21 U.S.C.A.",
"Sec. 841(a)(1), which prohibits individuals from distributing a \"controlled substance. \"3 The indictment also alleged that the controlled substance involved here was 850 grams of cocaine base. As proof, a government expert testified that the substance found in the appellants' bag was \"cocaine as the free base form,\" also known as crack cocaine. He distinguished crack from mere \"cocaine\", which contains hydrochloric acid and is commonly presented in the media as a powder. Before the case went to the jury, however, appellants requested instructions that they could be found guilty of the lesser included offense of possessing and intending to distribute cocaine, as opposed to cocaine base. The district judge denied this request, and appellants contend that he erred. Appellants' claim is founded on the fact that 21 U.S.C.A. Sec. 841(b)(1)(A)(iii) authorizes a minimum ten-year prison term for distributing 50 grams or more of cocaine base, whereas another provision in section 841(b) requires 5 kilograms of cocaine to trigger the same minimum ten year sentence.",
"See 21 U.S.C.A. Sec. 841(b)(1)(A)(ii)(II). As a result, possession of 850 grams of cocaine base carries a heavier penalty than possession of a like quantity of cocaine. Thus, appellants contend that possession of cocaine must be a lesser included offense and that the jury, which may have disbelieved the expert's testimony, should have been so instructed. We disagree. 12 A violation of section 841(a)(1) occurs when the government proves beyond a reasonable doubt that a defendant possessed and intended to distribute a \"controlled substance\", regardless of whether that substance is cocaine or cocaine base.4 The nature and quantity of the controlled substance are relevant only to sentencing and do not constitute elements of a lesser included offense.",
"See United States v. Smith, 840 F.2d 886, 888 (11th Cir. ), cert. denied, --- U.S. ----, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988) (quantity of controlled substance in defendant's possession pertinent only to sentencing); United States v. Simmons, 725 F.2d 641, 643-644 (11th Cir. ), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984) (same). Therefore, the district court correctly denied appellants' proposed lesser included offense instructions.5 13 Finally, appellants contend that their sentences under section 841(b)(1)(A)(iii) (which penalizes offenses involving cocaine base) are invalid because of the statute's failure to define the meaning of cocaine base or otherwise differentiate it from other types of cocaine. This failure, the appellants urge, renders the statute vague, in violation of due process. We think not. When dealing with a vocabulary somewhat more arcane than Guffy's Reader, Congress might well consider using more specific definitions. Here, however, we agree with the District of Columbia Circuit and the Second Circuit that those concerned with the relevant legislation understood cocaine base to refer to crack and intended to enhance penalties for crack dealers. See United States v. Brown, 859 F.2d 974, 976 (D.C.Cir.1988); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987), cert.",
"denied, --- U.S. ----, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Because the evidence supported a verdict that appellants intended to distribute cocaine base, the district court correctly sentenced the appellants. III 14 For the foregoing reasons, the judgment of the district court is AFFIRMED. * Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation 1 Fla.Stat.Ann. Sec. 316.614 (West Supp.1989) provides in relevant part: (4) It is unlawful for any person: * * * (b) To operate a motor vehicle in this state unless the person is restrained by a safety belt. * * * (9) Enforcement of this section by state or local law enforcement agencies shall be accomplished only as a secondary action when a driver of a motor vehicle has been detained for a suspected violation of another section of this chapter.... 2 Having found that reasonable suspicion justified the initial stop, we need not reach appellants' contention that the stop was pretextual. The issue of whether a stop for a traffic violation--in this case the seat belt offense--is ever a pretext for investigating drug activity arises only when the police lack reasonable suspicion. See United States v. Smith, 799 F.2d 704, 707-708 (11th Cir.1986) (trooper lacked reasonable suspicion to stop car); United States v. Miller, 821 F.2d 546, 549 (11th Cir.1987) (same).",
"Also, we need not address whether appellants' flight from the scene of the initial stop, which involved driving the wrong way down one way streets, constituted new and distinct offenses, which, in themselves, justified the second stop of the Sentra and the officers' recovery of the cocaine 3 21 U.S.C.A. Sec. 841(a)(1) provides that \"... it shall be unlawful for any person knowingly or intentionally ... to ... possess with intent to ... distribute ... a controlled substance....\" 4 Appellants do not dispute that cocaine base is a controlled substance within the meaning of Title 21. See 21 U.S.C.A. Sec. 812(c), Schedule II(a)(4) (West 1981 and Supp.1989) (defining mixtures of cocaine as controlled substances) 5 We do not find error in the denial of other requested jury instructions"
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status • The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . • This action is responsive to the following communication: an amendment filed on 6/30/2022.
Response to Arguments • Applicant’s arguments, see pages 10-15 filed 6/30/2022, with respect to claims 1-20 have been fully considered and are persuasive. The cited prior arts rejection of said claims under 35 U.S.C. 102(a)(2) has been withdrawn.
Allowable Subject Matter • Claims 1-20 are allowed. The following is an examiner’s statement of reasons for allowance: The cited prior arts of record along with the updated prior arts searches fail to yield any references (e.g. either singular or combination of references) that teach and/or suggest “access a computer programming script comprising a rule clement having a machine-readable condition element that specifies conditional logic and a machine- readable action clement that specifies an action to be performed based on the conditional logic: convert the machine-readable condition element of the rule element into a natural-language condition sentence portion, including causing the processor to parse the machine-readable condition element to identify condition tokens including a condition phrase, a left-hand operand, an operator phrase, and a right-hand operand, map values of the identified condition tokens to natural-language words, and join the mapped words into the natural-language condition sentence portion; convert the machine-readable action element of the rule element into a natural-language action sentence portion, including causing the processor to parse the machine-readable action clement to identify action tokens, map values of the identified action tokens to natural-language phrases, and join the mapped phrases into the natural-language action sentence portion” as cited in claim 1. The same also applies to claims 11 and 17 due to similar claimed features/limitations as cited in claim 1.
---Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THIERRY L PHAM whose telephone number is (571)272-7439. The examiner can normally be reached M-F, 11-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benny Tieu can be reached on (571)272-7490. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/THIERRY L PHAM/Primary Examiner, Art Unit 2674 | 2022-07-16T16:36:28 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status • The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . • This action is responsive to the following communication: an amendment filed on 6/30/2022. Response to Arguments • Applicant’s arguments, see pages 10-15 filed 6/30/2022, with respect to claims 1-20 have been fully considered and are persuasive. The cited prior arts rejection of said claims under 35 U.S.C. 102(a)(2) has been withdrawn. Allowable Subject Matter • Claims 1-20 are allowed. The following is an examiner’s statement of reasons for allowance: The cited prior arts of record along with the updated prior arts searches fail to yield any references (e.g.",
"either singular or combination of references) that teach and/or suggest “access a computer programming script comprising a rule clement having a machine-readable condition element that specifies conditional logic and a machine- readable action clement that specifies an action to be performed based on the conditional logic: convert the machine-readable condition element of the rule element into a natural-language condition sentence portion, including causing the processor to parse the machine-readable condition element to identify condition tokens including a condition phrase, a left-hand operand, an operator phrase, and a right-hand operand, map values of the identified condition tokens to natural-language words, and join the mapped words into the natural-language condition sentence portion; convert the machine-readable action element of the rule element into a natural-language action sentence portion, including causing the processor to parse the machine-readable action clement to identify action tokens, map values of the identified action tokens to natural-language phrases, and join the mapped phrases into the natural-language action sentence portion” as cited in claim 1. The same also applies to claims 11 and 17 due to similar claimed features/limitations as cited in claim 1. ---Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee.",
"Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THIERRY L PHAM whose telephone number is (571)272-7439. The examiner can normally be reached M-F, 11-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benny Tieu can be reached on (571)272-7490. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov.",
"Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /THIERRY L PHAM/Primary Examiner, Art Unit 2674"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-24.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
527 F.2d 129 UNITED STATES of America, Plaintiff-Appellee,v.Nick SENAK, Defendant-Appellant. No. 74--1965. United States Court of Appeals,Seventh Circuit. Argued June 10, 1975.Decided Oct. 23, 1975.Rehearing and Rehearing En Banc Denied Nov. 25, 1975.Certiorari Denied March 29, 1976.See 96 S.Ct. 1500.
Max Cohen, Gary, Ind., for defendant-appellant. William L. Gardner, Atty., U.S. Dept. of Justice, Washington, D.C., John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee. Before CLARK, Associate Justice,* FAIRCHILD, Chief Judge, and PELL, Circuit Judge. PELL, Circuit Judge.
1 The defendant, Nick Senak, a lawyer, was charged with violation of 18 U.S.C. § 242 in a five count indictment. The indictment in substance charged Senak with having used his office as pauper attorney of the Lake County, Indiana, Criminal Court, to exact sums of money from a person he had been appointed to represent (Count I) and from relatives and friends of persons he had been appointed to represent (Counts II-V) by stating to such persons that he would not adequately represent the persons he had been appointed to represent unless he were paid amounts in addition to his salary; that this conduct deprived those persons of property without due process. On motion of the defendant the indictment was dismissed. The judgment of dismissal was reversed by this court and the case was remanded for further proceedings. United States v. Senak, 477 F.2d 304 (7th Cir. 1973), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105. At the trial which followed, Count V was dismissed on motion of the Government on the morning of trial. At the conclusion of the Government's evidence, the district court sustained the defendant's motion for acquittal as to Count I. The jury returned a verdict of guilty on Counts II and IV (concerning James Cadle and Honore Gilarski) and not guilty on Count III (concerning Willie Drake). The defendant was sentenced to a term of imprisonment for 60 days on each of Counts II and IV to run concurrently and was fined in the total amount of $2000.00.
2 On this appeal, the defendant's contentions are directed to evidentiary matters (admission of a witness's statement as past recollection recorded; admissions of testimony of past similar acts; cross-examination of three defense witnesses; and a remark by Government counsel in closing argument), jury instructions, and denial of motions for judgment of acquittal.
3 * The evidence viewed as it must be in the light most favorable to the Government's position with regard to the two Counts on which there were convictions is in substance as follows.
A. Count II
4 Cadle who lived in Detroit learned from a telephone call from his mother that his father, whom he knew to be 'broke' was charged with a crime in Lake County and that he was represented by Senak. The defendant was appointed on September 20, 1966, as pauper attorney to represent the father who according to the court entry was 'in Court without funds to employ counsel.' Cadle borrowed $100 from a friend and went to Gary. Upon arrival there he had a telephone conversation with Senak who 'said that he wasn't representing anyone until he has his fee, and it was $500.' The following day Cadle went to Senak's office and saw a sign on the desk which said 'Pauper's Attorney.' The office was in the court house at the county seat. Cadle gave Senak the $100 and told him he would have to borrow the balance. Cadle told Senak that he thought his father was an alcoholic and should be in a hospital rather than in a prison. Senak agreed and said that if Cadle could come up with additional money that 'we can see that he don't go' to prison and 'we'll get him in a hospital.' Cadle did not pay the additional amount. The father was sentenced to imprisonment on a guilty plea. At the time the plea was entered on October 10, 1966, Senak withdrew as pauper attorney but appeared as counsel for the father. The son was unaware of this.
5 Cross-examination developed some conflicts in Cadle's testimony. However, we are not the trier of facts and the conflicts were not sufficient to cause us to disregard the above summary as having been established to the satisfaction of the jury.
B. Count IV
6 Steve LaPosi was charged by affidavit filed on August 12, 1967, with statutory rape (No 39254, hereinafter No. 54) and by affidavit filed on August 14, 1967, with assault and battery with intent to gratify sexual desires (No. 39256, hereinafter No. 56). On September 13, 1967, the court's entry in No. 54 showed that the defendant was without funds and that the court appointed Pauper Attorney Senak to represent him. No similar appointment appears in the docket sheet of No. 56; however, on September 22, slightly more than a week after the defendant had been judicially found to be without funds, the defendant by 'Atty Nick Senak, files verified petition to establish' the defendant as being a criminal sexual psychopathic person. The status of Senak at the outset in No. 56 is not clear from the record. Senak testified in response to a leading question from his own counsel that he appeared as private counsel in No. 56 on September 22.1 At one point, Senak testified, '(p)ursuant to the one sheet, it shows my appointment. Why the other sheet wasn't brought in at the same time to show my appointment, I can't tell you.' This would appear to suggest that he had been appointed in the second case but that the appropriate entry had not been made. The next question concerned Senak being contacted by one (Honore) Gilarski. The following then appears in Senak's testimony:
7 'Q And would that have been before or about on September 22, 1967, when you appeared as private counsel in Cause No. 39256?
8 A That would be, as I remember, and at the same time--the other sheet I interviewed him and at the time I entered my appearance in the sheet you're talking about, I brought in the other sheet. And I told the Court to--because Mr. LaPosi wanted to retain me. And he said that a girl-friend--I believe he said that he was going to marry--was going to pay his attorney's fees. I brought in both sheets at the same time as the sheet that shows that I was appearing as private counsel.'
9 Senak then returned to the subject of Gilarski, testifying that he told her what LaPosi was charged with, that the cases would have to be consolidated, that LaPosi had told her he wanted Senak as his attorney and she had said she was willing to pay the attorney's fees, that he was permitted to enter an appearance for LaPosi and would do the best he could under the circumstances and the type of case involved, that she would retain any lawyer she wanted but she wanted Senak because he was familiar with the case and that she gave him some money at that time and some more later.
10 Gilarski, the girl friend of LaPosi, who was the Government witness on Count IV, testified that she first came to know Steve LaPosi in March or April of 1968, which was at least one half a year after the first contact Senak's testimony would seem to say he, Senak, had had with her about LaPosi's criminal prosecution. The docket entry in No. 56 shows that on March 22, 1968, LaPosi was A.W.O.L. from the Dr. Norman M. Beatty Memorial Hospital at which he had been earlier accepted in accordance with the trial court's commitment of him to the Division of Mental Health. Gilarski testified that she first became acquainted with LaPosi about a week after he had run away from the hospital.
11 Gilarski also testified that he said if she gave him any money in regard to 'this case' that he would have 'to withdraw as a Court-represented attorney,' and appear as a private attorney. Senak did not withdraw as pauper attorney in No. 54 until July 9, 1969, the date of the one day trial in that case upon which LaPosi was found not guilty. The two cases were never consolidated and the record reflects no effort to achieve that end. Gilarski did not know that there was an assault and battery case, No. 56, until after the trial in No. 54. At that time Senak asked for about $700.00 additional 'and that the total of $1200.00 that he (Nick Senak) had requested was to be split between a couple of other people. (She) could only pay about $350 sometime in the late Summer.' On September 24, 1968, the State dismissed, being unable to produce any of its witnesses.
12 According to Gilarski, her first contact with Senak was by telephone. The conversation was initiated by Senak and he asked her to pay about $500.00 to defend Steve. She asked what the charges against LaPosi were and Senak told her it was rape.
13 'A. Well, I asked him what he was doing to assist Steve, and he said at that time he hadn't had a chance to talk to Steve since he had been brought from the Beatty Hospital back to the County Jail. He wasn't even sure, he told me at that time, if he was still assigned to the case.'
14 Gilarski also testified that during the telephone conversation Senak said '(t) hat Steve didn't have much of a chance, but that if I came up with some money, he would have a better chance.'
15 The telephone conversation took place in the Spring of 1968. She met Senak at the court house and made the first payment of $300.00 to him on May 29, 1968, for which he gave her a receipt. She met him again at the court house the day of the trial on No. 54 and paid him the balance. Gilarski was uncertain just when she learned Senak was the pauper attorney. He did say to her that 'Steve would not have much help without me giving him the money.'
II
16 The first contention of Senak is that the district court erred in denying his objection to improper argument by the Government in its final summation. The defense brought in a number of witnesses who testified that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent. Senak then took the stand. On cross-examination, he was asked with regard to several payment transactions which were in evidence, including the Cadle payment, whether he had included the amounts involved in his federal income tax returns for the year. It was indicated that he had not. It also appears that the amounts in question did not appear in Senak's own records which he had turned over to the I.R.S. According to the defendant on this appeal, to offset the unfavorable inference from this line of questioning, on redirect examination he testified that he had voluntarily turned over all of his books and records to the Internal Revenue Service, had answered all questions put to him by the agents and had cooperated with the agents of the Internal Revenue Service. He further testified that as a lawyer he knew that he was entitled not to turn over any of his documents. The following then appears in the transcript:
17 'Q. Did you turn over all of your records to the Internal Revenue Service voluntarily?
18 A. I did, sir.
19 Q. Did they ever have to subpoena any of your records?
20 A. They did not, sir.'
21 He also testified on redirect examination that the first examination by the I.R.S. agents took two days, that there was no criminal charge filed against him in connection with the examination and that he had agreed to a deficiency because it would be prohibitively expensive to contest the matter in view of the small amount involved.
22 Upon recross-examination, the Government brought out that the investigation by the I.R.S. was a criminal investigation and that the deficiencies pertained to both the civil and criminal cases. The deficiencies in the criminal investigation for 1965 of $3,225 and for 1966 of $4,500 were identified by Senak as being possibly correct amounts. Upon redirect, Senak testified that he was an attorney and knew the law and would not have volunteered any records to the I.R.S. if he had committed a wilful fraud, knowing in such case that he would be subject to criminal prosecution.
23 In the opening summation argument of the Government, counsel after adverting generally to the evidence of guilt, referred to the parade of character witnesses. 'Those witnesses,' he stated, 'did not look at Nick Senak's tax returns, or did not talk to his clients.' Defense counsel responded:
24 'And this man has been under investigation. The I.R.S. couldn't get him. So they came at him with this. Is this the conduct of a man who feels that he has committed a criminal offense? If he felt that he was cheating, defrauding the Government, not paying his taxes, a man who is a criminal defense lawyer says to the I.R.S.: 'Here. Take all my records. Look at them. I'll talk to you about everything. I'll make statements to you,' which he did.
25 'Is this the mark of guilt? No, this is the mark of a free and honest conscience. If you have something to hide and you know the I.R.S. is breathing down your neck, a criminal tax investigation, particularly a criminal defense lawyer, he is not going to say to them, 'Here are my books and records. Here, use my adding-machine, too. I'll help you convict me."
26 In the Government's closing argument, counsel referred to the income not reported and argued that if a person has a lawful right to that money, if he is an ethical person, he should report that as his fees. 'Maybe he was cooperative with the Internal Revenue Service, but if he knows full well that if you don't hand the man the documents, then he's going to hand you a subpoena. It's as clear-cut as that.' Defense counsel objected to the statement on the ground that a taxpayer in a criminal investigation does not have to volunteer anything. The trial court denied the objection, observing that he thought the defense comment was erroneous. After further colloquy, Government counsel concluded the particular subject by observing that it showed guilty knowledge.
27 The defendant's claim of reversible error appears to be primarily based upon the Fifth Amendment ground that an accused cannot be compelled to give evidence against himself in a criminal proceeding and is thereby protected from the compulsory production of books and papers that would tend to incriminate him, citing U.S. v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Curcio v. U.S., 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); U.S. v. Cohen, 388 F.2d 464 (9th Cir. 1967); 58 Am.Jur. Witnesses, Sec. 69, p. 62, et seq. (1948). The gist of the argument is that the jury was misled into believing that the defendant's cooperation with the tax authorities was a sham and subterfuge since the Government could obtain the same information by subpoena.
28 As an initial matter, it is not as clear as the defendant would have us believe that an I.R.S. summons could not have forced the production of the records. In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), it was held that the use of the I.R.S. summons is authorized in investigating what may turn out to be criminal conduct so long as it is issued in good faith and prior to a recommendation for criminal prosecution. A discussion of guide-lines for enforcement of such a summons and of the manner in which the summoned individual can claim constitutional privilege is set forth in United States v. Awerkamp, 497 F.2d 832 (7th Cir. 1974). The record does not help us here. It is apparent that the investigation had criminal aspects but there is no showing as to whether prosecution had been authorized. It is clear that it never occurred. We cannot say that the district court was incorrect in characterizing as erroneous the defense comment that a taxpayer in a criminal investigation does not have to volunteer anything.
29 We do not, however, deem it necessary to resolve this question. The first reference to the use of a subpoena to secure records did not come from the Government but occurred during the redirect examination of Senak when his own attorney, during the course of putting a gloss on his client's openness, hiding-nothing attitude, asked Senak if they ever had to subpoena any of his records. All that the prosecutor said was that if one doesn't hand over the records he will be handed a subpoena. We do not agree with the defendant that this necessarily implies more than it says, i.e., that he would have had to comply with a subpoena or summons. Under any circumstances, upon the issuance of a summons Senak would have found himself in the undesirable position for a lawyer of denying compliance because to do so might incriminate him.
30 Colloquies of the sort which developed here mostly out of the fact that a substantial part of the defense was the good character of the defendant tend to resemble a snowball being pushed back and forth across an open field. The size and scope increase with each directional roll. In viewing this give-and-take which occurs in vigorously contested litigation, our principal inquiry is whether the prosecutorial remarks deprived the defendant of a fair trial. See United States v. Cook, 432 F.2d 1093, 1106--08 (7th Cir. 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971). Viewing the argument as a whole, see United States v. Greene, 497 F.2d 1068, 1084 (7th Cir. 1974), and bearing in mind that the comment anent the subpoena was the culmination of the opening defense gambit that Senak did not require a subpoena to produce his records, we are not persuaded that the argument of the Government counsel brought about an unfair trial.
III
31 Senak next contends that the district court erred in permitting the statement provided by Honore Gilarski to the FBI to be admitted as substantive evidence under the hearsay rule exception of past recollection recorded. The statement in question had been taken by two FBI agents on February 11, 1971. When Gilarski stated that she could not remember any further conversation with Senak, she was handed the two page statement for the purpose of refreshing her recollection. Upon the completion of her examination of the document, she stated that her recollection was not refreshed as to conversations she had with Senak in 1968. The Government then moved to admit the statement into evidence as past recollection recorded. After a spirited colloquy, the court indicated that it would admit the statement if the witness testified that she had read it entirely and it was true and correct. The statement was then produced and the witness testified that that part which read, 'I Honore L. Gilarski, have read this and one other handwritten page, and understand it, and it is true,' was in her own handwriting. She was then asked and responded:'Q. Mrs. Gilarski, was this a true statement at the time you were interviewed by the FBI Agents in 1961?
A. Yes.'2
32 The statement was then admitted. Numerous deficiencies in the procedure are urged, not all of which were presented to the district court. We do not conceive that any of these were deliberately waived in the trial court as a tactical matter, or for other reasons and will consider each of the asserted deficiencies. Nevertheless, in the overall evaluation of the egregiousness of the claimed error we cannot be unmindful that a litigant is not in as secure a position of complaining about a trial court ruling for the first time on appeal as he would if he had specifically brought the matter to the attention of the trial court thereby affording that body the full opportunity of appreciating all incorrect aspects of the action taken or to be taken. Defense counsel objected and objected vigorously in the district court but in this court has added to the list of claimed grounds of deficiency. Our consideration of the claimed deficiencies is not necessarily in the order of their significance.
33 Defendant asserts that the first prerequisite to admission is that, even after having been displayed the memorandum, the witness has no present recollection. We agree with this statement as a general proposition but find that the parties are in disagreement as to what the record reflects by way of lack of present recollection.
34 The defendant summarizes the transcript as follows:
35 'During the course of her direct examination, she testified that, during a telephone conversation, the defendant told her that LaPosi didn't have much of a chance but that if she came up with money he would have a better chance; that she gave the defendant the sum of $300 for which he gave her a receipt. She could not remember any further conversation that took place between them at that time.'
36 We are not aware of the source for typing down further conversation to 'at that time.' The transcript shows:
37 'Q. Mrs. Gilarski, can you tell us, please, if you can recall, what, if anything, did Mr. Senak say to you when you paid him the $300?
38 A. He said nothing.
39 Q. What, if anything, did you say to him as you handed him the $300?
40 A. Nothing.
41 Q. Did any further conversation take place between you?
42 A. Not that I can remember.'
43 Since Gilarski had already said she could not remember anything Senak said to her nor anything she said to him at the time the $300 was paid, it would appear it would have been fruitless to ask about 'any further conversations' 'at that time.' That counsel did not so intend to limit the question is indicated by his next question which was whether her recollection would be refreshed 'about the details of some of these conversations if I were to show you a copy of the statement. . . .' Counsel for the defense was aware of the contents of the statement and would have known that there was a conversation with Senak subsequent to the date of the $300 payment. The objection that the witness had recollected everything to the point in time to which she had testified and therefore there was no reason for the application of past recollection recorded could have been simply stated and equally simply remedied by Government counsel making it clear that he was inquiring as to any further conversations at a subsequent time. Indeed, during the ensuing colloquy, defense counsel stated, '(s)he has testified to Practically everything that is in that statement.' (Emphasis added.)In considering this aspect of the claim, we note a discussion of the requirement of no present recollection in McCormick's Handbook of the Law of Evidence, 2nd ed. § 302, at 714--15 (1972). The author after surveying the areas of disagreement in the application of the principle concludes:
44 'An accommodation of these various aspects may be found in phrasing the requirement as a lack of sufficient present recollection to enable the witness to testify fully and accurately, a standard which is gaining adherents.'
45 In our opinion this standard is consistent with the modern concept of the admissibility of relevant evidence and we adopt it. We hold that there was sufficient shown insofar as lack of present recollection was concerned to entitle the statement to be admitted.
46 Relying on that part of Rule 803(5) of the new Federal Rules of Evidence that if the recorded recollection is admitted, 'the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party,' the defendant claims error in the fact that here the statement was in addition to being read to the jury allowed in as an exhibit and taken to the jury room with other exhibits.
47 The trial in the present case took place in October 1974 and the new Federal Rules of Evidence did not become effective until July 1, 1975. Nevertheless, four years before the effective date, this court in United States v. McCarthy, 445 F.2d 587, 591 (7th Cir. 1971) expressed the belief that the proposed Rules 'should be used by the district courts as guidelines and at least given consideration in the exercise of their discretion in making evidentiary rulings.' Also, in the present case the district court had indicated that it intended to apply the new Rules.
48 Whether receiving the past recollection recorded memorandum as an exhibit when it has not been offered by the adverse party would invariably constitute reversible error, now that Rule 803(5) is effective, as to which we express no opinion, we find no basis for reversing here. In the course of objecting to the evidence, the defendant focused on the reading of the document to the jury:
49 'I further object to it being read to the Jury that singles out this particular exhibit. It's an exhibit and should be treated as any other exhibit, and going to the Jury Room as any other exhibit.'
50 Under these circumstances, to hold that the fact that the document did go into evidence as an exhibit was reversible error would be an overly technical application of a Rule not yet effective which we do not find ourselves compelled to do.
51 The parties appear to be somewhat ambiguous in their treatment of the impact of the statement. The defense refers to a statement of the prosecutor during the objection-colloquy to the effect that the witness's testimony was not too far from what she had said on prior occasions, and then points out additional matters in the statement to which she had not testified during the trial. On the other hand, during the colloquy, defense counsel, as we have previously noted, stated that '(s)he has testified to practically everything that is in that statement.' We are of the opinion that there was sufficient additional incriminatory information in the statement that we could scarcely say that it did not add to the Government's case. Indeed, the very fact of corroboration of a witness's testimony by the fact that she had previously stated substantially that which was in her testimony would strengthen the case. This, however, is not determinative of the question of admissibility.
52 Senak also objects to the fact that twice he was denied the opportunity to voir dire the witness prior to the admission of the statement for the purpose of making a more specific objection. He points out that upon subsequent cross-examination numerous factors developed:
53 '(t)hat the interview took place over a two hour period; that she didn't know if the agents were taking down everything that she said; that they were writing and taking notes; that the statement was a summary of the conversation over a two hour period; that the statement really didn't represent what she said; it represented the FBI Agent's impression of what she said. The statement was not in her hand-writing; she had no recollection of reading the statement over before she signed it; and, after having read the statement over and later heard it read again in open court, she didn't know whether she said any of the things in the statement and that she was not under oath at the time.'
54 A trial judge always has a difficult decision when confronted with the request to voir dire or preliminarily question a witness for the purpose of lodging an objection to testimony about to be offered. This procedure should not be utilized, as it sometimes is, as anticipatory cross-examination for the purpose of devitalizing proposed evidence before it has ever been received. The trial judge, however, can exercise control over the scope of such out-of-order interrogation and can put a stop to it if it exceeds its proper scope. We think the better practice here would have been to permit some voir dire questioning of the witness. However, the defense was permitted to develop fully on cross-examination all of the frailties which it now attributes to the statement. The objection which we deem the most significant one which could have been raised, and which we will treat hereinafter, that of the freshness of the recollection at the time the statement was taken, was obvious on the face of the situation and needed no voir dire. What was developed by cross- examination in view of the explicit testimony of the witness that the statement was true at the time she was interviewed by the FBI agents goes only to the weight to be accorded to the statement. In reviewing the exercise of discretion and that which was developed by the vigorous cross-examination of Gilarski, we note the district court's statement to counsel out of the presence of the jury and before the admission of the statement that '(i)t's obvious the witness is frightened beyond description.' While under our adversary system the scared truthful witness must be just as much subject to searching cross-examination as the glib liar, the trier of fact is given the difficult task of discerning whether matters affecting the weight of the witness's testimony result from a lack of verity or from trepidation.
55 From our reviewing point of view, we, of course, do not ordinarily determine the question of credibility. Nevertheless, in evaluating that which was brought out in cross-examination as either being so destructive as to preclude admissibility or merely being that which is to be considered in the weight-giving process to be performed by the trier of fact we find some illumination in the observation of the judge concerning the witness. Since we view that which was brought out as not precluding admissibility if it had been permitted to be developed on voir dire we are not persuaded that the denial of the opportunity constituted such an abuse of discretion as to require a reversal.
56 On appeal, Senak argues that 'the most apparent defect' in the predicate for admissibility is that it fails to meet the requirement that the memorandum be made when the events were fairly fresh in the memory of the witness. The fact that it was made three years after the event, of course, was just as apparent at the time of the trilal is it is now, yet at no time was this advanced as an objection to the admission and there was no motion to strike the statement on that ground.
57 Not only was the lapse of time obvious on the face of the situation but when the trial judge was in the process of determining whether the statement would be admitted he observed:
58 'McCormick on Evidence says this: I'm going to read it. This is from Section 279 on page 594:
59 'Records of Past Recollection'.
60 'The typical and classic record of Past Recollection was a one-man affair. The verifying witness was the one man who originally observed the facts and the man who wrote them down .. . One deviation from this pattern, however, we have already mentioned. This is the situation where the written statement is made by someone other than the witness, but the witness verifies it for admission by testifying that when his own memory of facts was fresh, he read the memorandum and knew that it was true. Here only the witness who recognized the truth of the memorandum need be called." (Emphasis added.)
61 The quotation by the judge was from the first edition of the Handbook on Evidence by Professor McCormick (1954) and the reference to freshness of memory was incidental to the primary scope of discussion being that of co-operative records and reports. Nevertheless it would appear to us that the reference was more than sufficient to have triggered at that time, not for the first time on appeal, an objection based upon the fact that the statement resulted at an interview taking place some three years after the occurrence of the events related in the statement. Indeed, the reference would appear to be a patent invitation to such an objection. To stress grounds of objection such as that the Government had not produced the FBI agent to testify that he took the witness's statement down verbatim and that this was hearsay as to the defendant could only serve to divert the trial court's attention from that which the defendant on appeal characterizes as the 'most apparent defect.' Our consideration of the present issue must be on the basis that reversal would be required only if we are convinced that there was error so plain and clear that Senak was denied a fair trial.
62 In the same first edition of McCormick from which the district court quoted, the freshness of memory aspect is dealt with separately in § 277, at 591 as follows:
63 'The usual requirement for witnesses and for hearsay declarants that they must have had first-hand knowledge of the facts is enforced here. But the most distinctive requirement is designed to guarantee that this knowledge must have been clearly and accurately remembered by the witness who tenders the writing, as of the time that he made or recognized the correctness of the writing. An older, strict formula, still commonly used, is that the writing must have been made or recognized as correct 'at or near the time' of the events recorded. This limitation has some support in psychological findings. More liberal is the standard often found in the opinions and preferred by Wigmore, namely, at a time when the events were 'fairly fresh' in the memory of the witness. The last test seems the more practical and it should be flexibly administered. It is true that the nearer to the event the more reliable the statement is likely to be, but it is equally true that all statements made substantially nearer to the event that the trial itself suffer less from errors of memory than the testimony of witnesses from purported present recollection on the stand.'3 (Footnotes omitted.)While in at least one case there is a suggestion that the statement must be recorded contemporaneously with the event, Dickinson Supply, Inc. v. Montana-Dakota Utilities Co., 423 F.2d 106, 109 n. 1 (8th Cir. 1970), we believe the better view is that the discretion of the trial judge should not be rigidly bound by an inflexible rule but rather that it should be exercised on a case-by-case basis giving consideration to all pertinent aspects including the lapse of time which reasonably and properly bear upon the likelihood of the statement being an accurate recordation of the event to which the memory related. Of course, the likelihood of accuracy only justifies admission but does not preclude an effort, as in the present case, to persuade the trier of fact that matters in the statement are not factually correct.4
64 It is not unusual to read a record on appeal in which it is clear that the witness who is testifying is many more than three years removed from the events as to which he is testifying. Of course, such a witness is subject to immediate cross-examination. Here while the witness was subject to ultimate cross-examination she was not subjected to this procedure at the time the statement was given, which, if it had occurred, could arguably have resulted in changes or variations in that which she related to the recording agents. Nevertheless, the fact that there is no rule, other than the credibility scrutiny of the trier of fact, which curtails the lapse of time applicable to the live witness on the stand, would suggest that we should not arbitrarily say any given length of time is too long for the statement-giver to have an accurate memory and for a proper application of the past recollection recorded procedure.
65 Here the time was three years. We are unaware of any cases where this amount of time has been involved. We are not unmindful that there are cases in which a much lesser period of time has been held to be fatal to admission. Thus, in Gigliotti v. United Illuminating Company, 151 Conn. 114, 193 A.2d 718, 723 (1963), in which the written statement was signed about six weeks after the event, the reviewing court held that the trial court was fully justified in excluding the statement on the ground that it was not made at or about the time of the events recorded in it. The trial court had based its exclusion on several independent grounds but the appellate court apparently deemed there was no necessity to give consideration to whether in fact the witness's memory might have still been fresh enough to justify admission. An analytical approach to the rule with a discussion of its underlying rationale is found in United States v. FMC Corporation, 306 F.Supp. 1106, 1137--38 (E.D.Pa., 1969). The court there adopted the Wigmore standard that the past recollection must have been sufficiently fresh and vivid to be probably accurate and properly, in our opinion, emphasized that there should be no inflexible criteria for determining when a writing is so remote from the events described as to make it inadmissible. In excluding the proffered grand jury testimony, the judge in FMC gave significance to the memory lapses of the witness at the time of his appearance before the grand jury the transcript of which was the recordation in question and held therefore that there were inadequate safeguards to insure the accuracy and trustworthiness of the grand jury testimony.
66 From our examination of the record in the case before us we have no question but that the district court was convinced that the statement accurately reflected the witness's version of the events as they occurred. Confining the admissible portion to factual matters only, the court excised two phrases which the defendant described as conclusions: '(h)e led me to believe that if I didn't pay him, Steve LaPosi would not have a chance in trial court,' and the italicized portion of the following, 'On the day Steve was found not guilty, Nick Senak contacted me for the purpose of obtaining more money.' The statement as it went into evidence displayed no lapses of memory as was the situation in FMC, supra, but was specific in detail and was not inconsistent with that which the witness was able to recall when on the witness stand during trial. It appears obvious that Gilarski had read the statement as she had initialled several strikeouts in the text. Particularly significant is the fact that stricken and initialled was the phrase, 'I knew that Nick Senak was a pauper's attorney.' The agents had apparently written this in the statement but it had been stricken at the time of writing as having not been known by her at the time to which it related. Also, at one point the word 'fall' as the time of a payment had been stricken and initialled with 'Summer' being substituted. The trial judge could not have been unmindful of the fact that this was not a case where a witness was going back three years in time to attempt to resurrect facts which would have made no particular impact upon her memory. This obviously was no routine series of transactions but involved a dealing with a lawyer in an effort to get 'a chance' for her boyfriend in relation to the criminal charges which had been brought against him.
67 Under all of the unusual circumstances of this case, we are not persuaded that the introduction of the statement requires a reversal.
IV
68 Senak's next contention of error relates to the admission of the testimony of Robert L. Becker, the cousin of one Anna Zolkes, who was charged with voluntary manslaughter and who was represented by the defendant as a private attorney and not as the pauper attorney.5
69 Becker testified that he learned his cousin was represented by an attorney and he met with her and the attorney who was the defendant. He then testified as to a conversation he had with Senak, the substance of which was as follows:
70 He was introduced to the defendant by his cousin, Anna Zolkes; he asked what the charges were; the defendant said they hadn't been brought yet, that this was a preliminary hearing. He asked the defendant about bail bond; the defendant didn't know but said that his cousin was in a lot of trouble; she had killed her husband. The defendant asked Anna Zolkes how much money she brought; Mrs. Zolkes opened her purse and gave him the money she had. He stated the defendant looked through her purse and took the change and said 'If I don't get some money, I can't defend this girl.'
71 The witness asked the defendant how much money he wanted; the defendant said 'I should have a retainer of $3000.00.' The witness said, 'This woman can't afford you; tell me who the pauper attorney is.' The defendant stated, 'I'm the pauper attorney and if I represent her as a pauper attorney she'll go to jail, she'll be charged with first degree murder and get the chair.'
72 There was a bondsman present during the discussion and the witness gave the bondsman either fifty dollars or a hundred dollars and gave the defendant a post-dated check for one hundred and fifty dollars.
73 The defendant concedes that the testimony was offered by the Government for the purpose of showing intent, scheme, motive, design, and plan. The defendant, pointing out that '(o)bjection to the testimony was made on the basis that it did not constitute evidence of similar crimes,' cites to us cases dealing with the matter of the admission of evidence of other similar crimes. This is followed by the assertion, without citation of supporting authority, that the sine qua non for admissibility under any theory is that the evidence constitute a crime. The defendant then concludes that since this was a private relationship there could have been no crime.
74 We do not agree that similar acts introduced to establish motive, intent, the absence of mistake or accident, or a common scheme or plan must necessarily be acts constituting a crime. Probably most of the cases dealing with the precise issue have involved other acts which were of a criminal nature because of the courts' concern that a defendant may be unduly damaged in the eyes of the trier of fact by being considered a common criminal, or in other words, the defendant would be being tried on the purity of his character rather than on his guilt or innocence of the crime charged. The defendant here finds himself in the somewhat dilemmatic position of relying on the cases in which the admissibility of evidence of other crimes was the issue while denying that the acts involved in the testimony amounted to a crime.
75 As Wigmore points out, 1 Wigmore on Evidence, (3rd ed. 1940) § 216 at 712--18 and 2 Id., § 305 at 205--6, the criminality of other acts does not affect their admissibility; either they are relevant or they are not, in which case they are rejected; and the only bearing of their having the quality of criminality is that the undue prejudice involved in acts which are crimes is another reason for excluding them. Here we do not, by the defendant's own argument, have the additional undue prejudice which would flow from other acts of a criminal nature.
76 Rule 311 of the Model Code of Evidence of the American Law Institute is quoted as having been previously applied in the circuit in Swann v. United States, 195 F.2d 689, 690--91 (4th Cir. 1952):
77 'Rule 311. Other Crimes or Civil Wrongs. Subject to Rule 306, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible as tending to prove that he committed a crime or civil wrong on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime or civil wrong or to commit crimes or civil wrongs generally.'
78 The new Federal Rules of Evidence similarly appear to recognize that the other acts need not be crimes. Rule 404(b) provides as follows:
79 'Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' (Emphasis added.)
80 Since the underlying basis of the charge against Senak was that he used his position to extract money from persons under threat of inadequate legal representation unless the sums were paid, we cannot say that the court erred in determining that the evidence was relevant to Senak's plan and intent as reflected in the evidence pertaining to the counts on which he was found guilty. Further, we note that the purpose for which the evidence was admitted was properly delineated in the court's instructions:
81 'If the jury should find beyond a
82 'If the jury should find beyond a reasonable doubt from other evidence in the case that the accused did the act charged in the particular Count under deliberation, then the jury may consider evidence as to an alleged earlier act of a like nature in determining the state of mind or intent with which the accused did the act charged in the particular Count. And where proof of an alleged earlier act of a like nature is established by evidence which is clear and conclusive, the jury may, but is not obliged to, draw the inference and find that, in doing the acts charged in the particular Count then under consideration, the accused acted wilfully and with specific intent, and not because of mistake or accident or other innocent reason.'
83 The defendant also complains that the court refused to hear the testimony of Zolkes outside the hearing of the jury to establish the nature of her relationship with Senak even though the Government had subpoenaed her and she would have been available to testify prior to the Becker testimony. However, the nature of the relationship as being private was not in dispute. Further, the defendant complains that the Government never did call her as a witness. However, it is not shown that she would have established by her testimony any matter other than the private attorney-client relationship which she had, as to which there was no dispute.
84 Finally, on this point, the defendant complains that he was denied the opportunity to show a pattern of lawful conduct to rebut the testimony of Becker. We find no merit in this contention as it appears the defendant was given wide latitude in showing the practices in the Lake County Criminal Court with regard to the conduct of the office of pauper attorney.
V
85 The next contention of error is that the court permitted cross-examination of Senak which showed that he had failed to report on his ledger sheets a $100 payment by a Mrs. Daugherty and that he had reported a $2500 fee with respect to Mrs. Zolkes and that the I.R.S. investigation culminated with an assessment based on a $3400 fee for that particular matter. The gist of the argument is that since there had been no conviction for income tax evasion or similar crime, the evidence should have been excluded.
86 We have previously referred in this opinion to the snowballing development of this subject in connection with the prosecutor's closing argument. On this appeal, the defense confines itself to the Daugherty and Zolkes transactions since neither were the subject of indictment. However, the first push of the snowball was administered with regard to the Cadle fee which was involved in an indictment count on which Senak was being tried.
87 On cross-examination, the defendant testified that he felt he was legally and lawfully entitled to the amount received from Cadle. He was then asked if he had reported this amount on his 1966 income tax return. Counsel objected on the basis that the question was outside the scope of the issues. Before the district court had indicated any ruling on the evidence, Senak, himself, stated, 'I'll answer that question,' and then proceeded to state that if the record indicated the payment had not been reported it was neglect on his part. This was followed by the introduction of the records Senak had turned over to the I.R.S. upon which Senak conceded that there was 'no indication here of Mr. Cadle.'
88 Without determining whether the door may not have been opened by the foregoing development pertaining to Cadle as to the reporting of all fees as to which there had been evidence, we do not agree that the introduction of the evidence required a showing that there had been a criminal conviction. After the evidence was all in it was clear that the evidence only showed that income had been received which had not reached the records. This may or may not be a criminal offense. Senak offered his own reasons for the failure. This was not a case of attempting to impeach a witness by showing that he had been charged with or arrested for the commission of a crime. The evidence, however, could have been found relevant by the trier of fact to the question of Senak's credibility, he having taken the witness stand. A substantial number of witnesses had testified on behalf of the defendant that his reputation for truth and veracity in the community was excellent. Senak contended at trial that all of the fees referred to in evidence were proper and lawful, yet they were not recorded either wholly or in part in his records of receipts.
89 Senak relies upon Rule 608(b) of the new Federal Rules of Evidence pertaining to the use of specific instances of non-criminal conduct. The Government again argues that the Rules were not effective at the time of the trial. Even if they were we do not find great help to the defendant as extrinsic evidence of the conduct of a witness may, under the Rule, be inquired into on cross-examination, in the discretion of the court, if probative of truthfulness or untruthfulness concerning the witness's character in that respect.
90 In our opinion, the district court did not abuse its discretion in deciding that the probative value of the particular evidence outweighed any prejudicial character it may have had. United States v. Kaufman, 453 F.2d 306 (2nd Cir. 1971); Simon v. United States, 123 F.2d 80 (4th Cir. 1941), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555.
VI
91 Robert A. Lucas, a prominent attorney who practiced in the county, was called as a character witness by the defendant and testified, in response to questions couched in the present tense, that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent. The witness who was one of six character witnesses was asked upon cross-examination if he had any knowledge as to the allegations made by the various Government witnesses in regard to this defendant. Senak contends this was error because it involved charges which were in issue in the case, citing the annotation at 47 A.L.R.2d at 1303--06 (1956). That authority, in reliance upon state court cases from Alabama, Kentucky, and Texas, categorically states that '(i)t is error to permit the cross-examination of the defendant's character witness as to whether he has heard that the defendant committed the act for which he is on trial, since such cross-examination must be confined to acts antecedent to the commission of the offense for which the defendant is on trial.' Id. at 1303--04. (Footnote omitted.)
92 The rationale of this statement is probably found in the opinion cited in the annotation of Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980 (1935) to the effect that the fact that the defendant who was indicted in the case on trial should not be proved to be of bad reputation at time of trial solely because of alleged discussion of the alleged offense for which he was on trial since he was presumed innocent until convicted. While this approach has some appeal, we do not deem that the test, at least in federal practice, can be as simply delineated as has been done in the annotation.
93 The difficulties of determination of the scope of cross-examination are analyzed and discussed in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), as a result of which the Court concluded on the matter of appellate review as follows (at 480, 69 S.Ct. at 221):
94 'Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject.' (Footnote omitted.)
95 The subject is also extensively discussed in United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973). There the court while recognizing the dangers of undue prejudice in adversion to conduct subsequent to the events in issue nevertheless laid down a flexible test (at 642):
96 'Some discretion in the matter is more in keeping with the broad latitude which judges have as to the admission of character testimony, and which traditionally they have exercised over the scope of cross-examination, than is any inexorable rule on the subject. A measure of discretion imparts to the proceedings a desirable degree of flexibility to shape the judge's ruling to the 'numerous and subtle considerations' appearing. Not every situation calls for exclusion of questions exploring knowledge of events occurring after the time in issue. Not every subsequent event is an unacceptable topic, nor a topic so prejudicial as to outweigh its probative significance; some events otherwise objectionable perhaps could be made unobjectionable. A decision to permit inquiry respecting subsequent events should, of course, be reached cautiously, and only for the best of reasons. But in the final analysis the matter should be left to careful handling by the trial judge, subject to appellate correction only where mishandling is clear.' (Footnotes omitted.)
97 In examining the question of whether the permission over objection of the particular cross-examination, which was confined to one of the character witnesses only, a lawyer who arguably at least might have been in a better position to evaluate the community reputation of the defendant from the point of view of the impact his conduct as a lawyer had had on his reputation in the community, constituted an abuse of discretion, we note the following. The defendant had been permitted a broad spectrum of proof of good character--honesty, integrity, truth, and veracity. This was not confined to the time of the incidents for which he was being prosecuted or close thereto but was brought down to the time of the trial. The trial court subsequently permitted a lay witness to testify over Government objection that Senak 'is in my relations with him as Assistant Pastor to be (sic) an honest man, to be trustworthy.' Lucas was not asked whether, if he had known the incidents to have been true, it would affect his opinion nor indeed was he asked to express any opinion on the effect of the incidents which were not described to him.6 Finally, at the conclusion of the cross-examination, the witness testified that although he had no personal knowledge of the incidents earlier inquired about he had read newspaper accounts concerning the allegations, and 'of course, in the course of association with other professional persons, I have generally heard of the gist of the Government's charges against the defendant . . . from my past association and experience with the defendant, I would believe that I still feel that he is a man of integrity and honesty.' This he based on Senak's reputation in the community and his association with Senak for 25 years.
98 Under these circumstances, we do not find the permission of the particular cross-examination to be an abuse of discretion.
VII
99 At the time of the involved incidents, the judge of the Lake Criminal Court was John H. McKenna who had appointed the defendant as pauper attorney. McKenna testified extensively as to the custom and usage in the court with respect to pauper attorneys; that during his tenure and that of his predecessors, the pauper attorney was authorized to appear as private counsel for persons he had been appointed to represent if it developed that that person or his friends or relatives had engaged him as private counsel. McKenna also testified over Government objection that there was no difference in the quality of Senak's representation whether he was representing an indigent or a person who had hired him privately and that his representation of defendants was excellent.
100 Prior to cross-examination of McKenna, Senak sought a protective order to prevent the Government from alluding in any way to the trial of McKenna on a charge of federal income tax evasion for which he had been acquitted. The trial judge ruled that the question referring to the trial which the Government had proposed to ask could not be asked unless the witness stated that he was biased against the Government. In response to the question of whether he had any bias against the Government 'in this case,' McKenna replied, 'I have no bias. I'm here as a witness to tell the truth.' However, when asked, 'Specifically, Mr. McKenna, do you have any bias against the Department of Justice?' the witness stated, 'On occasion I have.' The Government then asked permission, which was granted, to pursue the matter of the 'occasion.' After some colloquy as to the form of the question, the witness was asked, with defense objection being denied:
101 'Q. Now you said 'on occasion' in response to my past question, Mr. McKenna. And wouldn't this be the occasion that you are biased against the Department of Justice because they, in fact, prosecuted you, although unsuccessfully, for income tax evasion?'
102 McKenna responded that that was not the reason and when pushed further as whether he had any bias against the Department of Justice on that account he responded, 'Like any other citizen, I have my opinion.' When informed by the court that he had to answer the question with a 'yes' or a 'no,' he responded by the latter. The Government then left the matter.
103 The gist of the defense argument is that the Government was attempting to impeach the credibility of McKenna by showing that he had been accused of a crime and that this was improper in the absence of a conviction. The defense misconceives the basis upon which the court permitted the inquiry. As the court stated,
104 'You're talking about convictions that go to the question of credibility. This is an area where you're talking about bias or prejudice or hostility that might have been engendered.
105 'But until I am persuaded to the contrary by (Government counsel), I am going to hold that if he says that he is not, that he may not ask that next question.'
106 3A Wigmore, Evidence § 949 at 784--90 (Chadbourne rev. 1970) points out that the range of external circumstances from which probable bias may be inferred is infinite and that too much refinement in analyzing their probable effect is out of place. While further observing that exact concrete rules are almost impossible to formulate, the author then has no trouble in being specific as to bearings to be found from the fact that a witness is or has been under indictment:
107 '(1) if the indictment, present or past, was had by the opponent's procurement or for an injury to him, it is relevant as having tended to excite in the witness a hostile feeling to him.' (Id. at 790) (Emphasis in the original.)
108 Here, it may be fairly assumed the Department of Justice had been instrumental in procuring the indictment against McKenna, and therefore, the inquiry might properly have been pursued without McKenna's admission that on occasion he had been biased against the Department of Justice. Having admitted that, we have no difficulty in determining the present contention to be without merit.
VIII
109 While civil rights cases, including criminal prosecutions under 18 U.S.C. § 242, are no strangers to the courts, the factual context of the present case is sufficiently of first impression stature as to impose limitations on the resort to form books for significant portions of the jury instructions. It is not surprising therefore to find that the parties and the court devoted substantial attention to the matter of settling the instructions. We have carefully reviewed the transcript both as it pertains to the objections to instructions to be given and those refused and as it pertains to the actual charge. While the defendant attempts to find reversible error in certain phrases and portions of the instructions given, we are of the opinion that, when those singled-out portions are viewed in the context of the total charge, the jury was fully and fairly informed of the applicable law and the rights of the defendant inherent under our system of justice. Likewise, we find no error in the refusal of certain instructions tendered by the defendant.
110 The defendant first attacks portions of the charge pertaining to a delineation of what the Government was required to prove to demonstrate a violation of section 242. The court in this respect emphasized, and indeed throughout the instructions continued to emphasize, the necessity that the Government had to prove each of the elements of the crime charged beyond a reasonable doubt. Since the indictment charged that the defendant deprived the named persons of property without due process of law, it became necessary for the court to essay into the important, but difficult,7 matter of definition of that concept. The defendant particularly objected to a portion of the instruction claimed to be mandatory but not containing all of the elements of the offense. In the objections, the defendant had specified the missing elements as being the standard of reasonable doubt and not setting out the burden of proof. As a matter of fact, the same paragraph in which the challenged portion appears referred to a finding beyond a reasonable doubt. In any event, the paragraph was just one continuing portion of a definitive instruction pertaining to the statute and the indictment brought under it. The complained-of missing elements were more than adequately covered in the instructions and no one paragraph is expected to include all phases of the litigation.
111 We do not read this portion of the district court's charge as does the defendant. When the jury was told that Senak, as Public Defender, was not entitled to any money from the clients he was appointed to represent, the fact finding body was told nothing more than that during the time he was serving as pauper attorney he was not entitled to other fees. This, of course, did not preclude the proper termination of that relationship and a retained status thereafter if the clients or their relatives had funds for that purpose. This, on the other hand, is not to mean that a person who was entitled to representation under the rules of the court should have extracted from him money on the basis of threat that continuance as or service as pauper attorney would provide a less adequate defense than would be given on a retained basis. As the district court stated in one portion of the instructions: 'As a matter of law, the defendant, Nick Senak, was required, as a Public Defender, to provide his clients with nothing less than adequate legal protection.'
112 The court gave examples of deprivation of property without due process for exemplary purposes; however, in his objections to this portion of the charge, the defendant overlooks that the jury was told each of 'the persons involved in this case who were allegedly deprived of property had the continuing right to use and control his own property, including money, until such time as he voluntarily disposed of it or it was taken from him by means of due process.' (Emphasis added.) Since much of the defense was based upon a claim that the payments were voluntarily made, the issue was squarely posed for the jury as to the circumstances under which the payments in fact were made.
113 We also read the instructions as not saying, as the defendant contends, that once Senak was appointed, the only way money could be secured from the clients or their relatives was through suit by the county attorney. That the jury did not so understand the instructions is indicated by their acquittal on Count III.8 In sum, we do not agree with the contention that the jury was told 'that once the defendant had been appointed as public defender for any person the defendant could under no circumstances take money from that client or friends or relatives of that client.'
114 The defendant also claims error in the portion of the instruction given to the effect that it was necessary to show or to prove that the defendant was thinking in constitutional terms. The defendant's reliance on Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) is misplaced. Here, as contrasted with Screws, the jury was instructed that it was not sufficient to find that the defendant had a generally bad purpose. It was made plain to the jury that specific intent must be established, that 'the Government must prove that the defendant knowingly did an act which the law forbids, . . . purposely intending to violate the law.' During the course of instructing on specific intent, the court made reference to the lack of necessity of showing that the defendant was thinking in constitutional terms. But this phrase appears in Screws: 'The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.' 325 U.S. at 106, 65 S.Ct. at 1037.
115 Finally, with regard to instructions, Senak complains of the refusal to give three of the instructions tendered by him. Each of the instructions concludes by the mandatory, 'you must find the defendant not guilty.' No. 3 would have led to that result if the persons named in each Count were not entitled to the services of pauper counsel. In his objections at trial, the defendant argued that this was particularly important as to the Drake count, but, as noted above, there was an acquittal on that count. In any event, this would have introduced an entirely collateral, irrelevant inquiry. The issue before the court pertained to the deprivation of property in connection with persons charged with state crimes during a time that Senak was the appointed counsel. To decide his guilt or innocence on the basis of whether the state court should not have appointed him or should not have continued the appointment would be an improper criterion. No. 4 would have required an acquittal based in part upon the asserted law that the appointment of a public defender created no rights for relatives or friends of the accused person. However, we are here dealing with whether constitutional rights to property suffered deprivation and these rights were shared by the relatives and friends as well as those charged with the local crimes. No. 5 would have mandated an acquittal if the jury had found that Senak was authorized to appear as private counsel for those he had been appointed to represent and had been authorized to accept payments in such event. However, the indictment was not concerned with this conjectural possibility. What it was concerned with was the allegation that Senak conditioned his representation of persons for whom he had been appointed as pauper attorney on the payment of money to him.9
IX
116 Finally, in a two pronged attack the defendant contends that his motion for judgment of acquittal at the close of the evidence and a similar motion after verdict should have been sustained. The defendant candidly admits that the second portion of the attack is primarily based upon a claim that the indictment fails to state an offense against the United States and that this has been determined adversely to the defendant in the prior appeal. United States v. Senak, supra. We agree with his analysis and respect the defendant for his candor. We, however, upon reexamination of the prior opinion decline to agree that it was erroneous. We find no merit in the contention that the failure to grant the motion for acquittal as to the Count III (Drake) was improper or that it somehow tainted the other verdicts. We have examined the evidence in the light most favorable to the Government as we are bound to do on this appeal and in that light are unable to agree that there was not sufficient evidence to support the verdicts of guilty on Counts II and IV, which counts, as we have previously held, did state an offense against the United States.
117 In his original appellate brief on the present appeal, the defendant, again with candor, argues that '(a)ll that the evidence in this record shows is that the defendant may have illegally charged a fee to perform a pre-existing duty.' That which the jury could have found proven goes farther than that. It adequately supports the verdict of guilt of deprivation of property in violation of 18 U.S.C. § 242.
118 From our review of the entire record and consideration of the various errors urged by the defendant we are convinced he was given a fair trial and that the judgment of conviction does not require reversal. Accordingly, the judgment of the district court is
119 Affirmed.
120 FAIRCHILD, Chief Judge (concurring).
121 With respect to Part VII, cross-examination of Judge McKenna, the questions concerning bias against the Department of Justice perhaps bear the analysis that they were within bounds. I do not think, in any event, that this series of questions affected the outcome of this trial, and therefore would not reverse on their account.
122 I do view them, however, as the type of questionable conduct government counsel should avoid. The suggested analysis is that the fact that the witness has been prosecuted for a federal offense raises some probability that he will color his testimony in favor of another federal defendant. This seems to me gossamer covering for the prosecutor's real hope that the jury will view the witness less favorably because he was charged, though not convicted, with income tax evasion.
* Associate Justice Tom C. Clark (Retired) of the Supreme Court of the United States is sitting by designation
1 Counsel had received permission from the court to get through some of the preliminary matters by leading questions
2 We deem the '1961' reference to be a typographical error in the transcript as the statement was dated 1971 and there is no indication whatsoever of any FBI activity a decade earlier in respect to the investigation of Senak
3 The second edition of McCormick's Handbook (1972) prepared under the editorship of Professor Edward W. Cleary with various professorial contributing authors, has some change of verbiage on the subject but both texts adhere to favoring a more liberalized view on admissibility. The second edition text is as follows: 'The writing must have been prepared or recognized as correct at a time close to the event. Some opinions use the older strict formulation that requires the writing to have been made or recognized as correct 'at or near the time' of the events recorded. This finds some support in psychological research suggesting that a rapid rate of forgetting occurs within the first two or three days following the observation of the event. But the tendency seems to be towards acceptance of the formulation favored by Wigmore which would require only that the writing be made or recognized at a time when the events were fairly fresh in the mind of the witness. No precise formula can be applied to determine whether this test has been met; perhaps the best rule of thumb is that the requirement is not met if the time lapse is such, under the circumstances, as to suggest that the writing is not likely to be accurate.' (Footnotes omitted.) (Sec. 301 at 714.)
4 We are not impressed by the Government's explanation that the witness was not interviewed until 1971 because the Government's investigation did not begin until that time. The question is whether when the witness was interviewed was her memory fairly fresh
5 While Becker testified that to his knowledge, Anna Zolkes was entirely destitute and had been for months, it is clear that she had never made any request for pauper counsel and that the defendant was never formally appointed as pauper counsel in her case
6 A typical question was: 'Have you any knowledge as to allegations by Honore Gilarski as to this defendant?'
7 'But there is no table of weights and measures for ascertaining what constitutes due process.' Mr. Justice Frankfurter in Burns v. Wilson, 346 U.S. 137, 149, 73 S.Ct. 1045, 1052, 97 L.Ed. 1508 (1953)
8 In Count III, Senak was charged with depriving Ernest Drake of $180 to defend Drake's nephew. On cross-examination, it was developed that the money came from the sale of a motor bike which belonged to the nephew. The jury could have concluded that Ernest Drake was not deprived of any of his own property and, of course, the money was not paid by virtue of a suit for recoupment by the county attorney
9 The issue was succinctly put by defense counsel in his final summation: '(i)f you are convinced beyond a reasonable doubt that this man threatened these people with inadequate representation, yes, you should find him guilty.' | 08-23-2011 | [
"527 F.2d 129 UNITED STATES of America, Plaintiff-Appellee,v.Nick SENAK, Defendant-Appellant. No. 74--1965. United States Court of Appeals,Seventh Circuit. Argued June 10, 1975.Decided Oct. 23, 1975.Rehearing and Rehearing En Banc Denied Nov. 25, 1975.Certiorari Denied March 29, 1976.See 96 S.Ct. 1500. Max Cohen, Gary, Ind., for defendant-appellant. William L. Gardner, Atty., U.S. Dept. of Justice, Washington, D.C., John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee. Before CLARK, Associate Justice,* FAIRCHILD, Chief Judge, and PELL, Circuit Judge. PELL, Circuit Judge. 1 The defendant, Nick Senak, a lawyer, was charged with violation of 18 U.S.C. § 242 in a five count indictment. The indictment in substance charged Senak with having used his office as pauper attorney of the Lake County, Indiana, Criminal Court, to exact sums of money from a person he had been appointed to represent (Count I) and from relatives and friends of persons he had been appointed to represent (Counts II-V) by stating to such persons that he would not adequately represent the persons he had been appointed to represent unless he were paid amounts in addition to his salary; that this conduct deprived those persons of property without due process.",
"On motion of the defendant the indictment was dismissed. The judgment of dismissal was reversed by this court and the case was remanded for further proceedings. United States v. Senak, 477 F.2d 304 (7th Cir. 1973), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105. At the trial which followed, Count V was dismissed on motion of the Government on the morning of trial. At the conclusion of the Government's evidence, the district court sustained the defendant's motion for acquittal as to Count I. The jury returned a verdict of guilty on Counts II and IV (concerning James Cadle and Honore Gilarski) and not guilty on Count III (concerning Willie Drake).",
"The defendant was sentenced to a term of imprisonment for 60 days on each of Counts II and IV to run concurrently and was fined in the total amount of $2000.00. 2 On this appeal, the defendant's contentions are directed to evidentiary matters (admission of a witness's statement as past recollection recorded; admissions of testimony of past similar acts; cross-examination of three defense witnesses; and a remark by Government counsel in closing argument), jury instructions, and denial of motions for judgment of acquittal. 3 * The evidence viewed as it must be in the light most favorable to the Government's position with regard to the two Counts on which there were convictions is in substance as follows. A. Count II 4 Cadle who lived in Detroit learned from a telephone call from his mother that his father, whom he knew to be 'broke' was charged with a crime in Lake County and that he was represented by Senak.",
"The defendant was appointed on September 20, 1966, as pauper attorney to represent the father who according to the court entry was 'in Court without funds to employ counsel.' Cadle borrowed $100 from a friend and went to Gary. Upon arrival there he had a telephone conversation with Senak who 'said that he wasn't representing anyone until he has his fee, and it was $500.' The following day Cadle went to Senak's office and saw a sign on the desk which said 'Pauper's Attorney.' The office was in the court house at the county seat. Cadle gave Senak the $100 and told him he would have to borrow the balance. Cadle told Senak that he thought his father was an alcoholic and should be in a hospital rather than in a prison. Senak agreed and said that if Cadle could come up with additional money that 'we can see that he don't go' to prison and 'we'll get him in a hospital.' Cadle did not pay the additional amount. The father was sentenced to imprisonment on a guilty plea.",
"At the time the plea was entered on October 10, 1966, Senak withdrew as pauper attorney but appeared as counsel for the father. The son was unaware of this. 5 Cross-examination developed some conflicts in Cadle's testimony. However, we are not the trier of facts and the conflicts were not sufficient to cause us to disregard the above summary as having been established to the satisfaction of the jury. B.",
"Count IV 6 Steve LaPosi was charged by affidavit filed on August 12, 1967, with statutory rape (No 39254, hereinafter No. 54) and by affidavit filed on August 14, 1967, with assault and battery with intent to gratify sexual desires (No. 39256, hereinafter No. 56). On September 13, 1967, the court's entry in No. 54 showed that the defendant was without funds and that the court appointed Pauper Attorney Senak to represent him. No similar appointment appears in the docket sheet of No. 56; however, on September 22, slightly more than a week after the defendant had been judicially found to be without funds, the defendant by 'Atty Nick Senak, files verified petition to establish' the defendant as being a criminal sexual psychopathic person.",
"The status of Senak at the outset in No. 56 is not clear from the record. Senak testified in response to a leading question from his own counsel that he appeared as private counsel in No. 56 on September 22.1 At one point, Senak testified, '(p)ursuant to the one sheet, it shows my appointment. Why the other sheet wasn't brought in at the same time to show my appointment, I can't tell you.' This would appear to suggest that he had been appointed in the second case but that the appropriate entry had not been made. The next question concerned Senak being contacted by one (Honore) Gilarski. The following then appears in Senak's testimony: 7 'Q And would that have been before or about on September 22, 1967, when you appeared as private counsel in Cause No.",
"39256? 8 A That would be, as I remember, and at the same time--the other sheet I interviewed him and at the time I entered my appearance in the sheet you're talking about, I brought in the other sheet. And I told the Court to--because Mr. LaPosi wanted to retain me. And he said that a girl-friend--I believe he said that he was going to marry--was going to pay his attorney's fees. I brought in both sheets at the same time as the sheet that shows that I was appearing as private counsel.' 9 Senak then returned to the subject of Gilarski, testifying that he told her what LaPosi was charged with, that the cases would have to be consolidated, that LaPosi had told her he wanted Senak as his attorney and she had said she was willing to pay the attorney's fees, that he was permitted to enter an appearance for LaPosi and would do the best he could under the circumstances and the type of case involved, that she would retain any lawyer she wanted but she wanted Senak because he was familiar with the case and that she gave him some money at that time and some more later. 10 Gilarski, the girl friend of LaPosi, who was the Government witness on Count IV, testified that she first came to know Steve LaPosi in March or April of 1968, which was at least one half a year after the first contact Senak's testimony would seem to say he, Senak, had had with her about LaPosi's criminal prosecution.",
"The docket entry in No. 56 shows that on March 22, 1968, LaPosi was A.W.O.L. from the Dr. Norman M. Beatty Memorial Hospital at which he had been earlier accepted in accordance with the trial court's commitment of him to the Division of Mental Health. Gilarski testified that she first became acquainted with LaPosi about a week after he had run away from the hospital. 11 Gilarski also testified that he said if she gave him any money in regard to 'this case' that he would have 'to withdraw as a Court-represented attorney,' and appear as a private attorney. Senak did not withdraw as pauper attorney in No. 54 until July 9, 1969, the date of the one day trial in that case upon which LaPosi was found not guilty.",
"The two cases were never consolidated and the record reflects no effort to achieve that end. Gilarski did not know that there was an assault and battery case, No. 56, until after the trial in No. 54. At that time Senak asked for about $700.00 additional 'and that the total of $1200.00 that he (Nick Senak) had requested was to be split between a couple of other people. (She) could only pay about $350 sometime in the late Summer.' On September 24, 1968, the State dismissed, being unable to produce any of its witnesses. 12 According to Gilarski, her first contact with Senak was by telephone. The conversation was initiated by Senak and he asked her to pay about $500.00 to defend Steve. She asked what the charges against LaPosi were and Senak told her it was rape. 13 'A.",
"Well, I asked him what he was doing to assist Steve, and he said at that time he hadn't had a chance to talk to Steve since he had been brought from the Beatty Hospital back to the County Jail. He wasn't even sure, he told me at that time, if he was still assigned to the case.' 14 Gilarski also testified that during the telephone conversation Senak said '(t) hat Steve didn't have much of a chance, but that if I came up with some money, he would have a better chance.' 15 The telephone conversation took place in the Spring of 1968. She met Senak at the court house and made the first payment of $300.00 to him on May 29, 1968, for which he gave her a receipt. She met him again at the court house the day of the trial on No. 54 and paid him the balance. Gilarski was uncertain just when she learned Senak was the pauper attorney.",
"He did say to her that 'Steve would not have much help without me giving him the money.' II 16 The first contention of Senak is that the district court erred in denying his objection to improper argument by the Government in its final summation. The defense brought in a number of witnesses who testified that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent. Senak then took the stand. On cross-examination, he was asked with regard to several payment transactions which were in evidence, including the Cadle payment, whether he had included the amounts involved in his federal income tax returns for the year. It was indicated that he had not. It also appears that the amounts in question did not appear in Senak's own records which he had turned over to the I.R.S.",
"According to the defendant on this appeal, to offset the unfavorable inference from this line of questioning, on redirect examination he testified that he had voluntarily turned over all of his books and records to the Internal Revenue Service, had answered all questions put to him by the agents and had cooperated with the agents of the Internal Revenue Service. He further testified that as a lawyer he knew that he was entitled not to turn over any of his documents. The following then appears in the transcript: 17 'Q. Did you turn over all of your records to the Internal Revenue Service voluntarily? 18 A. I did, sir. 19 Q. Did they ever have to subpoena any of your records? 20 A.",
"They did not, sir.' 21 He also testified on redirect examination that the first examination by the I.R.S. agents took two days, that there was no criminal charge filed against him in connection with the examination and that he had agreed to a deficiency because it would be prohibitively expensive to contest the matter in view of the small amount involved. 22 Upon recross-examination, the Government brought out that the investigation by the I.R.S. was a criminal investigation and that the deficiencies pertained to both the civil and criminal cases. The deficiencies in the criminal investigation for 1965 of $3,225 and for 1966 of $4,500 were identified by Senak as being possibly correct amounts. Upon redirect, Senak testified that he was an attorney and knew the law and would not have volunteered any records to the I.R.S. if he had committed a wilful fraud, knowing in such case that he would be subject to criminal prosecution.",
"23 In the opening summation argument of the Government, counsel after adverting generally to the evidence of guilt, referred to the parade of character witnesses. 'Those witnesses,' he stated, 'did not look at Nick Senak's tax returns, or did not talk to his clients.' Defense counsel responded: 24 'And this man has been under investigation. The I.R.S. couldn't get him. So they came at him with this. Is this the conduct of a man who feels that he has committed a criminal offense?",
"If he felt that he was cheating, defrauding the Government, not paying his taxes, a man who is a criminal defense lawyer says to the I.R.S. : 'Here. Take all my records. Look at them. I'll talk to you about everything. I'll make statements to you,' which he did. 25 'Is this the mark of guilt? No, this is the mark of a free and honest conscience. If you have something to hide and you know the I.R.S. is breathing down your neck, a criminal tax investigation, particularly a criminal defense lawyer, he is not going to say to them, 'Here are my books and records. Here, use my adding-machine, too. I'll help you convict me.\" 26 In the Government's closing argument, counsel referred to the income not reported and argued that if a person has a lawful right to that money, if he is an ethical person, he should report that as his fees. 'Maybe he was cooperative with the Internal Revenue Service, but if he knows full well that if you don't hand the man the documents, then he's going to hand you a subpoena. It's as clear-cut as that.'",
"Defense counsel objected to the statement on the ground that a taxpayer in a criminal investigation does not have to volunteer anything. The trial court denied the objection, observing that he thought the defense comment was erroneous. After further colloquy, Government counsel concluded the particular subject by observing that it showed guilty knowledge. 27 The defendant's claim of reversible error appears to be primarily based upon the Fifth Amendment ground that an accused cannot be compelled to give evidence against himself in a criminal proceeding and is thereby protected from the compulsory production of books and papers that would tend to incriminate him, citing U.S. v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Curcio v. U.S., 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); U.S. v. Cohen, 388 F.2d 464 (9th Cir.",
"1967); 58 Am.Jur. Witnesses, Sec. 69, p. 62, et seq. (1948). The gist of the argument is that the jury was misled into believing that the defendant's cooperation with the tax authorities was a sham and subterfuge since the Government could obtain the same information by subpoena. 28 As an initial matter, it is not as clear as the defendant would have us believe that an I.R.S. summons could not have forced the production of the records. In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), it was held that the use of the I.R.S. summons is authorized in investigating what may turn out to be criminal conduct so long as it is issued in good faith and prior to a recommendation for criminal prosecution.",
"A discussion of guide-lines for enforcement of such a summons and of the manner in which the summoned individual can claim constitutional privilege is set forth in United States v. Awerkamp, 497 F.2d 832 (7th Cir. 1974). The record does not help us here. It is apparent that the investigation had criminal aspects but there is no showing as to whether prosecution had been authorized. It is clear that it never occurred. We cannot say that the district court was incorrect in characterizing as erroneous the defense comment that a taxpayer in a criminal investigation does not have to volunteer anything.",
"29 We do not, however, deem it necessary to resolve this question. The first reference to the use of a subpoena to secure records did not come from the Government but occurred during the redirect examination of Senak when his own attorney, during the course of putting a gloss on his client's openness, hiding-nothing attitude, asked Senak if they ever had to subpoena any of his records. All that the prosecutor said was that if one doesn't hand over the records he will be handed a subpoena. We do not agree with the defendant that this necessarily implies more than it says, i.e., that he would have had to comply with a subpoena or summons.",
"Under any circumstances, upon the issuance of a summons Senak would have found himself in the undesirable position for a lawyer of denying compliance because to do so might incriminate him. 30 Colloquies of the sort which developed here mostly out of the fact that a substantial part of the defense was the good character of the defendant tend to resemble a snowball being pushed back and forth across an open field. The size and scope increase with each directional roll. In viewing this give-and-take which occurs in vigorously contested litigation, our principal inquiry is whether the prosecutorial remarks deprived the defendant of a fair trial. See United States v. Cook, 432 F.2d 1093, 1106--08 (7th Cir. 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971). Viewing the argument as a whole, see United States v. Greene, 497 F.2d 1068, 1084 (7th Cir.",
"1974), and bearing in mind that the comment anent the subpoena was the culmination of the opening defense gambit that Senak did not require a subpoena to produce his records, we are not persuaded that the argument of the Government counsel brought about an unfair trial. III 31 Senak next contends that the district court erred in permitting the statement provided by Honore Gilarski to the FBI to be admitted as substantive evidence under the hearsay rule exception of past recollection recorded. The statement in question had been taken by two FBI agents on February 11, 1971. When Gilarski stated that she could not remember any further conversation with Senak, she was handed the two page statement for the purpose of refreshing her recollection.",
"Upon the completion of her examination of the document, she stated that her recollection was not refreshed as to conversations she had with Senak in 1968. The Government then moved to admit the statement into evidence as past recollection recorded. After a spirited colloquy, the court indicated that it would admit the statement if the witness testified that she had read it entirely and it was true and correct. The statement was then produced and the witness testified that that part which read, 'I Honore L. Gilarski, have read this and one other handwritten page, and understand it, and it is true,' was in her own handwriting. She was then asked and responded:'Q. Mrs. Gilarski, was this a true statement at the time you were interviewed by the FBI Agents in 1961?",
"A. Yes. '2 32 The statement was then admitted. Numerous deficiencies in the procedure are urged, not all of which were presented to the district court. We do not conceive that any of these were deliberately waived in the trial court as a tactical matter, or for other reasons and will consider each of the asserted deficiencies. Nevertheless, in the overall evaluation of the egregiousness of the claimed error we cannot be unmindful that a litigant is not in as secure a position of complaining about a trial court ruling for the first time on appeal as he would if he had specifically brought the matter to the attention of the trial court thereby affording that body the full opportunity of appreciating all incorrect aspects of the action taken or to be taken. Defense counsel objected and objected vigorously in the district court but in this court has added to the list of claimed grounds of deficiency.",
"Our consideration of the claimed deficiencies is not necessarily in the order of their significance. 33 Defendant asserts that the first prerequisite to admission is that, even after having been displayed the memorandum, the witness has no present recollection. We agree with this statement as a general proposition but find that the parties are in disagreement as to what the record reflects by way of lack of present recollection. 34 The defendant summarizes the transcript as follows: 35 'During the course of her direct examination, she testified that, during a telephone conversation, the defendant told her that LaPosi didn't have much of a chance but that if she came up with money he would have a better chance; that she gave the defendant the sum of $300 for which he gave her a receipt. She could not remember any further conversation that took place between them at that time.' 36 We are not aware of the source for typing down further conversation to 'at that time.'",
"The transcript shows: 37 'Q. Mrs. Gilarski, can you tell us, please, if you can recall, what, if anything, did Mr. Senak say to you when you paid him the $300? 38 A. He said nothing. 39 Q. What, if anything, did you say to him as you handed him the $300? 40 A. Nothing. 41 Q. Did any further conversation take place between you? 42 A. Not that I can remember.' 43 Since Gilarski had already said she could not remember anything Senak said to her nor anything she said to him at the time the $300 was paid, it would appear it would have been fruitless to ask about 'any further conversations' 'at that time.' That counsel did not so intend to limit the question is indicated by his next question which was whether her recollection would be refreshed 'about the details of some of these conversations if I were to show you a copy of the statement. .",
". .' Counsel for the defense was aware of the contents of the statement and would have known that there was a conversation with Senak subsequent to the date of the $300 payment. The objection that the witness had recollected everything to the point in time to which she had testified and therefore there was no reason for the application of past recollection recorded could have been simply stated and equally simply remedied by Government counsel making it clear that he was inquiring as to any further conversations at a subsequent time. Indeed, during the ensuing colloquy, defense counsel stated, '(s)he has testified to Practically everything that is in that statement.' (Emphasis added. )In considering this aspect of the claim, we note a discussion of the requirement of no present recollection in McCormick's Handbook of the Law of Evidence, 2nd ed. § 302, at 714--15 (1972). The author after surveying the areas of disagreement in the application of the principle concludes: 44 'An accommodation of these various aspects may be found in phrasing the requirement as a lack of sufficient present recollection to enable the witness to testify fully and accurately, a standard which is gaining adherents.'",
"45 In our opinion this standard is consistent with the modern concept of the admissibility of relevant evidence and we adopt it. We hold that there was sufficient shown insofar as lack of present recollection was concerned to entitle the statement to be admitted. 46 Relying on that part of Rule 803(5) of the new Federal Rules of Evidence that if the recorded recollection is admitted, 'the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party,' the defendant claims error in the fact that here the statement was in addition to being read to the jury allowed in as an exhibit and taken to the jury room with other exhibits.",
"47 The trial in the present case took place in October 1974 and the new Federal Rules of Evidence did not become effective until July 1, 1975. Nevertheless, four years before the effective date, this court in United States v. McCarthy, 445 F.2d 587, 591 (7th Cir. 1971) expressed the belief that the proposed Rules 'should be used by the district courts as guidelines and at least given consideration in the exercise of their discretion in making evidentiary rulings.' Also, in the present case the district court had indicated that it intended to apply the new Rules.",
"48 Whether receiving the past recollection recorded memorandum as an exhibit when it has not been offered by the adverse party would invariably constitute reversible error, now that Rule 803(5) is effective, as to which we express no opinion, we find no basis for reversing here. In the course of objecting to the evidence, the defendant focused on the reading of the document to the jury: 49 'I further object to it being read to the Jury that singles out this particular exhibit. It's an exhibit and should be treated as any other exhibit, and going to the Jury Room as any other exhibit.'",
"50 Under these circumstances, to hold that the fact that the document did go into evidence as an exhibit was reversible error would be an overly technical application of a Rule not yet effective which we do not find ourselves compelled to do. 51 The parties appear to be somewhat ambiguous in their treatment of the impact of the statement. The defense refers to a statement of the prosecutor during the objection-colloquy to the effect that the witness's testimony was not too far from what she had said on prior occasions, and then points out additional matters in the statement to which she had not testified during the trial. On the other hand, during the colloquy, defense counsel, as we have previously noted, stated that '(s)he has testified to practically everything that is in that statement.' We are of the opinion that there was sufficient additional incriminatory information in the statement that we could scarcely say that it did not add to the Government's case. Indeed, the very fact of corroboration of a witness's testimony by the fact that she had previously stated substantially that which was in her testimony would strengthen the case.",
"This, however, is not determinative of the question of admissibility. 52 Senak also objects to the fact that twice he was denied the opportunity to voir dire the witness prior to the admission of the statement for the purpose of making a more specific objection. He points out that upon subsequent cross-examination numerous factors developed: 53 '(t)hat the interview took place over a two hour period; that she didn't know if the agents were taking down everything that she said; that they were writing and taking notes; that the statement was a summary of the conversation over a two hour period; that the statement really didn't represent what she said; it represented the FBI Agent's impression of what she said.",
"The statement was not in her hand-writing; she had no recollection of reading the statement over before she signed it; and, after having read the statement over and later heard it read again in open court, she didn't know whether she said any of the things in the statement and that she was not under oath at the time.' 54 A trial judge always has a difficult decision when confronted with the request to voir dire or preliminarily question a witness for the purpose of lodging an objection to testimony about to be offered. This procedure should not be utilized, as it sometimes is, as anticipatory cross-examination for the purpose of devitalizing proposed evidence before it has ever been received. The trial judge, however, can exercise control over the scope of such out-of-order interrogation and can put a stop to it if it exceeds its proper scope.",
"We think the better practice here would have been to permit some voir dire questioning of the witness. However, the defense was permitted to develop fully on cross-examination all of the frailties which it now attributes to the statement. The objection which we deem the most significant one which could have been raised, and which we will treat hereinafter, that of the freshness of the recollection at the time the statement was taken, was obvious on the face of the situation and needed no voir dire. What was developed by cross- examination in view of the explicit testimony of the witness that the statement was true at the time she was interviewed by the FBI agents goes only to the weight to be accorded to the statement. In reviewing the exercise of discretion and that which was developed by the vigorous cross-examination of Gilarski, we note the district court's statement to counsel out of the presence of the jury and before the admission of the statement that '(i)t's obvious the witness is frightened beyond description.' While under our adversary system the scared truthful witness must be just as much subject to searching cross-examination as the glib liar, the trier of fact is given the difficult task of discerning whether matters affecting the weight of the witness's testimony result from a lack of verity or from trepidation.",
"55 From our reviewing point of view, we, of course, do not ordinarily determine the question of credibility. Nevertheless, in evaluating that which was brought out in cross-examination as either being so destructive as to preclude admissibility or merely being that which is to be considered in the weight-giving process to be performed by the trier of fact we find some illumination in the observation of the judge concerning the witness. Since we view that which was brought out as not precluding admissibility if it had been permitted to be developed on voir dire we are not persuaded that the denial of the opportunity constituted such an abuse of discretion as to require a reversal. 56 On appeal, Senak argues that 'the most apparent defect' in the predicate for admissibility is that it fails to meet the requirement that the memorandum be made when the events were fairly fresh in the memory of the witness.",
"The fact that it was made three years after the event, of course, was just as apparent at the time of the trilal is it is now, yet at no time was this advanced as an objection to the admission and there was no motion to strike the statement on that ground. 57 Not only was the lapse of time obvious on the face of the situation but when the trial judge was in the process of determining whether the statement would be admitted he observed: 58 'McCormick on Evidence says this: I'm going to read it. This is from Section 279 on page 594: 59 'Records of Past Recollection'. 60 'The typical and classic record of Past Recollection was a one-man affair. The verifying witness was the one man who originally observed the facts and the man who wrote them down .. . One deviation from this pattern, however, we have already mentioned.",
"This is the situation where the written statement is made by someone other than the witness, but the witness verifies it for admission by testifying that when his own memory of facts was fresh, he read the memorandum and knew that it was true. Here only the witness who recognized the truth of the memorandum need be called.\" (Emphasis added.) 61 The quotation by the judge was from the first edition of the Handbook on Evidence by Professor McCormick (1954) and the reference to freshness of memory was incidental to the primary scope of discussion being that of co-operative records and reports. Nevertheless it would appear to us that the reference was more than sufficient to have triggered at that time, not for the first time on appeal, an objection based upon the fact that the statement resulted at an interview taking place some three years after the occurrence of the events related in the statement.",
"Indeed, the reference would appear to be a patent invitation to such an objection. To stress grounds of objection such as that the Government had not produced the FBI agent to testify that he took the witness's statement down verbatim and that this was hearsay as to the defendant could only serve to divert the trial court's attention from that which the defendant on appeal characterizes as the 'most apparent defect.' Our consideration of the present issue must be on the basis that reversal would be required only if we are convinced that there was error so plain and clear that Senak was denied a fair trial. 62 In the same first edition of McCormick from which the district court quoted, the freshness of memory aspect is dealt with separately in § 277, at 591 as follows: 63 'The usual requirement for witnesses and for hearsay declarants that they must have had first-hand knowledge of the facts is enforced here. But the most distinctive requirement is designed to guarantee that this knowledge must have been clearly and accurately remembered by the witness who tenders the writing, as of the time that he made or recognized the correctness of the writing.",
"An older, strict formula, still commonly used, is that the writing must have been made or recognized as correct 'at or near the time' of the events recorded. This limitation has some support in psychological findings. More liberal is the standard often found in the opinions and preferred by Wigmore, namely, at a time when the events were 'fairly fresh' in the memory of the witness. The last test seems the more practical and it should be flexibly administered. It is true that the nearer to the event the more reliable the statement is likely to be, but it is equally true that all statements made substantially nearer to the event that the trial itself suffer less from errors of memory than the testimony of witnesses from purported present recollection on the stand.",
"'3 (Footnotes omitted. )While in at least one case there is a suggestion that the statement must be recorded contemporaneously with the event, Dickinson Supply, Inc. v. Montana-Dakota Utilities Co., 423 F.2d 106, 109 n. 1 (8th Cir. 1970), we believe the better view is that the discretion of the trial judge should not be rigidly bound by an inflexible rule but rather that it should be exercised on a case-by-case basis giving consideration to all pertinent aspects including the lapse of time which reasonably and properly bear upon the likelihood of the statement being an accurate recordation of the event to which the memory related. Of course, the likelihood of accuracy only justifies admission but does not preclude an effort, as in the present case, to persuade the trier of fact that matters in the statement are not factually correct.4 64 It is not unusual to read a record on appeal in which it is clear that the witness who is testifying is many more than three years removed from the events as to which he is testifying. Of course, such a witness is subject to immediate cross-examination. Here while the witness was subject to ultimate cross-examination she was not subjected to this procedure at the time the statement was given, which, if it had occurred, could arguably have resulted in changes or variations in that which she related to the recording agents.",
"Nevertheless, the fact that there is no rule, other than the credibility scrutiny of the trier of fact, which curtails the lapse of time applicable to the live witness on the stand, would suggest that we should not arbitrarily say any given length of time is too long for the statement-giver to have an accurate memory and for a proper application of the past recollection recorded procedure.",
"65 Here the time was three years. We are unaware of any cases where this amount of time has been involved. We are not unmindful that there are cases in which a much lesser period of time has been held to be fatal to admission. Thus, in Gigliotti v. United Illuminating Company, 151 Conn. 114, 193 A.2d 718, 723 (1963), in which the written statement was signed about six weeks after the event, the reviewing court held that the trial court was fully justified in excluding the statement on the ground that it was not made at or about the time of the events recorded in it.",
"The trial court had based its exclusion on several independent grounds but the appellate court apparently deemed there was no necessity to give consideration to whether in fact the witness's memory might have still been fresh enough to justify admission. An analytical approach to the rule with a discussion of its underlying rationale is found in United States v. FMC Corporation, 306 F.Supp. 1106, 1137--38 (E.D.Pa., 1969). The court there adopted the Wigmore standard that the past recollection must have been sufficiently fresh and vivid to be probably accurate and properly, in our opinion, emphasized that there should be no inflexible criteria for determining when a writing is so remote from the events described as to make it inadmissible. In excluding the proffered grand jury testimony, the judge in FMC gave significance to the memory lapses of the witness at the time of his appearance before the grand jury the transcript of which was the recordation in question and held therefore that there were inadequate safeguards to insure the accuracy and trustworthiness of the grand jury testimony. 66 From our examination of the record in the case before us we have no question but that the district court was convinced that the statement accurately reflected the witness's version of the events as they occurred. Confining the admissible portion to factual matters only, the court excised two phrases which the defendant described as conclusions: '(h)e led me to believe that if I didn't pay him, Steve LaPosi would not have a chance in trial court,' and the italicized portion of the following, 'On the day Steve was found not guilty, Nick Senak contacted me for the purpose of obtaining more money.'",
"The statement as it went into evidence displayed no lapses of memory as was the situation in FMC, supra, but was specific in detail and was not inconsistent with that which the witness was able to recall when on the witness stand during trial. It appears obvious that Gilarski had read the statement as she had initialled several strikeouts in the text. Particularly significant is the fact that stricken and initialled was the phrase, 'I knew that Nick Senak was a pauper's attorney.' The agents had apparently written this in the statement but it had been stricken at the time of writing as having not been known by her at the time to which it related. Also, at one point the word 'fall' as the time of a payment had been stricken and initialled with 'Summer' being substituted. The trial judge could not have been unmindful of the fact that this was not a case where a witness was going back three years in time to attempt to resurrect facts which would have made no particular impact upon her memory. This obviously was no routine series of transactions but involved a dealing with a lawyer in an effort to get 'a chance' for her boyfriend in relation to the criminal charges which had been brought against him.",
"67 Under all of the unusual circumstances of this case, we are not persuaded that the introduction of the statement requires a reversal. IV 68 Senak's next contention of error relates to the admission of the testimony of Robert L. Becker, the cousin of one Anna Zolkes, who was charged with voluntary manslaughter and who was represented by the defendant as a private attorney and not as the pauper attorney.5 69 Becker testified that he learned his cousin was represented by an attorney and he met with her and the attorney who was the defendant. He then testified as to a conversation he had with Senak, the substance of which was as follows: 70 He was introduced to the defendant by his cousin, Anna Zolkes; he asked what the charges were; the defendant said they hadn't been brought yet, that this was a preliminary hearing.",
"He asked the defendant about bail bond; the defendant didn't know but said that his cousin was in a lot of trouble; she had killed her husband. The defendant asked Anna Zolkes how much money she brought; Mrs. Zolkes opened her purse and gave him the money she had. He stated the defendant looked through her purse and took the change and said 'If I don't get some money, I can't defend this girl.' 71 The witness asked the defendant how much money he wanted; the defendant said 'I should have a retainer of $3000.00.' The witness said, 'This woman can't afford you; tell me who the pauper attorney is.' The defendant stated, 'I'm the pauper attorney and if I represent her as a pauper attorney she'll go to jail, she'll be charged with first degree murder and get the chair.' 72 There was a bondsman present during the discussion and the witness gave the bondsman either fifty dollars or a hundred dollars and gave the defendant a post-dated check for one hundred and fifty dollars.",
"73 The defendant concedes that the testimony was offered by the Government for the purpose of showing intent, scheme, motive, design, and plan. The defendant, pointing out that '(o)bjection to the testimony was made on the basis that it did not constitute evidence of similar crimes,' cites to us cases dealing with the matter of the admission of evidence of other similar crimes. This is followed by the assertion, without citation of supporting authority, that the sine qua non for admissibility under any theory is that the evidence constitute a crime. The defendant then concludes that since this was a private relationship there could have been no crime. 74 We do not agree that similar acts introduced to establish motive, intent, the absence of mistake or accident, or a common scheme or plan must necessarily be acts constituting a crime. Probably most of the cases dealing with the precise issue have involved other acts which were of a criminal nature because of the courts' concern that a defendant may be unduly damaged in the eyes of the trier of fact by being considered a common criminal, or in other words, the defendant would be being tried on the purity of his character rather than on his guilt or innocence of the crime charged. The defendant here finds himself in the somewhat dilemmatic position of relying on the cases in which the admissibility of evidence of other crimes was the issue while denying that the acts involved in the testimony amounted to a crime.",
"75 As Wigmore points out, 1 Wigmore on Evidence, (3rd ed. 1940) § 216 at 712--18 and 2 Id., § 305 at 205--6, the criminality of other acts does not affect their admissibility; either they are relevant or they are not, in which case they are rejected; and the only bearing of their having the quality of criminality is that the undue prejudice involved in acts which are crimes is another reason for excluding them. Here we do not, by the defendant's own argument, have the additional undue prejudice which would flow from other acts of a criminal nature. 76 Rule 311 of the Model Code of Evidence of the American Law Institute is quoted as having been previously applied in the circuit in Swann v. United States, 195 F.2d 689, 690--91 (4th Cir. 1952): 77 'Rule 311. Other Crimes or Civil Wrongs. Subject to Rule 306, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible as tending to prove that he committed a crime or civil wrong on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime or civil wrong or to commit crimes or civil wrongs generally.'",
"78 The new Federal Rules of Evidence similarly appear to recognize that the other acts need not be crimes. Rule 404(b) provides as follows: 79 'Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' (Emphasis added.) 80 Since the underlying basis of the charge against Senak was that he used his position to extract money from persons under threat of inadequate legal representation unless the sums were paid, we cannot say that the court erred in determining that the evidence was relevant to Senak's plan and intent as reflected in the evidence pertaining to the counts on which he was found guilty. Further, we note that the purpose for which the evidence was admitted was properly delineated in the court's instructions: 81 'If the jury should find beyond a 82 'If the jury should find beyond a reasonable doubt from other evidence in the case that the accused did the act charged in the particular Count under deliberation, then the jury may consider evidence as to an alleged earlier act of a like nature in determining the state of mind or intent with which the accused did the act charged in the particular Count.",
"And where proof of an alleged earlier act of a like nature is established by evidence which is clear and conclusive, the jury may, but is not obliged to, draw the inference and find that, in doing the acts charged in the particular Count then under consideration, the accused acted wilfully and with specific intent, and not because of mistake or accident or other innocent reason.' 83 The defendant also complains that the court refused to hear the testimony of Zolkes outside the hearing of the jury to establish the nature of her relationship with Senak even though the Government had subpoenaed her and she would have been available to testify prior to the Becker testimony.",
"However, the nature of the relationship as being private was not in dispute. Further, the defendant complains that the Government never did call her as a witness. However, it is not shown that she would have established by her testimony any matter other than the private attorney-client relationship which she had, as to which there was no dispute. 84 Finally, on this point, the defendant complains that he was denied the opportunity to show a pattern of lawful conduct to rebut the testimony of Becker. We find no merit in this contention as it appears the defendant was given wide latitude in showing the practices in the Lake County Criminal Court with regard to the conduct of the office of pauper attorney. V 85 The next contention of error is that the court permitted cross-examination of Senak which showed that he had failed to report on his ledger sheets a $100 payment by a Mrs. Daugherty and that he had reported a $2500 fee with respect to Mrs. Zolkes and that the I.R.S. investigation culminated with an assessment based on a $3400 fee for that particular matter. The gist of the argument is that since there had been no conviction for income tax evasion or similar crime, the evidence should have been excluded. 86 We have previously referred in this opinion to the snowballing development of this subject in connection with the prosecutor's closing argument.",
"On this appeal, the defense confines itself to the Daugherty and Zolkes transactions since neither were the subject of indictment. However, the first push of the snowball was administered with regard to the Cadle fee which was involved in an indictment count on which Senak was being tried. 87 On cross-examination, the defendant testified that he felt he was legally and lawfully entitled to the amount received from Cadle.",
"He was then asked if he had reported this amount on his 1966 income tax return. Counsel objected on the basis that the question was outside the scope of the issues. Before the district court had indicated any ruling on the evidence, Senak, himself, stated, 'I'll answer that question,' and then proceeded to state that if the record indicated the payment had not been reported it was neglect on his part. This was followed by the introduction of the records Senak had turned over to the I.R.S. upon which Senak conceded that there was 'no indication here of Mr.",
"Cadle.' 88 Without determining whether the door may not have been opened by the foregoing development pertaining to Cadle as to the reporting of all fees as to which there had been evidence, we do not agree that the introduction of the evidence required a showing that there had been a criminal conviction. After the evidence was all in it was clear that the evidence only showed that income had been received which had not reached the records. This may or may not be a criminal offense. Senak offered his own reasons for the failure. This was not a case of attempting to impeach a witness by showing that he had been charged with or arrested for the commission of a crime.",
"The evidence, however, could have been found relevant by the trier of fact to the question of Senak's credibility, he having taken the witness stand. A substantial number of witnesses had testified on behalf of the defendant that his reputation for truth and veracity in the community was excellent. Senak contended at trial that all of the fees referred to in evidence were proper and lawful, yet they were not recorded either wholly or in part in his records of receipts. 89 Senak relies upon Rule 608(b) of the new Federal Rules of Evidence pertaining to the use of specific instances of non-criminal conduct. The Government again argues that the Rules were not effective at the time of the trial. Even if they were we do not find great help to the defendant as extrinsic evidence of the conduct of a witness may, under the Rule, be inquired into on cross-examination, in the discretion of the court, if probative of truthfulness or untruthfulness concerning the witness's character in that respect.",
"90 In our opinion, the district court did not abuse its discretion in deciding that the probative value of the particular evidence outweighed any prejudicial character it may have had. United States v. Kaufman, 453 F.2d 306 (2nd Cir. 1971); Simon v. United States, 123 F.2d 80 (4th Cir. 1941), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555. VI 91 Robert A. Lucas, a prominent attorney who practiced in the county, was called as a character witness by the defendant and testified, in response to questions couched in the present tense, that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent.",
"The witness who was one of six character witnesses was asked upon cross-examination if he had any knowledge as to the allegations made by the various Government witnesses in regard to this defendant. Senak contends this was error because it involved charges which were in issue in the case, citing the annotation at 47 A.L.R.2d at 1303--06 (1956). That authority, in reliance upon state court cases from Alabama, Kentucky, and Texas, categorically states that '(i)t is error to permit the cross-examination of the defendant's character witness as to whether he has heard that the defendant committed the act for which he is on trial, since such cross-examination must be confined to acts antecedent to the commission of the offense for which the defendant is on trial.' Id. at 1303--04. (Footnote omitted.) 92 The rationale of this statement is probably found in the opinion cited in the annotation of Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980 (1935) to the effect that the fact that the defendant who was indicted in the case on trial should not be proved to be of bad reputation at time of trial solely because of alleged discussion of the alleged offense for which he was on trial since he was presumed innocent until convicted. While this approach has some appeal, we do not deem that the test, at least in federal practice, can be as simply delineated as has been done in the annotation. 93 The difficulties of determination of the scope of cross-examination are analyzed and discussed in Michelson v. United States, 335 U.S. 469, 69 S.Ct.",
"213, 93 L.Ed. 168 (1948), as a result of which the Court concluded on the matter of appellate review as follows (at 480, 69 S.Ct. at 221): 94 'Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject.' (Footnote omitted.) 95 The subject is also extensively discussed in United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973). There the court while recognizing the dangers of undue prejudice in adversion to conduct subsequent to the events in issue nevertheless laid down a flexible test (at 642): 96 'Some discretion in the matter is more in keeping with the broad latitude which judges have as to the admission of character testimony, and which traditionally they have exercised over the scope of cross-examination, than is any inexorable rule on the subject.",
"A measure of discretion imparts to the proceedings a desirable degree of flexibility to shape the judge's ruling to the 'numerous and subtle considerations' appearing. Not every situation calls for exclusion of questions exploring knowledge of events occurring after the time in issue. Not every subsequent event is an unacceptable topic, nor a topic so prejudicial as to outweigh its probative significance; some events otherwise objectionable perhaps could be made unobjectionable. A decision to permit inquiry respecting subsequent events should, of course, be reached cautiously, and only for the best of reasons. But in the final analysis the matter should be left to careful handling by the trial judge, subject to appellate correction only where mishandling is clear.' (Footnotes omitted.)",
"97 In examining the question of whether the permission over objection of the particular cross-examination, which was confined to one of the character witnesses only, a lawyer who arguably at least might have been in a better position to evaluate the community reputation of the defendant from the point of view of the impact his conduct as a lawyer had had on his reputation in the community, constituted an abuse of discretion, we note the following. The defendant had been permitted a broad spectrum of proof of good character--honesty, integrity, truth, and veracity. This was not confined to the time of the incidents for which he was being prosecuted or close thereto but was brought down to the time of the trial. The trial court subsequently permitted a lay witness to testify over Government objection that Senak 'is in my relations with him as Assistant Pastor to be (sic) an honest man, to be trustworthy.' Lucas was not asked whether, if he had known the incidents to have been true, it would affect his opinion nor indeed was he asked to express any opinion on the effect of the incidents which were not described to him.6 Finally, at the conclusion of the cross-examination, the witness testified that although he had no personal knowledge of the incidents earlier inquired about he had read newspaper accounts concerning the allegations, and 'of course, in the course of association with other professional persons, I have generally heard of the gist of the Government's charges against the defendant .",
". . from my past association and experience with the defendant, I would believe that I still feel that he is a man of integrity and honesty.' This he based on Senak's reputation in the community and his association with Senak for 25 years. 98 Under these circumstances, we do not find the permission of the particular cross-examination to be an abuse of discretion. VII 99 At the time of the involved incidents, the judge of the Lake Criminal Court was John H. McKenna who had appointed the defendant as pauper attorney. McKenna testified extensively as to the custom and usage in the court with respect to pauper attorneys; that during his tenure and that of his predecessors, the pauper attorney was authorized to appear as private counsel for persons he had been appointed to represent if it developed that that person or his friends or relatives had engaged him as private counsel.",
"McKenna also testified over Government objection that there was no difference in the quality of Senak's representation whether he was representing an indigent or a person who had hired him privately and that his representation of defendants was excellent. 100 Prior to cross-examination of McKenna, Senak sought a protective order to prevent the Government from alluding in any way to the trial of McKenna on a charge of federal income tax evasion for which he had been acquitted. The trial judge ruled that the question referring to the trial which the Government had proposed to ask could not be asked unless the witness stated that he was biased against the Government. In response to the question of whether he had any bias against the Government 'in this case,' McKenna replied, 'I have no bias. I'm here as a witness to tell the truth.'",
"However, when asked, 'Specifically, Mr. McKenna, do you have any bias against the Department of Justice?' the witness stated, 'On occasion I have.' The Government then asked permission, which was granted, to pursue the matter of the 'occasion.' After some colloquy as to the form of the question, the witness was asked, with defense objection being denied: 101 'Q. Now you said 'on occasion' in response to my past question, Mr. McKenna.",
"And wouldn't this be the occasion that you are biased against the Department of Justice because they, in fact, prosecuted you, although unsuccessfully, for income tax evasion?' 102 McKenna responded that that was not the reason and when pushed further as whether he had any bias against the Department of Justice on that account he responded, 'Like any other citizen, I have my opinion.' When informed by the court that he had to answer the question with a 'yes' or a 'no,' he responded by the latter. The Government then left the matter. 103 The gist of the defense argument is that the Government was attempting to impeach the credibility of McKenna by showing that he had been accused of a crime and that this was improper in the absence of a conviction.",
"The defense misconceives the basis upon which the court permitted the inquiry. As the court stated, 104 'You're talking about convictions that go to the question of credibility. This is an area where you're talking about bias or prejudice or hostility that might have been engendered. 105 'But until I am persuaded to the contrary by (Government counsel), I am going to hold that if he says that he is not, that he may not ask that next question.' 106 3A Wigmore, Evidence § 949 at 784--90 (Chadbourne rev. 1970) points out that the range of external circumstances from which probable bias may be inferred is infinite and that too much refinement in analyzing their probable effect is out of place.",
"While further observing that exact concrete rules are almost impossible to formulate, the author then has no trouble in being specific as to bearings to be found from the fact that a witness is or has been under indictment: 107 '(1) if the indictment, present or past, was had by the opponent's procurement or for an injury to him, it is relevant as having tended to excite in the witness a hostile feeling to him.' (Id. at 790) (Emphasis in the original.) 108 Here, it may be fairly assumed the Department of Justice had been instrumental in procuring the indictment against McKenna, and therefore, the inquiry might properly have been pursued without McKenna's admission that on occasion he had been biased against the Department of Justice. Having admitted that, we have no difficulty in determining the present contention to be without merit. VIII 109 While civil rights cases, including criminal prosecutions under 18 U.S.C. § 242, are no strangers to the courts, the factual context of the present case is sufficiently of first impression stature as to impose limitations on the resort to form books for significant portions of the jury instructions. It is not surprising therefore to find that the parties and the court devoted substantial attention to the matter of settling the instructions.",
"We have carefully reviewed the transcript both as it pertains to the objections to instructions to be given and those refused and as it pertains to the actual charge. While the defendant attempts to find reversible error in certain phrases and portions of the instructions given, we are of the opinion that, when those singled-out portions are viewed in the context of the total charge, the jury was fully and fairly informed of the applicable law and the rights of the defendant inherent under our system of justice. Likewise, we find no error in the refusal of certain instructions tendered by the defendant. 110 The defendant first attacks portions of the charge pertaining to a delineation of what the Government was required to prove to demonstrate a violation of section 242. The court in this respect emphasized, and indeed throughout the instructions continued to emphasize, the necessity that the Government had to prove each of the elements of the crime charged beyond a reasonable doubt. Since the indictment charged that the defendant deprived the named persons of property without due process of law, it became necessary for the court to essay into the important, but difficult,7 matter of definition of that concept.",
"The defendant particularly objected to a portion of the instruction claimed to be mandatory but not containing all of the elements of the offense. In the objections, the defendant had specified the missing elements as being the standard of reasonable doubt and not setting out the burden of proof. As a matter of fact, the same paragraph in which the challenged portion appears referred to a finding beyond a reasonable doubt. In any event, the paragraph was just one continuing portion of a definitive instruction pertaining to the statute and the indictment brought under it. The complained-of missing elements were more than adequately covered in the instructions and no one paragraph is expected to include all phases of the litigation. 111 We do not read this portion of the district court's charge as does the defendant. When the jury was told that Senak, as Public Defender, was not entitled to any money from the clients he was appointed to represent, the fact finding body was told nothing more than that during the time he was serving as pauper attorney he was not entitled to other fees.",
"This, of course, did not preclude the proper termination of that relationship and a retained status thereafter if the clients or their relatives had funds for that purpose. This, on the other hand, is not to mean that a person who was entitled to representation under the rules of the court should have extracted from him money on the basis of threat that continuance as or service as pauper attorney would provide a less adequate defense than would be given on a retained basis. As the district court stated in one portion of the instructions: 'As a matter of law, the defendant, Nick Senak, was required, as a Public Defender, to provide his clients with nothing less than adequate legal protection.' 112 The court gave examples of deprivation of property without due process for exemplary purposes; however, in his objections to this portion of the charge, the defendant overlooks that the jury was told each of 'the persons involved in this case who were allegedly deprived of property had the continuing right to use and control his own property, including money, until such time as he voluntarily disposed of it or it was taken from him by means of due process.'",
"(Emphasis added.) Since much of the defense was based upon a claim that the payments were voluntarily made, the issue was squarely posed for the jury as to the circumstances under which the payments in fact were made. 113 We also read the instructions as not saying, as the defendant contends, that once Senak was appointed, the only way money could be secured from the clients or their relatives was through suit by the county attorney. That the jury did not so understand the instructions is indicated by their acquittal on Count III.8 In sum, we do not agree with the contention that the jury was told 'that once the defendant had been appointed as public defender for any person the defendant could under no circumstances take money from that client or friends or relatives of that client.'",
"114 The defendant also claims error in the portion of the instruction given to the effect that it was necessary to show or to prove that the defendant was thinking in constitutional terms. The defendant's reliance on Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) is misplaced. Here, as contrasted with Screws, the jury was instructed that it was not sufficient to find that the defendant had a generally bad purpose. It was made plain to the jury that specific intent must be established, that 'the Government must prove that the defendant knowingly did an act which the law forbids, . . . purposely intending to violate the law.'",
"During the course of instructing on specific intent, the court made reference to the lack of necessity of showing that the defendant was thinking in constitutional terms. But this phrase appears in Screws: 'The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.' 325 U.S. at 106, 65 S.Ct. at 1037. 115 Finally, with regard to instructions, Senak complains of the refusal to give three of the instructions tendered by him.",
"Each of the instructions concludes by the mandatory, 'you must find the defendant not guilty.' No. 3 would have led to that result if the persons named in each Count were not entitled to the services of pauper counsel. In his objections at trial, the defendant argued that this was particularly important as to the Drake count, but, as noted above, there was an acquittal on that count. In any event, this would have introduced an entirely collateral, irrelevant inquiry. The issue before the court pertained to the deprivation of property in connection with persons charged with state crimes during a time that Senak was the appointed counsel. To decide his guilt or innocence on the basis of whether the state court should not have appointed him or should not have continued the appointment would be an improper criterion. No. 4 would have required an acquittal based in part upon the asserted law that the appointment of a public defender created no rights for relatives or friends of the accused person.",
"However, we are here dealing with whether constitutional rights to property suffered deprivation and these rights were shared by the relatives and friends as well as those charged with the local crimes. No. 5 would have mandated an acquittal if the jury had found that Senak was authorized to appear as private counsel for those he had been appointed to represent and had been authorized to accept payments in such event. However, the indictment was not concerned with this conjectural possibility. What it was concerned with was the allegation that Senak conditioned his representation of persons for whom he had been appointed as pauper attorney on the payment of money to him.9 IX 116 Finally, in a two pronged attack the defendant contends that his motion for judgment of acquittal at the close of the evidence and a similar motion after verdict should have been sustained. The defendant candidly admits that the second portion of the attack is primarily based upon a claim that the indictment fails to state an offense against the United States and that this has been determined adversely to the defendant in the prior appeal.",
"United States v. Senak, supra. We agree with his analysis and respect the defendant for his candor. We, however, upon reexamination of the prior opinion decline to agree that it was erroneous. We find no merit in the contention that the failure to grant the motion for acquittal as to the Count III (Drake) was improper or that it somehow tainted the other verdicts. We have examined the evidence in the light most favorable to the Government as we are bound to do on this appeal and in that light are unable to agree that there was not sufficient evidence to support the verdicts of guilty on Counts II and IV, which counts, as we have previously held, did state an offense against the United States. 117 In his original appellate brief on the present appeal, the defendant, again with candor, argues that '(a)ll that the evidence in this record shows is that the defendant may have illegally charged a fee to perform a pre-existing duty.' That which the jury could have found proven goes farther than that.",
"It adequately supports the verdict of guilt of deprivation of property in violation of 18 U.S.C. § 242. 118 From our review of the entire record and consideration of the various errors urged by the defendant we are convinced he was given a fair trial and that the judgment of conviction does not require reversal. Accordingly, the judgment of the district court is 119 Affirmed. 120 FAIRCHILD, Chief Judge (concurring). 121 With respect to Part VII, cross-examination of Judge McKenna, the questions concerning bias against the Department of Justice perhaps bear the analysis that they were within bounds. I do not think, in any event, that this series of questions affected the outcome of this trial, and therefore would not reverse on their account.",
"122 I do view them, however, as the type of questionable conduct government counsel should avoid. The suggested analysis is that the fact that the witness has been prosecuted for a federal offense raises some probability that he will color his testimony in favor of another federal defendant. This seems to me gossamer covering for the prosecutor's real hope that the jury will view the witness less favorably because he was charged, though not convicted, with income tax evasion. * Associate Justice Tom C. Clark (Retired) of the Supreme Court of the United States is sitting by designation 1 Counsel had received permission from the court to get through some of the preliminary matters by leading questions 2 We deem the '1961' reference to be a typographical error in the transcript as the statement was dated 1971 and there is no indication whatsoever of any FBI activity a decade earlier in respect to the investigation of Senak 3 The second edition of McCormick's Handbook (1972) prepared under the editorship of Professor Edward W. Cleary with various professorial contributing authors, has some change of verbiage on the subject but both texts adhere to favoring a more liberalized view on admissibility. The second edition text is as follows: 'The writing must have been prepared or recognized as correct at a time close to the event.",
"Some opinions use the older strict formulation that requires the writing to have been made or recognized as correct 'at or near the time' of the events recorded. This finds some support in psychological research suggesting that a rapid rate of forgetting occurs within the first two or three days following the observation of the event. But the tendency seems to be towards acceptance of the formulation favored by Wigmore which would require only that the writing be made or recognized at a time when the events were fairly fresh in the mind of the witness. No precise formula can be applied to determine whether this test has been met; perhaps the best rule of thumb is that the requirement is not met if the time lapse is such, under the circumstances, as to suggest that the writing is not likely to be accurate.'",
"(Footnotes omitted.) (Sec. 301 at 714.) 4 We are not impressed by the Government's explanation that the witness was not interviewed until 1971 because the Government's investigation did not begin until that time. The question is whether when the witness was interviewed was her memory fairly fresh 5 While Becker testified that to his knowledge, Anna Zolkes was entirely destitute and had been for months, it is clear that she had never made any request for pauper counsel and that the defendant was never formally appointed as pauper counsel in her case 6 A typical question was: 'Have you any knowledge as to allegations by Honore Gilarski as to this defendant?' 7 'But there is no table of weights and measures for ascertaining what constitutes due process.' Mr. Justice Frankfurter in Burns v. Wilson, 346 U.S. 137, 149, 73 S.Ct.",
"1045, 1052, 97 L.Ed. 1508 (1953) 8 In Count III, Senak was charged with depriving Ernest Drake of $180 to defend Drake's nephew. On cross-examination, it was developed that the money came from the sale of a motor bike which belonged to the nephew. The jury could have concluded that Ernest Drake was not deprived of any of his own property and, of course, the money was not paid by virtue of a suit for recoupment by the county attorney 9 The issue was succinctly put by defense counsel in his final summation: '(i)f you are convinced beyond a reasonable doubt that this man threatened these people with inadequate representation, yes, you should find him guilty.'"
]
| https://www.courtlistener.com/api/rest/v3/opinions/331599/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DixoN, C. J. The counsel for the plaintiff are fully sustained by authority and correct in the position, that a false or mistaken description of the land, in proceedings to enforce the collection of taxes, avoids the sale, certificate or deed. The reasons are obvious. The officers are engaged in the exercise of mere, naked statutory powers, which must be strictly pursued, and the execution of which can only be shown by the acts of the officers themselves, evidenced in the manner prescribed by the statute. The certificate is the sole evidence of the land sold, and the deed, of that conveyed; and hence parol evidence cannot be received to aid or correct a description which is false or mistaken. For the same reason, also, no part of the description can be rejected as sur-plusage, nor words omitted be supplied, as in similar transactions between private individuals. The officers can be presumed to have no intention different from that expressed by their acts. To receive evidence that they intended another description in place of the one given,- or that they sold or conveyed lands lying in one place for those which lie in another, or which have no existence at all, would be to show that they intended to do that which the law under which they proposed to act did not permit, and which was therefore illegal. Another reason why the description in the list, certificate - or deed must be strictly adhered to for the purpose of testing the legal validity of the proceedings, is, that otherwise the owner of the lands would lose all benefit of the notices required by law to be given in such cases. *170It would be impossible for him to know, either from the published lists or the assessment roll, that his land had been assessed or sold, or was to be sold or conveyed; and hence he cannot be considered delinquent in not having paid the taxes, so that his title to the land should be lost or forfeited. The proceedings are void as to the owner; and being so as to him, they are also void as between the county and the purchaser at the tax sale, his assignee, and the grantee by tax deed. Eor these reasons we are of opinion that the word “ second ” in the description “ Arndt’s addition,” • cannot be supplied so as to make the description applicable to “ Arndt’s, second addition,” in which it is said the lots were in fact situated. We are restricted to the description contained in the certificates and deeds; and as there are no such lots and blocks in Arndt’s addition, the sales and subsequent proceedings must fail.' But though the proceedings are void at law, for the reasons above stated, it does not follow that the present plaintiff would, under all circumstances, be entitled to recover back from the county the moneys paid by him for the certificates. The action is in the nature of an action for money had and received, which lies only to recover back such sums as may be equitably due to the person bringing it. It appears from the stipulation, that at the time the plaintiff purchased the certificates from the county, he was the owner of some of the lots of a corresponding description in Arndt’s second addition; and that subsequently, and before the presentation of his account to the board of supervisors, he acquired the title of several others, so that of the thirty-six corresponding lots in “ Arndt’s second addition,” he now owns all but three. But the stipulation does not show that those thirty-three corresponding lots now owned by the plaintiff were not assessed, or paid no taxes, in the *171years 1860 and 1861, for which, these certificates were issued. The facts stipulated make it very probable that such was the cáse, but they do not justify an inference to that effect. If it had been so stipulated, or otherwise shown that the thirty-three corresponding lots in “Arndt’s second addition,” of which the plaintiff is now the owner, paid no taxes for those years, and were not assessed except by the defective description of “ Arndt’s addition,” and that the assessments were just and equitable, and the same as they would have been but for the mistake of description, or in other words, if it had appeared that the omission of the word “ second ” was a mere clerical error, that plat being intended, then we think the plaintiff would not have been entitled to recover back from the county the money paid for tax certificates on those lots. Such facts would constitute a good equitable defense to the action. Taxes are debts due to the government, and, when charged on lands, the lands constitute a fund out of which they are to be paid; so that whoever afterwards acquires title and possession of such fund, does so, so far subject to the burdens thus imposed, as that he cannot recover back money which he has once paid into the public treasury for the same taxes. This principle of equity, which looks only to the justice of transactions without regard to merely legal defects or errors not affecting their merits, seems very clear. A mere mistake in the description does not affect the equitable right of the county to retain the money in its possession. It is the same as if no such mistake had intervened. If, therefore, these facts had appeared as we have supposed they might exist, it would have become our duty to have affirmed the judgment as to the lots owned by the plaintiff, notwithstanding the error of the circuit judge in supplying the word “ second ” in the description, and holding the sales good on that ground. But as it is, the judgment must he wholly *172reversed; and in reversing it, we think, contrary to the usual practice in cases tried before the court without a jury (see Garbutt v. Bank of Prairie du Chien, post), that a new trial should be awarded. Cases where it is probable that thé ends of justice will be subserved by a new trial, should be an exception to the rule. The county should have an opportunity of showing, if it can, that no taxes were paid upon the lots owned by the plaintiff in “ Arndt’s second addition ” for the years in question, and that they were not assessed otherwise than by the erroneous descriptions contained in the certificates, and that such descriptions were intended for them. But it is furthermore contended, for the plaintiff, that the lien of the public for the taxes was lost after the lapse of five years from the time they ought to have been regularly assessed, under the operation of the proviso to sec. 3, chap. 138, Laws of 1861. We do not so understand the effect of that proviso. It is, that the particular remedy provided by that section shall not be resorted to after the lapse of five years; but not that all lien or right on the part of the public to insist upon payment or to enforce collection shall be gone. Recourse may be had to other means of re-assessment and collection, if the same are provided by law; and, if not provided, it is undoubtedly competent for the legisla^-ture to enact them. This principle has frequently received the sanction of this court. If, after the lapse of five years, the party whose duty it was to pay should pay the taxes notwithstanding the ii’regularity, the remedy is in the hands of the courts, upon principles which are well established, to prevent a judgment to recover back the money. By the Court. — Judgment reversed, and a new trial awarded. | 07-20-2022 | [
"DixoN, C. J. The counsel for the plaintiff are fully sustained by authority and correct in the position, that a false or mistaken description of the land, in proceedings to enforce the collection of taxes, avoids the sale, certificate or deed. The reasons are obvious. The officers are engaged in the exercise of mere, naked statutory powers, which must be strictly pursued, and the execution of which can only be shown by the acts of the officers themselves, evidenced in the manner prescribed by the statute. The certificate is the sole evidence of the land sold, and the deed, of that conveyed; and hence parol evidence cannot be received to aid or correct a description which is false or mistaken. For the same reason, also, no part of the description can be rejected as sur-plusage, nor words omitted be supplied, as in similar transactions between private individuals. The officers can be presumed to have no intention different from that expressed by their acts.",
"To receive evidence that they intended another description in place of the one given,- or that they sold or conveyed lands lying in one place for those which lie in another, or which have no existence at all, would be to show that they intended to do that which the law under which they proposed to act did not permit, and which was therefore illegal. Another reason why the description in the list, certificate - or deed must be strictly adhered to for the purpose of testing the legal validity of the proceedings, is, that otherwise the owner of the lands would lose all benefit of the notices required by law to be given in such cases. *170It would be impossible for him to know, either from the published lists or the assessment roll, that his land had been assessed or sold, or was to be sold or conveyed; and hence he cannot be considered delinquent in not having paid the taxes, so that his title to the land should be lost or forfeited. The proceedings are void as to the owner; and being so as to him, they are also void as between the county and the purchaser at the tax sale, his assignee, and the grantee by tax deed.",
"Eor these reasons we are of opinion that the word “ second ” in the description “ Arndt’s addition,” • cannot be supplied so as to make the description applicable to “ Arndt’s, second addition,” in which it is said the lots were in fact situated. We are restricted to the description contained in the certificates and deeds; and as there are no such lots and blocks in Arndt’s addition, the sales and subsequent proceedings must fail.' But though the proceedings are void at law, for the reasons above stated, it does not follow that the present plaintiff would, under all circumstances, be entitled to recover back from the county the moneys paid by him for the certificates. The action is in the nature of an action for money had and received, which lies only to recover back such sums as may be equitably due to the person bringing it. It appears from the stipulation, that at the time the plaintiff purchased the certificates from the county, he was the owner of some of the lots of a corresponding description in Arndt’s second addition; and that subsequently, and before the presentation of his account to the board of supervisors, he acquired the title of several others, so that of the thirty-six corresponding lots in “ Arndt’s second addition,” he now owns all but three.",
"But the stipulation does not show that those thirty-three corresponding lots now owned by the plaintiff were not assessed, or paid no taxes, in the *171years 1860 and 1861, for which, these certificates were issued. The facts stipulated make it very probable that such was the cáse, but they do not justify an inference to that effect. If it had been so stipulated, or otherwise shown that the thirty-three corresponding lots in “Arndt’s second addition,” of which the plaintiff is now the owner, paid no taxes for those years, and were not assessed except by the defective description of “ Arndt’s addition,” and that the assessments were just and equitable, and the same as they would have been but for the mistake of description, or in other words, if it had appeared that the omission of the word “ second ” was a mere clerical error, that plat being intended, then we think the plaintiff would not have been entitled to recover back from the county the money paid for tax certificates on those lots.",
"Such facts would constitute a good equitable defense to the action. Taxes are debts due to the government, and, when charged on lands, the lands constitute a fund out of which they are to be paid; so that whoever afterwards acquires title and possession of such fund, does so, so far subject to the burdens thus imposed, as that he cannot recover back money which he has once paid into the public treasury for the same taxes. This principle of equity, which looks only to the justice of transactions without regard to merely legal defects or errors not affecting their merits, seems very clear. A mere mistake in the description does not affect the equitable right of the county to retain the money in its possession. It is the same as if no such mistake had intervened. If, therefore, these facts had appeared as we have supposed they might exist, it would have become our duty to have affirmed the judgment as to the lots owned by the plaintiff, notwithstanding the error of the circuit judge in supplying the word “ second ” in the description, and holding the sales good on that ground.",
"But as it is, the judgment must he wholly *172reversed; and in reversing it, we think, contrary to the usual practice in cases tried before the court without a jury (see Garbutt v. Bank of Prairie du Chien, post), that a new trial should be awarded. Cases where it is probable that thé ends of justice will be subserved by a new trial, should be an exception to the rule.",
"The county should have an opportunity of showing, if it can, that no taxes were paid upon the lots owned by the plaintiff in “ Arndt’s second addition ” for the years in question, and that they were not assessed otherwise than by the erroneous descriptions contained in the certificates, and that such descriptions were intended for them. But it is furthermore contended, for the plaintiff, that the lien of the public for the taxes was lost after the lapse of five years from the time they ought to have been regularly assessed, under the operation of the proviso to sec. 3, chap. 138, Laws of 1861. We do not so understand the effect of that proviso. It is, that the particular remedy provided by that section shall not be resorted to after the lapse of five years; but not that all lien or right on the part of the public to insist upon payment or to enforce collection shall be gone.",
"Recourse may be had to other means of re-assessment and collection, if the same are provided by law; and, if not provided, it is undoubtedly competent for the legisla^-ture to enact them. This principle has frequently received the sanction of this court. If, after the lapse of five years, the party whose duty it was to pay should pay the taxes notwithstanding the ii’regularity, the remedy is in the hands of the courts, upon principles which are well established, to prevent a judgment to recover back the money. By the Court. — Judgment reversed, and a new trial awarded."
]
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NUMBER 13-07-00372-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM A. THOMAS, Appellant,
v.
ALISON PIORKOWSKI, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez, and Benavides
Opinion by Justice Rodriguez
This case involves clarification of a final decree of divorce. By three issues,
appellant William A. Thomas challenges the trial court's clarification order alleging that the
trial court erred (1) by clarifying the decree and awarding his disability benefits as
disposable retirement pay, (2) in not considering retroactive application of his permanent
disability status to set aside the clarification order, and (3) in entering a clarifying order that
made a substantive change in the decree. We reverse and remand. I. Background Thomas and appellee Alison Piorkowski (1) were divorced on December 3, 2004. The
final decree of divorce provided for a division of the marital estate. The decree awarded
the following to Piorkowski: W-5. All right, title, and interest in and to the sum equal to fifty percent (50%)
of the disposable retired pay of WILLIAM A. THOMAS which accumulated,
accrued or to which WILLIAM A. THOMAS is otherwise entitled between May
25, 1996 and the day this decree is signed which is a result of WILLIAM A.
THOMAS's service in the United States Armed Forces, and that share
attributable to the interest awarded to ALISON THOMAS of disposable
retired pay, if, as and when received by WILLIAM A. THOMAS.
On May 5, 2006, Thomas was placed on the Temporary Disability Retirement List
(TDRL) by the United States Armed Forces (Navy) with a thirty percent disability rating.
See 10 U.S.C.A. § 1202 (1998) On June 1, 2006, Thomas began receiving benefits
computed under section 1401. See id. § 1401 (Supp. 2009). On September 27, 2006, Piorkowski filed a motion to clarify the decree of divorce
and to enforce the division of property. By her motion, Piorkowski sought to recover, as
disposable retired pay, her share of Thomas's TDRL benefits. Piorkowski alleged that
Thomas was receiving retirement pay and that he refused to deliver to Piorkowski her
proportionate share. Piorkowski asked that the trial court enter a clarifying order restating
the terms of the decree in a manner specific enough to allow enforcement by contempt.
In response, Thomas objected, alleging that the decree of divorce was specific,
unambiguous, and enforceable. He also contended that the TDRL benefits were based
on his disability and thus, were a form of disability pay and not retirement pay subject to
division by the trial court. In March 2007, the trial court held an evidentiary hearing on Piorkowski's motion.
Over Thomas's objections, the trial court granted the motion and entered a clarification
order which set out, in relevant part, the following: Clarification
The [c]ourt finds that certain terms of the prior order are not specific
enough to be enforced by contempt and should be clarified as ordered below
. . . . * * * * * IT IS ORDERED that the prior order is clarified as follows: 1. That portion of the Final Decree of Divorce awarding property
to wife and as contained in paragraph W-5 on page 40 is
amended as follows: Division of Military Benefits of William A. Thomas The [c]ourt finds, in accordance with the Uniformed Services Former
Spouses' Protection Act [USFSPA], 10 U.S.C. section 1408, as follows: 1. Alison T. Piorkowski is awarded as her sole and separate
property, the sum of $510.86 per month of the disposable retired pay of
William A. Thomas as long as William A. Thomas is placed on the
Temporary Disability Retirement List and receiving monthly retirement pay. 2. William A. Thomas is Ordered to deliver to Alison T. Piorkowski
the sum of $510.86 per month until such time as William A. Thomas receives
a final disability rating from the U.S. Navy.
* * * * * The award of disposable retired pay made to Alison T. Piorkowski in
this decree is made in compliance with the [USFSPA]. IT IS THEREFORE ORDERED AND DECREED that Alison T.
Piorkowski have judgment against and recover from William A. Thomas the
sum of $510.86 per month of the disposable retired pay of William A.
Thomas.
* * * * *
Findings * * * * * 5. Since the date of divorce, William A. Thomas has been placed
upon the Temporary Disability Retirement List by the U.S. Navy and is
currently receiving retirement pay in the amount of $1,246.00 per month
[s]ince July 1, 2006.
* * * * * Relief Granted IT IS ADJUDGED that Respondent, William A. Thomas, is in
contempt for each separate violation enumerated above. The [c]ourt finds that Respondent has failed to pay to Petitioner
money that was awarded in the prior decree and that the amount of unpaid
payments to which Petitioner is now entitled is $4,597.74. Thomas filed a motion for new trial requesting that the clarifying order be set aside
because it (1) awarded Piorkowski property she was not entitled to receive, (2) created an
obligation that was not part of the relief requested and effectively reallocated property not
consistent with the final decree of divorce, and (3) did not account for his level of disability
or current disability rating. At the evidentiary hearing on his motion, having recently been
declared eighty percent disabled by the Veterans Administration (VA), Thomas also asked
that the order awarding retirement benefits be set aside by retroactive application of his
disability status to the inception of his TDRL. Over objections, the trial court denied
Thomas's motion for a new trial. This appeal ensued. II. Standard of Review We review the trial court's ruling on a post-divorce motion for clarification of a
divorce decree or for enforcement under an abuse of discretion standard. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Baker v. Donovan, 199 S.W.3d 577, 579 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (op. on reh'g); In re Marriage
of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied). The test
for abuse of discretion is a question of whether the court acted without reference to any
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985). III. Discussion By his first issue, Thomas contends that the trial court abused its discretion by
entering a clarifying order awarding Piorkowski $510.86 as disposable retired pay. Thomas
asserts that the money awarded to Piorkowski was not disposable retired pay but was
disability pay and was awarded in direct violation of section 1408(a)(4)(C) of the USFSPA.
See 10 U.S.C.A. § 1408(a)(4)(C) (1998) (providing for payment of retired pay in
compliance with court orders). We agree. The decree of divorce awarded Piorkowski "fifty percent (50%) of the disposable
retired pay . . . if, as and when received by [Thomas]." In clarifying the decree, the trial
court found that Thomas had been placed on the TDRL and had been receiving retirement
pay in the amount of $1,246.00 per month since July 1, 2006. The court awarded
Piorkowski $510.86 per month of Thomas's disposable retired pay as long as Thomas was
on the TDRL and was receiving monthly retirement pay. Under the USFSPA, military retirement benefits are generally apportionable by a
divorce. See id. § 1408(c)(1) (1998); Mansell v. Mansell, 490 U.S. 581, 589 (1989);
Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 (Tex. App.-Waco 2002, no pet.); Wallace v.
Fuller, 832 S.W.2d 714, 719 (Tex. App.-Austin 1992, no writ); Gallegos v. Gallegos, 788 S.W.2d 158, 169 (Tex. App.-San Antonio 1990, no writ). However, apportionable benefits
are limited to "disposable retired pay," which is defined to exclude, among other things,
disability pay including retirement benefits that may be waived in order to collect VA
disability benefits and those computed using the percentage of disability on the date a
person in the military is placed on TDRL. Limbaugh, 71 S.W.3d at 16-17, 17 n.13 (citing
10 U.S.C.A. § 1408(a)(4)(A-D) (1998)); see Mansell, 490 US at 589 (determining that state
courts have the authority to treat disposable retired pay, not total retired pay, as community
property). Specifically, "disposable retired pay" does not include, amounts which . . . in the case of a member entitled to retired pay under
chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount
of retired pay of the member under that chapter computed using the
percentage of the member's disability on the date when the member was
retired (or the date on which the member's name was placed on the
temporary disability retired list); . . . . 10 U.S.C.A. § 1408(a)(4)(C) (emphasis added). Thomas was entitled to retired pay only
after being placed on the TDRL. His gross pay, in the amount of $1246.00, was computed
using the percentage of disability (thirty percent) on the date he was placed on the TDRL.
See id. § 1401. The statute expressly excludes from "disposable retired pay" temporary
disability retirement benefits--the $1246.00 in this case. See id. § 1408(a)(4)(C). We
conclude, therefore, that Thomas's gross pay, the money at issue in this case, was not
disposable retired pay and therefore, was not divisible as marital property. Moreover, placement on TDRL is governed by section 1202, which provides as
follows: Upon a determination by the Secretary concerned that a member described
in section 1201(c) of this title would be qualified for retirement under section
1201 [permanent disability] of this title but for the fact that his disability is not
determined to be of a permanent nature and stable, the Secretary shall . . .
place the member's name on the temporary disability retired list, with retired
pay computed under section 1401 of this title. Id. § 1202. The statute requires a member to undergo a physical examination at least
once every eighteen months in order to determine "whether there has been a change in
the disability for which he was temporarily retired." Id. § 1210(a) (1998). A member may
remain on the TDRL for up to five years. Id. § 1210(b) (1998). After five years on the
TDRL, the member must be either returned to active duty, if fit for service; permanently
retired for longevity, if at least twenty years of service has been attained; or permanently
retired for disability, if he is at least thirty percent disabled and the disability is permanent
and stable. Id. § 1210(b)-(f) (1998). At the time Thomas was placed on TDRL, he had served in the military for ten
years, five months, and eight days. He did not have twenty years service. He was not
eligible for a regular retirement based on longevity. See id. § 3914 (1998) (requiring an
enlisted member of the armed services to have at least twenty years of service to be
retired); see also id. § 6323 (1998 & Supp. 2009) (providing that a naval officer was entitled
to voluntarily retire, with the consent of the United States President, after 20 years of
service). Thomas was not eligible for any retired pay other than that based on his
disability. Because this pay was necessarily based on Thomas's disability, it was not
divisible as marital property. See id. § 1408(a)(4)(C); In re Marriage of Williamson, 205 P.3d 538, 541-43 (Colo. Ct. App. 2009) (concluding that benefits of a husband who was
completely ineligible for any military retirement benefits but for his disability, were based
on his disability and therefore not divisible as marital property); see In re Marriage of
Wherrell, 58 P.3d 734, 741 (Kan. 2002) (recognizing that members eligible for retirement
would potentially receive both disability and retirement benefits with only the disability
portion of the benefit to be excluded form "disposable retired pay"; however, if a member
is not entitled to retired pay, it would not be appropriate to allow only a portion of his
severance to be excluded from division under USFSPA); Bullis v. Bullis, 467 S.E.2d 830,
836 (Va. Ct. App. 1996) (en banc) (concluding that the USFSPA "exempts only that portion
of Chapter 61 benefits which corresponds to the retiree's disability percentage rating at the
time of retirement. If, for example, a service member retires with 60% disability under
Chapter 61, then 60% of the member's retirement benefits are excluded from the definition
of 'disposable retired pay'. The remaining 40% of the member's benefits may be judicially
apportioned under state community property laws."). Piorkowski asserts that the plain reading of the statute, specifically certain phrases
found in sections 1202, 1210, and 1211, indicates that the status of a member on the
TDRL is akin to inactive duty or retirement. See 10 U.S.C.A. § 1202 (including "would be
qualified for retirement" and "with retired pay" in section language); id. § 1210 (including
"temporarily retired" in language); id. § 1211 (a-b) (1998) (referring to "active duty");
Transco Prods. Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994)
("When statutory interpretation is at issue, the plain and unambiguous meaning of a statute
prevails in the absence of clearly expressed legislative intent to the contrary."). However,
sections 1202, 1210, and 1211 should be read in conjunction and harmony with other
sections of the statute which provide for the computation of pay when a member is placed
on the TDRL and with supporting case law. See Hooks v. Tex. Dep't of Water Res., 611 S.W.2d 417, 419 (Tex. 1981). Doing so, we cannot conclude that because Thomas's
status may be akin to retirement because such words are used in certain sections of the
statute, his pay must be retirement pay and not disability pay. We are not persuaded by
that reasoning, especially in light of our discussion above. Piorkowski relies on Dambrava v. Office of Personnel Mgmt., 466 F.3d 1061, 1063-64 (Fed. Cir. 2006) (determining that TDRL placement is akin to retirement) and Bradley
v. United States, 161 F.3d 777, 782 (4th Cir. 1998) (deciding that TDRL "status is
comparable to permanent retirement status"), for the proposition that payments received
by a military member while on the TDRL should be considered retirement pay. In
Dambrava, the court determined that Gintaras Dambrava, a civil servant, was not qualified
for immediate retirement because his time on the TDRL was not active service and could
not be included as service credit in the calculation. 466 F.3d at 1065. The Bradley court,
in a summary judgment proceeding, concluded that Sharon Bradley's status was
comparable to permanent retirement when her medical treatment at issue in the case
occurred while she was on the TDRL. 161 F.3d at 782. Thus, the action was not barred
by the immunity doctrine. Id. (citing McGowan v. Scoggins, 89 F.2d 128, 137-39 (9th Cir.
1989) (holding that the Feres doctrine did not bar a retired Army officer from suing for
injuries suffered in an attack by military personnel while he was on the base to obtain a
parking sticker)). The issue in Dambrava was whether Dambrava's time on the TDRL was active
service. Dambrava, 466 F.3d at 1062. The Dambrava court determined that it was not.
Id. at 1065. The issue in Bradley was whether Bradley's status was comparable to
permanent retirement when she received the complained-of medical treatment. Bradley,
161 F.3d at 782. In this case, we are addressing a very different issue--an issue that is
not dependent on the status of Thomas, but on how his pay is calculated and how its
calculation is dependent upon his disability. We cannot read Dambrava and Bradley in
isolation as Piorkowski urges. Piorkowski also relies on Baker v. Donovan and In the Marriage of Reinauer, to
support her contention that the trial court awarded disposable retirement pay, not disability
benefits, and, thus, did not abuse its discretion. Baker, 199 S.W.3d at 578; Reinauer, 946 S.W.2d 853, 855-56 (Tex. App.-Amarillo 1997, no pet.). These cases, however, are
distinguishable from the present case. In Baker, the divorce decree awarded Karen Donovan "50% of Michael Allen
Baker's present accrued benefit as of the date of the decree, in the U.S. Military Retirement
System." 199 S.W.3d at 578. In 2002, Baker began receiving retirement benefits of
approximately $5,000 per month including $1,069 designated as VA disability pay. Id.
When Baker failed to pay Donovan's portion of his retirement, Donovan filed a petition to
enforce and clarify the decree. Id. The trial court awarded Donovan a portion of Baker's
military retirement benefits without excluding his VA disability pay. Id. at 578-79. The
Baker court concluded that the trial court did not err in doing so because the proceeding
was an enforcement and clarification proceeding, not a motion to modify proceeding. Id.
at 580. And a motion to modify "would have been required for the trial court to alter or
change the substantive division of property and, thus, [Baker's] request [was] beyond the
power of the trial court." Id. (citing Tex. Fam. Code Ann. § 9.007(b)). The court concluded
that Baker was attempting to collaterally attack the decree in error because there had been
no appeal from the divorce court's division of the property. Id. In the present case, the divorce decree awarded interest in "fifty percent (50%) of
the disposable retired pay." In his first issue, Thomas is not challenging the substance of
the division. He is not arguing that Piorkowski is not entitled to a portion of his disposable
retired pay. Rather, Thomas is complaining of the trial court's actions in determining that
his pay is disposable retired pay. Likewise, Reinauer is distinguishable. The Reinauer court, under the law in effect
at that time, concluded that Reinauer's compensation under section 1201 (permanent
disability) "had been held to be an earned property right accrued by reason of years of
service rather than gift or gratuity." Id. at 858. The court continued with the following reasoning: That it may be labeled "disability retirement pay," or the like, mattered not
given its substantive nature. Nor was the fact that it arose due to his forced
retirement of consequence. Thus, having satisfied the requisite indicia, the
monies paid Reinauer by the Navy were, and are, "retirement pay" within the
scope of the 1979 decree.
Id. The Reinauer divorce decree became final in 1979, years before the present
USFSPA went into effect, and thus, the USFSPA was not controlling. In the Marriage of
Reinauer, 946 S.W.2d 853, 857 (Tex. App.-Amarillo 1997, no pet.); see Department of
Defense Authorization Act, 1983, Pub. L. No. 97-252 § 1001, 96 Stat. 730-35 (1982). In
1979, Texas courts considered military retirement benefits and chapter 61 military benefits
as a community asset subject to division upon divorce. Reinauer, 946 S.W.2d 853, 857 (citing Busby v. Busby, 457 S.W.2d 551, 551-52, 554 (Tex. 1970), Kirkham v. Kirkham, 335 S.W.2d 393, 394 (Tex. Civ. App. 1960, no writ)). Under the USFSPA today, we would not
reach the same result. Therefore, we conclude that the trial court erred in determining that Thomas's pay
was disposable retired pay, in awarding a portion thereof to Piorkowski in the amount of
$510.86 per month, in adjudging Thomas in contempt, and in finding that Piorkowski was
entitled to $4,597.74, the amount of unpaid payments. See Downer, 701 S.W.2d at 242.
The trial court abused its discretion when it entered a clarifying order reflecting this relief.
See Worford, 801 S.W.2d at 109. Accordingly, we sustain Thomas's first issue. Having sustained this first issue, we need not reach the remaining issues as they
are not dispositive of this appeal. See Tex. R. App. P. 47.1. IV. Conclusion We reverse and remand for entry of a clarification order consistent with this opinion. NELDA V. RODRIGUEZ Justice
Opinion delivered and filed this 11th day of June, 2009.
1. Alison Thomas's name was changed to Alison Thomas Piorkowski by the final divorce decree. | 09-11-2015 | [
"NUMBER 13-07-00372-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG WILLIAM A. THOMAS, Appellant, v. ALISON PIORKOWSKI, Appellee. On appeal from the 319th District Court of Nueces County, Texas. O P I N I O N Before Justices Yañez, Rodriguez, and Benavides Opinion by Justice Rodriguez This case involves clarification of a final decree of divorce. By three issues, appellant William A. Thomas challenges the trial court's clarification order alleging that the trial court erred (1) by clarifying the decree and awarding his disability benefits as disposable retirement pay, (2) in not considering retroactive application of his permanent disability status to set aside the clarification order, and (3) in entering a clarifying order that made a substantive change in the decree. We reverse and remand. I. Background Thomas and appellee Alison Piorkowski (1) were divorced on December 3, 2004.",
"The final decree of divorce provided for a division of the marital estate. The decree awarded the following to Piorkowski: W-5. All right, title, and interest in and to the sum equal to fifty percent (50%) of the disposable retired pay of WILLIAM A. THOMAS which accumulated, accrued or to which WILLIAM A. THOMAS is otherwise entitled between May 25, 1996 and the day this decree is signed which is a result of WILLIAM A. THOMAS's service in the United States Armed Forces, and that share attributable to the interest awarded to ALISON THOMAS of disposable retired pay, if, as and when received by WILLIAM A. THOMAS. On May 5, 2006, Thomas was placed on the Temporary Disability Retirement List (TDRL) by the United States Armed Forces (Navy) with a thirty percent disability rating. See 10 U.S.C.A. § 1202 (1998) On June 1, 2006, Thomas began receiving benefits computed under section 1401.",
"See id. § 1401 (Supp. 2009). On September 27, 2006, Piorkowski filed a motion to clarify the decree of divorce and to enforce the division of property. By her motion, Piorkowski sought to recover, as disposable retired pay, her share of Thomas's TDRL benefits. Piorkowski alleged that Thomas was receiving retirement pay and that he refused to deliver to Piorkowski her proportionate share. Piorkowski asked that the trial court enter a clarifying order restating the terms of the decree in a manner specific enough to allow enforcement by contempt. In response, Thomas objected, alleging that the decree of divorce was specific, unambiguous, and enforceable. He also contended that the TDRL benefits were based on his disability and thus, were a form of disability pay and not retirement pay subject to division by the trial court. In March 2007, the trial court held an evidentiary hearing on Piorkowski's motion.",
"Over Thomas's objections, the trial court granted the motion and entered a clarification order which set out, in relevant part, the following: Clarification The [c]ourt finds that certain terms of the prior order are not specific enough to be enforced by contempt and should be clarified as ordered below . . . . * * * * * IT IS ORDERED that the prior order is clarified as follows: 1. That portion of the Final Decree of Divorce awarding property to wife and as contained in paragraph W-5 on page 40 is amended as follows: Division of Military Benefits of William A. Thomas The [c]ourt finds, in accordance with the Uniformed Services Former Spouses' Protection Act [USFSPA], 10 U.S.C.",
"section 1408, as follows: 1. Alison T. Piorkowski is awarded as her sole and separate property, the sum of $510.86 per month of the disposable retired pay of William A. Thomas as long as William A. Thomas is placed on the Temporary Disability Retirement List and receiving monthly retirement pay. 2. William A. Thomas is Ordered to deliver to Alison T. Piorkowski the sum of $510.86 per month until such time as William A. Thomas receives a final disability rating from the U.S. Navy. * * * * * The award of disposable retired pay made to Alison T. Piorkowski in this decree is made in compliance with the [USFSPA].",
"IT IS THEREFORE ORDERED AND DECREED that Alison T. Piorkowski have judgment against and recover from William A. Thomas the sum of $510.86 per month of the disposable retired pay of William A. Thomas. * * * * * Findings * * * * * 5. Since the date of divorce, William A. Thomas has been placed upon the Temporary Disability Retirement List by the U.S. Navy and is currently receiving retirement pay in the amount of $1,246.00 per month [s]ince July 1, 2006. * * * * * Relief Granted IT IS ADJUDGED that Respondent, William A. Thomas, is in contempt for each separate violation enumerated above. The [c]ourt finds that Respondent has failed to pay to Petitioner money that was awarded in the prior decree and that the amount of unpaid payments to which Petitioner is now entitled is $4,597.74. Thomas filed a motion for new trial requesting that the clarifying order be set aside because it (1) awarded Piorkowski property she was not entitled to receive, (2) created an obligation that was not part of the relief requested and effectively reallocated property not consistent with the final decree of divorce, and (3) did not account for his level of disability or current disability rating.",
"At the evidentiary hearing on his motion, having recently been declared eighty percent disabled by the Veterans Administration (VA), Thomas also asked that the order awarding retirement benefits be set aside by retroactive application of his disability status to the inception of his TDRL. Over objections, the trial court denied Thomas's motion for a new trial. This appeal ensued. II. Standard of Review We review the trial court's ruling on a post-divorce motion for clarification of a divorce decree or for enforcement under an abuse of discretion standard.",
"Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Baker v. Donovan, 199 S.W.3d 577, 579 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (op. on reh'g); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied). The test for abuse of discretion is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.",
"1985). III. Discussion By his first issue, Thomas contends that the trial court abused its discretion by entering a clarifying order awarding Piorkowski $510.86 as disposable retired pay. Thomas asserts that the money awarded to Piorkowski was not disposable retired pay but was disability pay and was awarded in direct violation of section 1408(a)(4)(C) of the USFSPA. See 10 U.S.C.A. § 1408(a)(4)(C) (1998) (providing for payment of retired pay in compliance with court orders). We agree. The decree of divorce awarded Piorkowski \"fifty percent (50%) of the disposable retired pay . .",
". if, as and when received by [Thomas].\" In clarifying the decree, the trial court found that Thomas had been placed on the TDRL and had been receiving retirement pay in the amount of $1,246.00 per month since July 1, 2006. The court awarded Piorkowski $510.86 per month of Thomas's disposable retired pay as long as Thomas was on the TDRL and was receiving monthly retirement pay. Under the USFSPA, military retirement benefits are generally apportionable by a divorce. See id. § 1408(c)(1) (1998); Mansell v. Mansell, 490 U.S. 581, 589 (1989); Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 (Tex. App.-Waco 2002, no pet. ); Wallace v. Fuller, 832 S.W.2d 714, 719 (Tex. App.-Austin 1992, no writ); Gallegos v. Gallegos, 788 S.W.2d 158, 169 (Tex.",
"App.-San Antonio 1990, no writ). However, apportionable benefits are limited to \"disposable retired pay,\" which is defined to exclude, among other things, disability pay including retirement benefits that may be waived in order to collect VA disability benefits and those computed using the percentage of disability on the date a person in the military is placed on TDRL. Limbaugh, 71 S.W.3d at 16-17, 17 n.13 (citing 10 U.S.C.A. § 1408(a)(4)(A-D) (1998)); see Mansell, 490 US at 589 (determining that state courts have the authority to treat disposable retired pay, not total retired pay, as community property). Specifically, \"disposable retired pay\" does not include, amounts which . .",
". in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq. ], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); . . . . 10 U.S.C.A. § 1408(a)(4)(C) (emphasis added). Thomas was entitled to retired pay only after being placed on the TDRL. His gross pay, in the amount of $1246.00, was computed using the percentage of disability (thirty percent) on the date he was placed on the TDRL. See id. § 1401. The statute expressly excludes from \"disposable retired pay\" temporary disability retirement benefits--the $1246.00 in this case. See id. § 1408(a)(4)(C). We conclude, therefore, that Thomas's gross pay, the money at issue in this case, was not disposable retired pay and therefore, was not divisible as marital property.",
"Moreover, placement on TDRL is governed by section 1202, which provides as follows: Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 [permanent disability] of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall . . . place the member's name on the temporary disability retired list, with retired pay computed under section 1401 of this title.",
"Id. § 1202. The statute requires a member to undergo a physical examination at least once every eighteen months in order to determine \"whether there has been a change in the disability for which he was temporarily retired.\" Id. § 1210(a) (1998). A member may remain on the TDRL for up to five years. Id. § 1210(b) (1998). After five years on the TDRL, the member must be either returned to active duty, if fit for service; permanently retired for longevity, if at least twenty years of service has been attained; or permanently retired for disability, if he is at least thirty percent disabled and the disability is permanent and stable. Id. § 1210(b)-(f) (1998).",
"At the time Thomas was placed on TDRL, he had served in the military for ten years, five months, and eight days. He did not have twenty years service. He was not eligible for a regular retirement based on longevity. See id. § 3914 (1998) (requiring an enlisted member of the armed services to have at least twenty years of service to be retired); see also id. § 6323 (1998 & Supp. 2009) (providing that a naval officer was entitled to voluntarily retire, with the consent of the United States President, after 20 years of service). Thomas was not eligible for any retired pay other than that based on his disability. Because this pay was necessarily based on Thomas's disability, it was not divisible as marital property. See id. § 1408(a)(4)(C); In re Marriage of Williamson, 205 P.3d 538, 541-43 (Colo. Ct. App.",
"2009) (concluding that benefits of a husband who was completely ineligible for any military retirement benefits but for his disability, were based on his disability and therefore not divisible as marital property); see In re Marriage of Wherrell, 58 P.3d 734, 741 (Kan. 2002) (recognizing that members eligible for retirement would potentially receive both disability and retirement benefits with only the disability portion of the benefit to be excluded form \"disposable retired pay\"; however, if a member is not entitled to retired pay, it would not be appropriate to allow only a portion of his severance to be excluded from division under USFSPA); Bullis v. Bullis, 467 S.E.2d 830, 836 (Va. Ct. App.",
"1996) (en banc) (concluding that the USFSPA \"exempts only that portion of Chapter 61 benefits which corresponds to the retiree's disability percentage rating at the time of retirement. If, for example, a service member retires with 60% disability under Chapter 61, then 60% of the member's retirement benefits are excluded from the definition of 'disposable retired pay'. The remaining 40% of the member's benefits may be judicially apportioned under state community property laws.\"). Piorkowski asserts that the plain reading of the statute, specifically certain phrases found in sections 1202, 1210, and 1211, indicates that the status of a member on the TDRL is akin to inactive duty or retirement. See 10 U.S.C.A.",
"§ 1202 (including \"would be qualified for retirement\" and \"with retired pay\" in section language); id. § 1210 (including \"temporarily retired\" in language); id. § 1211 (a-b) (1998) (referring to \"active duty\"); Transco Prods. Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994) (\"When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative intent to the contrary.\"). However, sections 1202, 1210, and 1211 should be read in conjunction and harmony with other sections of the statute which provide for the computation of pay when a member is placed on the TDRL and with supporting case law.",
"See Hooks v. Tex. Dep't of Water Res., 611 S.W.2d 417, 419 (Tex. 1981). Doing so, we cannot conclude that because Thomas's status may be akin to retirement because such words are used in certain sections of the statute, his pay must be retirement pay and not disability pay. We are not persuaded by that reasoning, especially in light of our discussion above. Piorkowski relies on Dambrava v. Office of Personnel Mgmt., 466 F.3d 1061, 1063-64 (Fed. Cir. 2006) (determining that TDRL placement is akin to retirement) and Bradley v. United States, 161 F.3d 777, 782 (4th Cir. 1998) (deciding that TDRL \"status is comparable to permanent retirement status\"), for the proposition that payments received by a military member while on the TDRL should be considered retirement pay. In Dambrava, the court determined that Gintaras Dambrava, a civil servant, was not qualified for immediate retirement because his time on the TDRL was not active service and could not be included as service credit in the calculation. 466 F.3d at 1065.",
"The Bradley court, in a summary judgment proceeding, concluded that Sharon Bradley's status was comparable to permanent retirement when her medical treatment at issue in the case occurred while she was on the TDRL. 161 F.3d at 782. Thus, the action was not barred by the immunity doctrine. Id. (citing McGowan v. Scoggins, 89 F.2d 128, 137-39 (9th Cir. 1989) (holding that the Feres doctrine did not bar a retired Army officer from suing for injuries suffered in an attack by military personnel while he was on the base to obtain a parking sticker)).",
"The issue in Dambrava was whether Dambrava's time on the TDRL was active service. Dambrava, 466 F.3d at 1062. The Dambrava court determined that it was not. Id. at 1065. The issue in Bradley was whether Bradley's status was comparable to permanent retirement when she received the complained-of medical treatment. Bradley, 161 F.3d at 782. In this case, we are addressing a very different issue--an issue that is not dependent on the status of Thomas, but on how his pay is calculated and how its calculation is dependent upon his disability. We cannot read Dambrava and Bradley in isolation as Piorkowski urges. Piorkowski also relies on Baker v. Donovan and In the Marriage of Reinauer, to support her contention that the trial court awarded disposable retirement pay, not disability benefits, and, thus, did not abuse its discretion.",
"Baker, 199 S.W.3d at 578; Reinauer, 946 S.W.2d 853, 855-56 (Tex. App.-Amarillo 1997, no pet.). These cases, however, are distinguishable from the present case. In Baker, the divorce decree awarded Karen Donovan \"50% of Michael Allen Baker's present accrued benefit as of the date of the decree, in the U.S. Military Retirement System.\" 199 S.W.3d at 578. In 2002, Baker began receiving retirement benefits of approximately $5,000 per month including $1,069 designated as VA disability pay. Id. When Baker failed to pay Donovan's portion of his retirement, Donovan filed a petition to enforce and clarify the decree. Id. The trial court awarded Donovan a portion of Baker's military retirement benefits without excluding his VA disability pay.",
"Id. at 578-79. The Baker court concluded that the trial court did not err in doing so because the proceeding was an enforcement and clarification proceeding, not a motion to modify proceeding. Id. at 580. And a motion to modify \"would have been required for the trial court to alter or change the substantive division of property and, thus, [Baker's] request [was] beyond the power of the trial court.\" Id. (citing Tex. Fam. Code Ann. § 9.007(b)). The court concluded that Baker was attempting to collaterally attack the decree in error because there had been no appeal from the divorce court's division of the property.",
"Id. In the present case, the divorce decree awarded interest in \"fifty percent (50%) of the disposable retired pay.\" In his first issue, Thomas is not challenging the substance of the division. He is not arguing that Piorkowski is not entitled to a portion of his disposable retired pay. Rather, Thomas is complaining of the trial court's actions in determining that his pay is disposable retired pay. Likewise, Reinauer is distinguishable.",
"The Reinauer court, under the law in effect at that time, concluded that Reinauer's compensation under section 1201 (permanent disability) \"had been held to be an earned property right accrued by reason of years of service rather than gift or gratuity.\" Id. at 858. The court continued with the following reasoning: That it may be labeled \"disability retirement pay,\" or the like, mattered not given its substantive nature. Nor was the fact that it arose due to his forced retirement of consequence. Thus, having satisfied the requisite indicia, the monies paid Reinauer by the Navy were, and are, \"retirement pay\" within the scope of the 1979 decree. Id. The Reinauer divorce decree became final in 1979, years before the present USFSPA went into effect, and thus, the USFSPA was not controlling. In the Marriage of Reinauer, 946 S.W.2d 853, 857 (Tex.",
"App.-Amarillo 1997, no pet. ); see Department of Defense Authorization Act, 1983, Pub. L. No. 97-252 § 1001, 96 Stat. 730-35 (1982). In 1979, Texas courts considered military retirement benefits and chapter 61 military benefits as a community asset subject to division upon divorce. Reinauer, 946 S.W.2d 853, 857 (citing Busby v. Busby, 457 S.W.2d 551, 551-52, 554 (Tex. 1970), Kirkham v. Kirkham, 335 S.W.2d 393, 394 (Tex. Civ. App. 1960, no writ)). Under the USFSPA today, we would not reach the same result. Therefore, we conclude that the trial court erred in determining that Thomas's pay was disposable retired pay, in awarding a portion thereof to Piorkowski in the amount of $510.86 per month, in adjudging Thomas in contempt, and in finding that Piorkowski was entitled to $4,597.74, the amount of unpaid payments. See Downer, 701 S.W.2d at 242.",
"The trial court abused its discretion when it entered a clarifying order reflecting this relief. See Worford, 801 S.W.2d at 109. Accordingly, we sustain Thomas's first issue. Having sustained this first issue, we need not reach the remaining issues as they are not dispositive of this appeal. See Tex. R. App. P. 47.1. IV. Conclusion We reverse and remand for entry of a clarification order consistent with this opinion. NELDA V. RODRIGUEZ Justice Opinion delivered and filed this 11th day of June, 2009. 1. Alison Thomas's name was changed to Alison Thomas Piorkowski by the final divorce decree."
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment An amendment was filed on 05/20/2022. Claims 2, 19-28, 51, and 53 are currently amended. Claims 1-54 are currently pending, and claims 2, 19-28, 51, and 53 are being examined. Claim Objections Claim 2 is objected to because of the following informalities: Regarding claim 2, “each lens comprising” in line 2 should read -each standard contact lens-, “surface of a first lens” should read -surface of a first standard contact lens-, “concentrically with a second lens” should read -concentrically with a second standard contact lens-, and “added to the second lens are alternating layers of medicament and lenses” should read -added to the second standard contact lens are alternating layers of medicament formulation and standard contact lenses- Moreover, in claim 2, the limitation “each lens comprising an outer surface and an inner surface, and at least one layer of medicament formulation” is unclear and appears to suggest that each lens also comprises one layer of medicament formulation, which is not described in the specification, thus is it recommended to be replaced with -each lens comprising an outer surface and an inner surface, and wherein the ocular agent delivery device further includes at least one layer of a medicament formulation- Further regarding claim 2, “such that the agent delivery device comprises from 1-4 lenses and from 104 medicament formulations” should read -such that the agent delivery device comprises from 1-4 standard contact lenses and from 1-4 layers of medicament formulation” Regarding claim 53, the limitation “the agent-containing device” should read -the ocular agent delivery device-, and “the eye surface of a user” should read -an eye surface of a user- Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2, 19-28, 51, and 53 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 2, 19, and 53 have been amended to replace the language of “comprising of” with “consisting of” and posits that support for the amendments is found in the abstract and paragraphs 0020, 0073, and 0081 of the specification (see applicant’s remarks). However, no support is shown for an ocular agent delivery device consisting of the limitations recited in claims 2, 19, and 53, but rather the specification suggests that the embodiments of the invention comprise the limitations recited in claims 2, 19, and 53. Therefore, claims 2, 19, and 53 are considered to include new matter not previously disclosed within the specification. The remaining claims are rejected as being dependent on rejected independent claims. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2, 19-28, 51, and 53 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 2, 19, and 53 recite the limitation “standard contact lenses” and “standard manufactured contact lens” to further clarify the scope of the invention. However, the metes and bounds of a “standard contact lens” has not been disclosed within the specification, and the difference between a “standard contact lens” and a non-standard contact lens is unclear. For the purpose of examination, a “standard contact lens” will be interpreted as a contact lens that does not have additional structures built in. Claim 2 further recites the limitation “such that the agent delivery device comprises from 1-4 lenses and from 1-4 medicament formulations”. It is unclear how the agent delivery device can comprise of 1 lens when the ocular agent delivery device consists of “at least two layers of standard contact lenses”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 2 recites the broad recitation “at least 2 layers of standard contact lenses”, and the claim also recites “comprises from 1-4 lenses” which is the narrower statement of the range/limitation. . The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Further, as the claim further recites “added to the second lens are alternating layers of medicament and lenses”, the ocular agent delivery device would need at least one additional contact lens and at least one additional medicament formulations, such that the device needs at least 3 lenses and at least 2 medicament formulation. For the purpose of examination, the limitation will be interpreted as the agent delivery device comprising from 3-4 lenses and from 2-4 medicament formulations. The remaining claims have been rejected by virtue of being dependent on claim 19. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claims 2, 19-20, 25-28, 51, and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre (US 20150062528 A1). Regarding claim 2, as best understood, Doshi discloses an ocular agent delivery device (abstract) comprising of an assembly of at least two layers of standard contact lenses (fig. 8, contact lens and barrier layers 1 and 2, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1 and 2 can be considered to be a second contact lens and furthermore, the barrier layers would also serve as standard contact lens since both the contact lens layer and the barrier layers create a lens device with a clear optical zone (see fig. 8, clear optical zone at the center of the device) . Further, barrier layers 1 and 2 are considered as a “standard” contact lens because it does not have built in components), each lens comprising an outer surface and an inner surface (see annotated fig. 8 below, rear surface of contact lens is an outer surface, and an front surface of contact lens is an inner surface, while rear surface of barrier layers 1 and 2 is an inner surface, while the front surface is an outer surface) and at least one layer of a medicament formulation (fig. 8, Drug 1 and Drug 2 in Drug Reservoir Layer), said medicament formulation selected from a liquid (paragraph 0135, “The drug can be provided or released from the drug receiving layer and coating of the present invention in an emulsion, water-in-oil emulsion…” an emulsion is a type of liquid) in which the inner surface of a first lens (fig. 8, contact lens) is treated with a layer of a first and second medicament formulation (fig. 8, drug reservoir layer with drug 1 and drug 2, the drug reservoir layer with the drug inside creates “a layer of medicament formulation”), and covered concentrically with a second lens (fig. 8, Barrier Layer 1 and Barrier Layer 2), PNG media_image1.png 171 657 media_image1.png Greyscale
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With respect to the language “consisting of”, Doshi’s device includes a drug reservoir layer structure ([0097]), and Doshi fails to teach wherein the inner surface of a first lens is treated with a layer of a first medicament formulation wherein the ocular agent delivery device comprises from 3-4 lenses (as best understood) and from 2-4 layers of medicament formulations. However, Barre teaches a contact lens (abstract) wherein a fluid 301 can be contained without the use of an additional reservoir structure (fig. 5, fluid 301 between optical pieces 102 and 202). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in Doshi such that the layer of medicament formulation to be included between layers of standard contact lens without the drug reservoir layer structure (such that Doshi consists of the above limitations), as taught and suggested by Barre, for the purpose of reducing multiple steps required to form the device, thereby assisting in reducing production costs. Moreover, another embodiment disclosed in Doshi teaches wherein the ocular agent delivery device can have three lenses (fig. 4, contact lens as a first lens, barrier layer 1 as a second lens, and barrier layer 2 as a third lens, see paragraphs 0140 and 0188 as described above) and have two layers of medicament formulations (fig. 4, drug 1 reservoir layer 1 and drug 1 reservoir layer 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in figure 8 of Doshi such that the device comprises from 3-4 lenses and from 2-4 layers of medicament formulations for the purpose of providing a suitable structure that provides intermittent drug release for an extended period of time (see Doshi, paragraph 0383), thereby allowing the contact lenses to stay within the eye of a user for a longer period of time, and since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bermis Co., 193 USPQ 8. Regarding claim 19, Doshi discloses a two-lens ocular agent delivery device (fig. 8, contact lens and barrier layers 1 and 2, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1 and 2 can be considered to be a second contact lens), wherein each lens is a standard manufactured contact lens (fig. 8, contact lenses as described above are “standard” since they do not have further built-in components. NOTE: “standard manufactured” is treated as a product-by-process limitation) consisting of: an inner lens (fig. 8, contact lens) comprising a lens body, a front surface, a rear surface, and a side surface (see annotated fig. 8 below), an outer lens (fig. 8, barrier layers 1 and 2) comprising a lens body, a front surface, a rear surface, and a side surface (see annotated fig. 8 below), and wherein said inner lens (fig. 8, contact lens) is positioned closer to an eyeball of an eye of a user than is said outer lens to the eyeball during use (fig. 8, barrier layers 1 and 2); and at least one agent-delivering or agent-containing film or layer (fig. 8, drug reservoir layer with drug 1 and drug 2) comprising a front surface, a rear surface, a side edge (see annotated fig. 8 below), and at least one agent or drug (paragraph 0218 “The coating of the present invention includes a drug reservoir layer, which includes at least one drug for later release into or onto a subject at the locus where the medical device is provided to a subject.”, fig. 8 has two medicaments drug 1 and drug 2), wherein said at least one agent-containing layer (fig. 8, drug reservoir layer) is dimensioned and configured to fit between said inner lens and said outer lens (fig. 8, drug reservoir layer fitting between inner lens and outer lens) when said inner lens and said outer lens are positioned proximate one another (fig. 8, contact lens and barrier layers 1 and 2 proximate to each other) for use such that said front surface of said inner lens is proximate to said rear surface of said outer lens positioned between said inner lens and said outer lens during use, and wherein said at least one agent or drug effects at least one desirable effect to the eye or other body part, organ or tissue of the user via the eye during use (paragraph 0026, “A third aspect of the present invention is a method of using a medical device of the present invention to treat or prevent a disease, disorder, or condition”). But is silent to wherein the inner lens, the outer lens, or the at least one agent-delivering or agent-containing film or layer has a convex configuration when viewed from a side view going from said rear surface toward said front surface.
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However, Barre teaches wherein the several layers 102 202 and 301 of a multi layered contact lens have a convex configuration when viewed from a side view going from the rear surface toward the front surface (fig. 5, ultra-thin optical piece 102 and 202 and saline 301 in between have a convex configuration from the bottom surface towards the top surface). It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the inner lens, outer lens, and the agent containing layer disclosed in Doshi by making them have a convex configuration when viewed from a side, as taught by Barre, for the purpose of providing a suitable surface for the contact lens to rest upon the eye of the user by configuring to the shape of the eye of the user, thereby ensuring that the contact lens stays in place during use. Regarding claim 20, Doshi discloses the device wherein said at least one agent or drug is at least one member selected from an antimicrobial agent (paragraph 0137, “In essence, virtually any drug can be useful in the present invention and an enumerated listing is beyond the scope of this document.”, paragraph 0272, “a printable formulation can also include at least one anti-microbial agent…”). Regarding claim 25, Doshi discloses the device further comprising a carrier (paragraph 0134, “Nanoencapsulation of drugs is known in the art… non-limiting examples of nanoencapsulation materials include… polymeric nanoparticles), wherein said agent or drug is loaded into or onto said carrier (see Doshi, paragraph 0134, “The drug can be provided or released from the drug receiving layer and coating of the present invention in a nanoencapsulated with an encapsulation material in nanoparticles.”). Regarding claim 26, Doshi discloses wherein the carrier is a natural polymer (see Doshi, paragraph 0132, “Preferred encapsulation materials include, but are not limited to… gelatin…” gelatin is a natural polymer). Regarding claim 27, Doshi is silent to wherein the outer lens is larger than the inner lens such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively of the inner lens. However, Barre teaches wherein the outer lens (fig. 5, ultra-thin optical piece 102) is larger than the inner lens (fig. 5, ultra-thin optical piece 202) such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively, of the inner lens (see annotated fig. 5 below).
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It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the lenses disclosed in Barre to have the outer lens be larger than the inner lens such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively of the inner lens, as taught by Barre, for the purpose of providing a suitable cover of the medicament from the outside environment since the applicant places no criticality on the sizes of the two lenses (see specification, paragraph 0064, “In one non- limiting example, the second or outer cover lens (360) is larger than the first or inner lens (310) such that the rear surface diameter and front surface diameter of the second or outer lens (360) are greater than the rear surface diameter and front surface diameter, respectively, of the first or inner lens (310). As another non-limiting example, the first or inner lens (310 and the second or outer cover lens (360) are substantially or exactly the same in size such that the rear surface diameter and front surface diameter of the second or outer lens (360 are substantially or exactly the same as the rear surface diameter and front surface diameter, respectively, of the first or inner lens (310).”), and it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Regarding claim 28, Doshi, as modified by Barre, discloses substantially the device of claim 19, but is silent to wherein a thickness of said lens body of said inner lens is greater than a thickness of said lens body of said outer lens. However, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the lenses disclosed in Doshi by making the lens body of the inner lens thicker than the lens body of the outer lens for the purpose of providing a sturdy base for the device to rest on the user’s eye since the applicant places no criticality on the thickness of the two lens bodies, as this configuration is mentioned as an “example” (see specification, paragraph 0064, “In another non-limiting example, the thickness of the lens body (320) of the first or inner lens (310) is greater than the thickness of the lens body (370) of the second or outer lens (360). As another non-limiting example, the thickness of the lens body 320 of the first or inner lens (310) is substantially or exactly the same as the thickness of the lens body (370) of the second or outer lens (360).”), and it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Regarding claim 51, Doshi, as modified by Barre, discloses a method of treating a disease or adverse condition of the eye (paragraph 0128, “For example, drug for the treatment or prevention of glaucoma would be provided with a contact lens”), said method comprising delivering a drug to an eye of a patient in need thereof by applying the device of claim 19 (see analysis of claim 19 above) to the eye (paragraph 0130, “One preferable aspect of the present invention is the delivery of a drug to the eye to treat or prevent or treat diseases, conditions, or disorders of the eye”, said device containing the drug or medicament on at least one agent-containing layer (fig. 8, drug reservoir layer). Regarding claim 53, Doshi discloses an ocular agent delivery device (abstract) comprising of an assembly of one or more standard contact lenses (fig. 11, contact lens, and barrier layers 1, 2, and 3 forming a contact lens, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1, 2, and 3 can be considered to be a second contact lens. Further, barrier layers 1, 2, and 3 are considered as a “standard” contact lens because it does not have built in components), and one or more agents or drugs (fig. 11, drug receiving layer with drug), wherein said agents or drugs are formulated as a particle (paragraph 0237, “the drug provided in the coating layer or released therefrom can be virtually any drug, including but not limited to small molecule drugs or biological drugs as they are known in the art”) and wherein said agent or drug is distributed on a surface of at least one of the contact lenses (fig. 11, drug receiving layer on surface of contact lens), and wherein at least one said agent or drug provides at least one desirable effect to the eye or other body part, organ or tissue when the agent-containing device is applied to the eye surface of a user (paragraph 0130, “Preferred drugs that are anti-inflammatory that are used to treat diseases, disorders, and conditions of the eye include…”), said eye surface including the cornea and the inner eyelid (paragraph 0118, “the drug receiving layer can release drug towards the cornea or towards the eyelid when the contact lens is engaged with the eye”). With respect to the limitation “consisting of”, Doshi’s device includes an additional drug receiving layer structure that holds the drug (paragraph 0121). However, Barre teaches a contact lens (abstract) wherein a fluid 301 can be contained without the use of an additional receiving layer structure (fig. 5, fluid 301 between optical pieces 102 and 202). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in Doshi such that the layer of medicament formulation to be included between layers of standard contact lens without the drug reservoir layer structure (such that Doshi consists of the above limitations), as taught and suggested by Barre, for the purpose of reducing the steps required to form the device, thereby assisting in reducing production costs. Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 20 above, and in further view of Grucza (US 3807398 A). Regarding claim 21, Doshi, as modified by Barre, disclose substantially the device disclosed in claim 20, but is silent to wherein said antibacterial/antimicrobial agent is at least one member selected from the group consisting of tetracycline, sulfonamides, ampicillin trihydrate, oxytetracycline, penicillin, chloramphenicol, and nystatin. However, Grucza teaches that the use of penicillin is known in the art of ocular implants (col. 7, lines 16-20). It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to replace the medicine disclosed in Doshi with penicillin, as taught by Grucza, for the purpose of providing a suitable medicine known in the art for treating bacterial infections, thereby allowing the device to treat specific diseases or adverse conditions. Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 20 above, and in further view of Hussain (US 3960150 A). Regarding claim 22, Doshi, as modified by Barre, disclose substantially the device disclosed in claim 20, but is silent to wherein said tear modifying agent is at least one member selected from the group consisting of a calcium compound and a lipid compound. However, Hussain teaches that compounds that use calcium compounds are known in the art of drug delivery to the eye (col. 14, lines 42-48, “Additionally, if desired, particles of a known drug carrier, such as… calcium carbonate… can be impregnated with the drug and encapsulated…”), NOTE: applicant defines calcium compounds as tear modifying agents, with CaCO3 as an example. See specification, paragraph 0096, “Tear modifying agents include for example, a calcium compound (such as one that includes at least one of CaCO3…). Therefore, It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the medicament disclosed in Doshi to include a calcium compound, as taught by Hussain, for the purpose of providing a suitable carrier for the drug (see Hussain, col. 14, lines 42-48, “Additionally, if desired, particles of a known drug carrier, such as… calcium carbonate… can be impregnated with the drug and encapsulated…”), thereby allowing the drug dosage to be properly administered. Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 19 above, and in further view of Allphin (US 20120076865 A1). Regarding claim 23, Doshi, as modified by Barre, discloses substantially the device disclosed in claim 20, but is silent to wherein said agent or drug is selected from a sustained-release type and a controlled release type. However, Allphin teaches that controlled release type drugs are known in the art of drug delivery (paragraph 0025, “Formulations described herein are suited to the controlled release of high dose drugs that are highly water soluble”). It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention replace the drug disclosed in Doshi with a controlled release type drug, as taught by Allphin, for the purpose of providing an effective drug having a consistent dosage of a drug overtime with controlling release of high dose drugs (paragraph 0025, “Formulations described herein are suited to the controlled release of high dose drugs that are highly water soluble”). Regarding claim 24, Doshi, as modified by Barre and Allphin, discloses wherein said controlled-release type is an agent rate-controlling formulation of said agent that provides a controlled release of said agent (see Allphin, paragraph 0031, “As used herein, the term “controlled release” describes a formulation, such as, for example, a unit dosage form, that releases drug over a prolonged period of time”). Response to Arguments Applicant's arguments filed 05/20/2022 have been fully considered but they are not persuasive. In response to the applicant’s argument “Applicant believes that the usual and customary definition of “standard” excludes the more complex, manufactures lens described by Doshi, referring to readily available, ready-to-wear, contact lenses in common use”, the examiner respectfully disagrees. While a “standard contact lens” is mentioned within the specification and abstract, it is still not readily apparent what a “standard contact lens” is, since the specification fails to further define what would comprehend as ‘standard contact lens’. As best understood by the examiner, the contact lenses disclosed in Doshi are considered to be “standard contact lenses” because they do not have built-in components within each contact lens. In response to the argument “In addition, including the term ‘assembly’, as found in the abstract, differentiates Applicant’s invention, i.e., an assembly or combination of two or more pre-existing standard lenses, from the Doshi device which is produced through manufacturing process such as 3D printer”, the examiner respectfully disagrees. Doshi consists of an assembly of two contact lenses as described in claims 2, 19, and 53 above, as the device disclosed in Doshi is a combination of the two contact lenses described in Doshi. Therefore, the inclusion of the term “assembly” would not differentiate the Applicant’s invention from the disclosure of Doshi. In response to applicant’s argument “by making an amendment to replace “comprising” with “consisting of” in both claims 2 and 53, applicant has limited the claims to exclude features and limitations that are described and claimed by Doshi”, the argument is rendered moot under new interpretations of the prior art and the use of additional prior art. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRANDON W LEVY whose telephone number is (571)272-7582. The examiner can normally be reached M-F 8:00 AM- 4:30 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas Weiss can be reached on (571) 270-1775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Brandon W. Levy/Examiner, Art Unit 3781 /QUANG D THANH/Primary Examiner, Art Unit 3785 | 2022-07-27T22:06:16 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment An amendment was filed on 05/20/2022. Claims 2, 19-28, 51, and 53 are currently amended. Claims 1-54 are currently pending, and claims 2, 19-28, 51, and 53 are being examined. Claim Objections Claim 2 is objected to because of the following informalities: Regarding claim 2, “each lens comprising” in line 2 should read -each standard contact lens-, “surface of a first lens” should read -surface of a first standard contact lens-, “concentrically with a second lens” should read -concentrically with a second standard contact lens-, and “added to the second lens are alternating layers of medicament and lenses” should read -added to the second standard contact lens are alternating layers of medicament formulation and standard contact lenses- Moreover, in claim 2, the limitation “each lens comprising an outer surface and an inner surface, and at least one layer of medicament formulation” is unclear and appears to suggest that each lens also comprises one layer of medicament formulation, which is not described in the specification, thus is it recommended to be replaced with -each lens comprising an outer surface and an inner surface, and wherein the ocular agent delivery device further includes at least one layer of a medicament formulation- Further regarding claim 2, “such that the agent delivery device comprises from 1-4 lenses and from 104 medicament formulations” should read -such that the agent delivery device comprises from 1-4 standard contact lenses and from 1-4 layers of medicament formulation” Regarding claim 53, the limitation “the agent-containing device” should read -the ocular agent delivery device-, and “the eye surface of a user” should read -an eye surface of a user- Appropriate correction is required.",
"Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C.",
"112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. Claims 2, 19-28, 51, and 53 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.",
"Claims 2, 19, and 53 have been amended to replace the language of “comprising of” with “consisting of” and posits that support for the amendments is found in the abstract and paragraphs 0020, 0073, and 0081 of the specification (see applicant’s remarks). However, no support is shown for an ocular agent delivery device consisting of the limitations recited in claims 2, 19, and 53, but rather the specification suggests that the embodiments of the invention comprise the limitations recited in claims 2, 19, and 53. Therefore, claims 2, 19, and 53 are considered to include new matter not previously disclosed within the specification. The remaining claims are rejected as being dependent on rejected independent claims. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.",
"The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 2, 19-28, 51, and 53 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 2, 19, and 53 recite the limitation “standard contact lenses” and “standard manufactured contact lens” to further clarify the scope of the invention. However, the metes and bounds of a “standard contact lens” has not been disclosed within the specification, and the difference between a “standard contact lens” and a non-standard contact lens is unclear. For the purpose of examination, a “standard contact lens” will be interpreted as a contact lens that does not have additional structures built in. Claim 2 further recites the limitation “such that the agent delivery device comprises from 1-4 lenses and from 1-4 medicament formulations”. It is unclear how the agent delivery device can comprise of 1 lens when the ocular agent delivery device consists of “at least two layers of standard contact lenses”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).",
"In the present instance, claim 2 recites the broad recitation “at least 2 layers of standard contact lenses”, and the claim also recites “comprises from 1-4 lenses” which is the narrower statement of the range/limitation. . The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Further, as the claim further recites “added to the second lens are alternating layers of medicament and lenses”, the ocular agent delivery device would need at least one additional contact lens and at least one additional medicament formulations, such that the device needs at least 3 lenses and at least 2 medicament formulation.",
"For the purpose of examination, the limitation will be interpreted as the agent delivery device comprising from 3-4 lenses and from 2-4 medicament formulations. The remaining claims have been rejected by virtue of being dependent on claim 19. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claims 2, 19-20, 25-28, 51, and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre (US 20150062528 A1). Regarding claim 2, as best understood, Doshi discloses an ocular agent delivery device (abstract) comprising of an assembly of at least two layers of standard contact lenses (fig.",
"8, contact lens and barrier layers 1 and 2, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1 and 2 can be considered to be a second contact lens and furthermore, the barrier layers would also serve as standard contact lens since both the contact lens layer and the barrier layers create a lens device with a clear optical zone (see fig. 8, clear optical zone at the center of the device) . Further, barrier layers 1 and 2 are considered as a “standard” contact lens because it does not have built in components), each lens comprising an outer surface and an inner surface (see annotated fig. 8 below, rear surface of contact lens is an outer surface, and an front surface of contact lens is an inner surface, while rear surface of barrier layers 1 and 2 is an inner surface, while the front surface is an outer surface) and at least one layer of a medicament formulation (fig.",
"8, Drug 1 and Drug 2 in Drug Reservoir Layer), said medicament formulation selected from a liquid (paragraph 0135, “The drug can be provided or released from the drug receiving layer and coating of the present invention in an emulsion, water-in-oil emulsion…” an emulsion is a type of liquid) in which the inner surface of a first lens (fig. 8, contact lens) is treated with a layer of a first and second medicament formulation (fig. 8, drug reservoir layer with drug 1 and drug 2, the drug reservoir layer with the drug inside creates “a layer of medicament formulation”), and covered concentrically with a second lens (fig. 8, Barrier Layer 1 and Barrier Layer 2), PNG media_image1.png 171 657 media_image1.png Greyscale PNG media_image2.png 285 822 media_image2.png Greyscale With respect to the language “consisting of”, Doshi’s device includes a drug reservoir layer structure ([0097]), and Doshi fails to teach wherein the inner surface of a first lens is treated with a layer of a first medicament formulation wherein the ocular agent delivery device comprises from 3-4 lenses (as best understood) and from 2-4 layers of medicament formulations. However, Barre teaches a contact lens (abstract) wherein a fluid 301 can be contained without the use of an additional reservoir structure (fig.",
"5, fluid 301 between optical pieces 102 and 202). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in Doshi such that the layer of medicament formulation to be included between layers of standard contact lens without the drug reservoir layer structure (such that Doshi consists of the above limitations), as taught and suggested by Barre, for the purpose of reducing multiple steps required to form the device, thereby assisting in reducing production costs.",
"Moreover, another embodiment disclosed in Doshi teaches wherein the ocular agent delivery device can have three lenses (fig. 4, contact lens as a first lens, barrier layer 1 as a second lens, and barrier layer 2 as a third lens, see paragraphs 0140 and 0188 as described above) and have two layers of medicament formulations (fig. 4, drug 1 reservoir layer 1 and drug 1 reservoir layer 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in figure 8 of Doshi such that the device comprises from 3-4 lenses and from 2-4 layers of medicament formulations for the purpose of providing a suitable structure that provides intermittent drug release for an extended period of time (see Doshi, paragraph 0383), thereby allowing the contact lenses to stay within the eye of a user for a longer period of time, and since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art.",
"St. Regis Paper Co. v. Bermis Co., 193 USPQ 8. Regarding claim 19, Doshi discloses a two-lens ocular agent delivery device (fig. 8, contact lens and barrier layers 1 and 2, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1 and 2 can be considered to be a second contact lens), wherein each lens is a standard manufactured contact lens (fig. 8, contact lenses as described above are “standard” since they do not have further built-in components. NOTE: “standard manufactured” is treated as a product-by-process limitation) consisting of: an inner lens (fig. 8, contact lens) comprising a lens body, a front surface, a rear surface, and a side surface (see annotated fig. 8 below), an outer lens (fig.",
"8, barrier layers 1 and 2) comprising a lens body, a front surface, a rear surface, and a side surface (see annotated fig. 8 below), and wherein said inner lens (fig. 8, contact lens) is positioned closer to an eyeball of an eye of a user than is said outer lens to the eyeball during use (fig. 8, barrier layers 1 and 2); and at least one agent-delivering or agent-containing film or layer (fig. 8, drug reservoir layer with drug 1 and drug 2) comprising a front surface, a rear surface, a side edge (see annotated fig. 8 below), and at least one agent or drug (paragraph 0218 “The coating of the present invention includes a drug reservoir layer, which includes at least one drug for later release into or onto a subject at the locus where the medical device is provided to a subject.”, fig.",
"8 has two medicaments drug 1 and drug 2), wherein said at least one agent-containing layer (fig. 8, drug reservoir layer) is dimensioned and configured to fit between said inner lens and said outer lens (fig. 8, drug reservoir layer fitting between inner lens and outer lens) when said inner lens and said outer lens are positioned proximate one another (fig. 8, contact lens and barrier layers 1 and 2 proximate to each other) for use such that said front surface of said inner lens is proximate to said rear surface of said outer lens positioned between said inner lens and said outer lens during use, and wherein said at least one agent or drug effects at least one desirable effect to the eye or other body part, organ or tissue of the user via the eye during use (paragraph 0026, “A third aspect of the present invention is a method of using a medical device of the present invention to treat or prevent a disease, disorder, or condition”).",
"But is silent to wherein the inner lens, the outer lens, or the at least one agent-delivering or agent-containing film or layer has a convex configuration when viewed from a side view going from said rear surface toward said front surface. PNG media_image3.png 171 657 media_image3.png Greyscale PNG media_image4.png 297 822 media_image4.png Greyscale However, Barre teaches wherein the several layers 102 202 and 301 of a multi layered contact lens have a convex configuration when viewed from a side view going from the rear surface toward the front surface (fig. 5, ultra-thin optical piece 102 and 202 and saline 301 in between have a convex configuration from the bottom surface towards the top surface). It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the inner lens, outer lens, and the agent containing layer disclosed in Doshi by making them have a convex configuration when viewed from a side, as taught by Barre, for the purpose of providing a suitable surface for the contact lens to rest upon the eye of the user by configuring to the shape of the eye of the user, thereby ensuring that the contact lens stays in place during use.",
"Regarding claim 20, Doshi discloses the device wherein said at least one agent or drug is at least one member selected from an antimicrobial agent (paragraph 0137, “In essence, virtually any drug can be useful in the present invention and an enumerated listing is beyond the scope of this document.”, paragraph 0272, “a printable formulation can also include at least one anti-microbial agent…”). Regarding claim 25, Doshi discloses the device further comprising a carrier (paragraph 0134, “Nanoencapsulation of drugs is known in the art… non-limiting examples of nanoencapsulation materials include… polymeric nanoparticles), wherein said agent or drug is loaded into or onto said carrier (see Doshi, paragraph 0134, “The drug can be provided or released from the drug receiving layer and coating of the present invention in a nanoencapsulated with an encapsulation material in nanoparticles.”). Regarding claim 26, Doshi discloses wherein the carrier is a natural polymer (see Doshi, paragraph 0132, “Preferred encapsulation materials include, but are not limited to… gelatin…” gelatin is a natural polymer). Regarding claim 27, Doshi is silent to wherein the outer lens is larger than the inner lens such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively of the inner lens.",
"However, Barre teaches wherein the outer lens (fig. 5, ultra-thin optical piece 102) is larger than the inner lens (fig. 5, ultra-thin optical piece 202) such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively, of the inner lens (see annotated fig. 5 below). PNG media_image5.png 285 1018 media_image5.png Greyscale It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the lenses disclosed in Barre to have the outer lens be larger than the inner lens such that a rear surface diameter and a front surface diameter of said outer lens are greater than a rear surface diameter and a front surface diameter, respectively of the inner lens, as taught by Barre, for the purpose of providing a suitable cover of the medicament from the outside environment since the applicant places no criticality on the sizes of the two lenses (see specification, paragraph 0064, “In one non- limiting example, the second or outer cover lens (360) is larger than the first or inner lens (310) such that the rear surface diameter and front surface diameter of the second or outer lens (360) are greater than the rear surface diameter and front surface diameter, respectively, of the first or inner lens (310). As another non-limiting example, the first or inner lens (310 and the second or outer cover lens (360) are substantially or exactly the same in size such that the rear surface diameter and front surface diameter of the second or outer lens (360 are substantially or exactly the same as the rear surface diameter and front surface diameter, respectively, of the first or inner lens (310).”), and it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art.",
"In re Rose, 105 USPQ 237 (CCPA 1955). Regarding claim 28, Doshi, as modified by Barre, discloses substantially the device of claim 19, but is silent to wherein a thickness of said lens body of said inner lens is greater than a thickness of said lens body of said outer lens. However, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the lenses disclosed in Doshi by making the lens body of the inner lens thicker than the lens body of the outer lens for the purpose of providing a sturdy base for the device to rest on the user’s eye since the applicant places no criticality on the thickness of the two lens bodies, as this configuration is mentioned as an “example” (see specification, paragraph 0064, “In another non-limiting example, the thickness of the lens body (320) of the first or inner lens (310) is greater than the thickness of the lens body (370) of the second or outer lens (360). As another non-limiting example, the thickness of the lens body 320 of the first or inner lens (310) is substantially or exactly the same as the thickness of the lens body (370) of the second or outer lens (360).”), and it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).",
"Regarding claim 51, Doshi, as modified by Barre, discloses a method of treating a disease or adverse condition of the eye (paragraph 0128, “For example, drug for the treatment or prevention of glaucoma would be provided with a contact lens”), said method comprising delivering a drug to an eye of a patient in need thereof by applying the device of claim 19 (see analysis of claim 19 above) to the eye (paragraph 0130, “One preferable aspect of the present invention is the delivery of a drug to the eye to treat or prevent or treat diseases, conditions, or disorders of the eye”, said device containing the drug or medicament on at least one agent-containing layer (fig.",
"8, drug reservoir layer). Regarding claim 53, Doshi discloses an ocular agent delivery device (abstract) comprising of an assembly of one or more standard contact lenses (fig. 11, contact lens, and barrier layers 1, 2, and 3 forming a contact lens, paragraph 0188 “A variety of materials are known in the art for making contact lenses… Preferred materials include, but are not limited to, acrylics, silicones, polyvinylalcohols, and combinations thereof”, paragraph 0140, “The barrier layer can include a polymer… preferable polymers include, but are not limited to silicone, polyhydroxyethylmethylacrylates (polyhema, PVA [polyvinyl alcohols], poly-n-vinyl pyrolidone, and polycarbonates”. NOTE: Since the contact lens and the barrier layers 1 and 2 are both made of polyvinyl alcohols or silicone, barrier layers 1, 2, and 3 can be considered to be a second contact lens. Further, barrier layers 1, 2, and 3 are considered as a “standard” contact lens because it does not have built in components), and one or more agents or drugs (fig. 11, drug receiving layer with drug), wherein said agents or drugs are formulated as a particle (paragraph 0237, “the drug provided in the coating layer or released therefrom can be virtually any drug, including but not limited to small molecule drugs or biological drugs as they are known in the art”) and wherein said agent or drug is distributed on a surface of at least one of the contact lenses (fig. 11, drug receiving layer on surface of contact lens), and wherein at least one said agent or drug provides at least one desirable effect to the eye or other body part, organ or tissue when the agent-containing device is applied to the eye surface of a user (paragraph 0130, “Preferred drugs that are anti-inflammatory that are used to treat diseases, disorders, and conditions of the eye include…”), said eye surface including the cornea and the inner eyelid (paragraph 0118, “the drug receiving layer can release drug towards the cornea or towards the eyelid when the contact lens is engaged with the eye”).",
"With respect to the limitation “consisting of”, Doshi’s device includes an additional drug receiving layer structure that holds the drug (paragraph 0121). However, Barre teaches a contact lens (abstract) wherein a fluid 301 can be contained without the use of an additional receiving layer structure (fig. 5, fluid 301 between optical pieces 102 and 202). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device disclosed in Doshi such that the layer of medicament formulation to be included between layers of standard contact lens without the drug reservoir layer structure (such that Doshi consists of the above limitations), as taught and suggested by Barre, for the purpose of reducing the steps required to form the device, thereby assisting in reducing production costs. Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 20 above, and in further view of Grucza (US 3807398 A). Regarding claim 21, Doshi, as modified by Barre, disclose substantially the device disclosed in claim 20, but is silent to wherein said antibacterial/antimicrobial agent is at least one member selected from the group consisting of tetracycline, sulfonamides, ampicillin trihydrate, oxytetracycline, penicillin, chloramphenicol, and nystatin.",
"However, Grucza teaches that the use of penicillin is known in the art of ocular implants (col. 7, lines 16-20). It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to replace the medicine disclosed in Doshi with penicillin, as taught by Grucza, for the purpose of providing a suitable medicine known in the art for treating bacterial infections, thereby allowing the device to treat specific diseases or adverse conditions. Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 20 above, and in further view of Hussain (US 3960150 A). Regarding claim 22, Doshi, as modified by Barre, disclose substantially the device disclosed in claim 20, but is silent to wherein said tear modifying agent is at least one member selected from the group consisting of a calcium compound and a lipid compound. However, Hussain teaches that compounds that use calcium compounds are known in the art of drug delivery to the eye (col. 14, lines 42-48, “Additionally, if desired, particles of a known drug carrier, such as… calcium carbonate… can be impregnated with the drug and encapsulated…”), NOTE: applicant defines calcium compounds as tear modifying agents, with CaCO3 as an example. See specification, paragraph 0096, “Tear modifying agents include for example, a calcium compound (such as one that includes at least one of CaCO3…).",
"Therefore, It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the medicament disclosed in Doshi to include a calcium compound, as taught by Hussain, for the purpose of providing a suitable carrier for the drug (see Hussain, col. 14, lines 42-48, “Additionally, if desired, particles of a known drug carrier, such as… calcium carbonate… can be impregnated with the drug and encapsulated…”), thereby allowing the drug dosage to be properly administered. Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Doshi in view of Barre as described in claim 19 above, and in further view of Allphin (US 20120076865 A1). Regarding claim 23, Doshi, as modified by Barre, discloses substantially the device disclosed in claim 20, but is silent to wherein said agent or drug is selected from a sustained-release type and a controlled release type. However, Allphin teaches that controlled release type drugs are known in the art of drug delivery (paragraph 0025, “Formulations described herein are suited to the controlled release of high dose drugs that are highly water soluble”).",
"It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention replace the drug disclosed in Doshi with a controlled release type drug, as taught by Allphin, for the purpose of providing an effective drug having a consistent dosage of a drug overtime with controlling release of high dose drugs (paragraph 0025, “Formulations described herein are suited to the controlled release of high dose drugs that are highly water soluble”). Regarding claim 24, Doshi, as modified by Barre and Allphin, discloses wherein said controlled-release type is an agent rate-controlling formulation of said agent that provides a controlled release of said agent (see Allphin, paragraph 0031, “As used herein, the term “controlled release” describes a formulation, such as, for example, a unit dosage form, that releases drug over a prolonged period of time”).",
"Response to Arguments Applicant's arguments filed 05/20/2022 have been fully considered but they are not persuasive. In response to the applicant’s argument “Applicant believes that the usual and customary definition of “standard” excludes the more complex, manufactures lens described by Doshi, referring to readily available, ready-to-wear, contact lenses in common use”, the examiner respectfully disagrees. While a “standard contact lens” is mentioned within the specification and abstract, it is still not readily apparent what a “standard contact lens” is, since the specification fails to further define what would comprehend as ‘standard contact lens’. As best understood by the examiner, the contact lenses disclosed in Doshi are considered to be “standard contact lenses” because they do not have built-in components within each contact lens. In response to the argument “In addition, including the term ‘assembly’, as found in the abstract, differentiates Applicant’s invention, i.e., an assembly or combination of two or more pre-existing standard lenses, from the Doshi device which is produced through manufacturing process such as 3D printer”, the examiner respectfully disagrees.",
"Doshi consists of an assembly of two contact lenses as described in claims 2, 19, and 53 above, as the device disclosed in Doshi is a combination of the two contact lenses described in Doshi. Therefore, the inclusion of the term “assembly” would not differentiate the Applicant’s invention from the disclosure of Doshi. In response to applicant’s argument “by making an amendment to replace “comprising” with “consisting of” in both claims 2 and 53, applicant has limited the claims to exclude features and limitations that are described and claimed by Doshi”, the argument is rendered moot under new interpretations of the prior art and the use of additional prior art. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).",
"A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRANDON W LEVY whose telephone number is (571)272-7582.",
"The examiner can normally be reached M-F 8:00 AM- 4:30 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas Weiss can be reached on (571) 270-1775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"/Brandon W. Levy/Examiner, Art Unit 3781 /QUANG D THANH/Primary Examiner, Art Unit 3785"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION {¶ 1} Plaintiff-appellant, Western Reserve Mutual Casualty Company ("Western Reserve"), appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, Virginia Clear. Western Reserve assigns a single error: The trial court erred in granting defendant's motion for summary judgment. Because a genuine issue of material fact exists, we reverse. {¶ 2} As subrogee of its insured, Stacy Bishof, Western Reserve commenced this action against defendant to recover for damages its insured sustained as a result of defendant's allegedly negligent operation of a motor vehicle. Finding no genuine issues of material fact in applying the sudden emergency defense to obviate defendant's alleged liability, the trial court granted defendant's summary judgment motion and entered judgment accordingly. On appeal, Western Reserve asserts the trial court erred in concluding no genuine issues of material fact exist. {¶ 3} An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995),101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994),94 Ohio App.3d 579, 588. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v.State Emp. Relations Bd. (1997), 78 Ohio St.3d 181. {¶ 4} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the non-moving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in Civ.R. 56(C), to affirmatively demonstrate that the non-moving party has no evidence to support the non-moving party's claims. Id. Vahilav. Hall (1997), 77 Ohio St.3d 421. Once the moving party discharges its initial burden, summary judgment is appropriate if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial.Dresher, at 293. {¶ 5} The parties do not dispute that defendant's vehicle collided with Bishof's vehicle. Defendant, however, asserts she is free of liability through application of the "sudden medical emergency" defense. The issue on appeal is whether that defense applies as a matter of law to the facts of this case. {¶ 6} The affirmative defense of sudden unconsciousness provides that, where "the driver of an automobile is suddenly stricken by a period of unconsciousness which [she] has no reason to anticipate and which renders it impossible for [her] to control the car [she] is driving, [she] is not chargeable with negligence as to such lack of control."Lehman v. Haynam (1956), 164 Ohio St. 595, paragraph two of the syllabus. The Ohio Supreme Court recently reaffirmed this defense inRoman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-Ohio-3655 (applying defense where the defendant suffered fatal heart attack). In invoking the defense, the defendant has the burden to demonstrate that (1) unconsciousness rendered control of the vehicle impossible, and (2) the unconsciousness was unforeseeable. Id. {¶ 7} The Ohio Supreme Court has stated that "many cases in which sudden medical emergency is raised as a defense to negligence are not well suited to resolution by summary judgments or directed verdicts, but must proceed to trial, where it is incumbent upon the factfinder to determine whether the requirements of the defense have been met." Roman, ¶ 58 (upholding jury verdict for defendant premised on sudden medical emergency in the form of a heart attack where no evidence suggested the defendant took any evasive action or applied his brakes prior to the collision). Similarly stated, "the question of whether or not a defendant was unconscious at the moment the accident occurred is almost entirely based on the credibility of the defendant, because no one else can really verify that fact. Credibility issues are not resolved as a matter of law, but are left to the trier of fact to determine." Ciccarelli v.Miller, Mahoning App. No. 03MA60, 2004-Ohio-5123, ¶ 35, citing Lehman, supra. Lehman rejected the argument that a defendant's assertion that he or she was unconscious must be believed as a matter of law: "It would be an unrealistic situation if a driver claiming that he blacked out must be believed as a matter of law, because another driver could not positively say that the first driver did not black out." Id. at 601. {¶ 8} Here, defendant worked as a registered nurse at Central Ohio Psychiatric Hospital. After finishing her shift on July 22, 2002, defendant started for home on northbound Interstate 71. According to defendant's affidavit, she felt fine on the day of the accident and had no history of stroke, transient eschemic attacks, seizures, syncopes, or any other neurological defects. Defendant's affidavit further asserts that as she was driving home, she lost consciousness, rendering it impossible to control her vehicle prior to the collision. Defendant maintains she does not remember anything until after the collision, when a man approached defendant's vehicle and told her help was on the way. Thereafter, an ambulance transported defendant to Riverside Hospital. Defendant was diagnosed with syncope, or unconsciousness from an unknown cause. Defendant did not present any expert testimony in support of her summary judgment motion. {¶ 9} At the time of the accident, defendant was taking at least nine prescription medications for health conditions, including, but not limited to, high blood pressure, diabetes, and asthma. Four days prior to the accident, defendant's doctor raised her dosage for Clonidine, a blood pressure medication known to cause unconsciousness in some individuals. Less than two months after the accident, defendant underwent quadruple bypass surgery. Defendant has undergone a number of additional surgeries for a variety of conditions. {¶ 10} Although Western Reserve argued in the trial court that defendant's affidavit was insufficient to establish unconsciousness, the trial court found Western Reserve offered no evidence to rebut defendant's sworn statement that she was unconscious at the time of the collision. The trial court further concluded defendant's unconsciousness was not foreseeable, as defendant had no previous episodes and thus had no reason to anticipate a blackout, despite her numerous medications. {¶ 11} On appeal, Western Reserve contends a genuine issue of material fact precludes the trial court's determination that defendant was unconscious immediately prior to the collision. Western Reserve points to defendant's deposition testimony, where defendant stated that at the point of impact, she recalls seeing a white van near the passenger side of her vehicle. In her deposition, defendant claims she lost consciousness at some point on the highway, briefly came to, noticed the van, attempted to turn the wheel, collided with the van and became unconscious again. Western Reserve contends that evidence is sufficient to create a jury question about when defendant lost consciousness and whether that unconsciousness actually rendered control of her vehicle impossible. {¶ 12} In Ciccarelli, the court considered whether the defendant lost consciousness before or after she pressed the accelerator in her car, causing her car to travel across five lanes of traffic; it concluded a genuine issue of fact precluded summary judgment. Ciccarelli, supra. Although the defendant's doctor submitted an affidavit stating that defendant suffered an unforeseen blackout, the court recognized the doctor had no way of knowing when the alleged blackout occurred. The only person with such knowledge was the defendant, and her deposition testimony revealed she did not remember what happened. Moreover, her testimony indicated she may have left skid marks, "which would tend to show that she was conscious enough to hit the brakes. * * * It [was] also clear that [defendant] hit her head during the collision, which could explain how and when she became unconscious." Id. at ¶ 40. In accordance with the dictates set forth in Lehman and Roman, supra, the court concluded summary judgment was inappropriate. {¶ 13} Similarly, in Radsick v. Estate of Kuester (July 10, 1998), Carroll App. No. 686, the court reversed summary judgment granted to the defendant. Although the defendant alleged the deceased driver suffered an unforeseen heart attack that caused her to lose control of her vehicle, evidence indicated the deceased driver failed to properly negotiate an upcoming curve in the road. The court held that when the evidence presented was viewed in a light most favorable to the non-moving party, reasonable minds could conclude the defendant lost control of her vehicle by failing to properly negotiate a curve, as opposed to suffering a heart attack. Id. Accordingly, the court found summary judgment was inappropriate. Id.; Castle v. Seelig (July 9, 1993), Huron App. No. H-92-059 (reversing a summary judgment where defendant's deposition testimony created a question of fact as to whether he lost consciousness or simply could not recall the details of the collision). {¶ 14} Without question, some appellate courts have concluded the sudden medical emergency defense may be decided as a matter of law. See, generally, Jenkins v. Morgan (1988), 57 Ohio App.3d 40 (upholding directed verdict where plaintiff failed to present substantial evidence to contradict the defendant's evidence that nauseous feeling, heart attack, and collision occurred within seconds of each other); Vinci v.Heimbach (Dec. 17, 1998), Cuyahoga App. No. 73440 (upholding summary judgment where defendant had an epileptic seizure and was being treated for the condition, and the record contained "no evidence of any lapse of time" between the seizure and collision). Fitas v. Estate of Baldridge (1995), 102 Ohio App.3d 365 (upholding summary judgment where defendant suffered a fatal heart attack). {¶ 15} Here, however, defendant's own testimony, when construed in a light most favorable to Western Reserve, creates a question of fact about when defendant's unconsciousness allegedly occurred. Ciccarelli, supra. Specifically, defendant testified in her deposition that she lost consciousness at some point on the highway, briefly came to, noticed the van, attempted to turn the wheel, collided with the van and again became unconscious. Defendant's testimony thus suggests, through her awareness of the van's presence near her car and her attempt to avoid colliding with it, that defendant was conscious. Ciccarelli, supra. As a result, a genuine issue of material fact exists for trial in determining whether defendant was unconscious and if so, when she became unconscious.Dresher, supra. {¶ 16} Because a genuine issue of material fact exists as to whether defendant was unconscious prior to the collision, we remand this matter to the trial court for further proceedings. Should the trier of fact find defendant actually was conscious, the issue of foreseeability does not arise. Accordingly, we do not address the issue at this time. {¶ 17} Having sustained Western Reserve's single assignment of error, we reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion. Judgment reversed and case remanded. Klatt and Bowman, JJ., concur. BOWMAN, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. {PRIVATE} | 07-06-2016 | [
"OPINION {¶ 1} Plaintiff-appellant, Western Reserve Mutual Casualty Company (\"Western Reserve\"), appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, Virginia Clear. Western Reserve assigns a single error: The trial court erred in granting defendant's motion for summary judgment. Because a genuine issue of material fact exists, we reverse. {¶ 2} As subrogee of its insured, Stacy Bishof, Western Reserve commenced this action against defendant to recover for damages its insured sustained as a result of defendant's allegedly negligent operation of a motor vehicle. Finding no genuine issues of material fact in applying the sudden emergency defense to obviate defendant's alleged liability, the trial court granted defendant's summary judgment motion and entered judgment accordingly. On appeal, Western Reserve asserts the trial court erred in concluding no genuine issues of material fact exist.",
"{¶ 3} An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995),101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994),94 Ohio App.3d 579, 588. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v.State Emp. Relations Bd.",
"(1997), 78 Ohio St.3d 181. {¶ 4} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the non-moving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in Civ.R.",
"56(C), to affirmatively demonstrate that the non-moving party has no evidence to support the non-moving party's claims. Id. Vahilav. Hall (1997), 77 Ohio St.3d 421. Once the moving party discharges its initial burden, summary judgment is appropriate if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial.Dresher, at 293. {¶ 5} The parties do not dispute that defendant's vehicle collided with Bishof's vehicle. Defendant, however, asserts she is free of liability through application of the \"sudden medical emergency\" defense. The issue on appeal is whether that defense applies as a matter of law to the facts of this case. {¶ 6} The affirmative defense of sudden unconsciousness provides that, where \"the driver of an automobile is suddenly stricken by a period of unconsciousness which [she] has no reason to anticipate and which renders it impossible for [her] to control the car [she] is driving, [she] is not chargeable with negligence as to such lack of control.",
"\"Lehman v. Haynam (1956), 164 Ohio St. 595, paragraph two of the syllabus. The Ohio Supreme Court recently reaffirmed this defense inRoman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-Ohio-3655 (applying defense where the defendant suffered fatal heart attack). In invoking the defense, the defendant has the burden to demonstrate that (1) unconsciousness rendered control of the vehicle impossible, and (2) the unconsciousness was unforeseeable. Id. {¶ 7} The Ohio Supreme Court has stated that \"many cases in which sudden medical emergency is raised as a defense to negligence are not well suited to resolution by summary judgments or directed verdicts, but must proceed to trial, where it is incumbent upon the factfinder to determine whether the requirements of the defense have been met.\" Roman, ¶ 58 (upholding jury verdict for defendant premised on sudden medical emergency in the form of a heart attack where no evidence suggested the defendant took any evasive action or applied his brakes prior to the collision). Similarly stated, \"the question of whether or not a defendant was unconscious at the moment the accident occurred is almost entirely based on the credibility of the defendant, because no one else can really verify that fact. Credibility issues are not resolved as a matter of law, but are left to the trier of fact to determine.\"",
"Ciccarelli v.Miller, Mahoning App. No. 03MA60, 2004-Ohio-5123, ¶ 35, citing Lehman, supra. Lehman rejected the argument that a defendant's assertion that he or she was unconscious must be believed as a matter of law: \"It would be an unrealistic situation if a driver claiming that he blacked out must be believed as a matter of law, because another driver could not positively say that the first driver did not black out.\"",
"Id. at 601. {¶ 8} Here, defendant worked as a registered nurse at Central Ohio Psychiatric Hospital. After finishing her shift on July 22, 2002, defendant started for home on northbound Interstate 71. According to defendant's affidavit, she felt fine on the day of the accident and had no history of stroke, transient eschemic attacks, seizures, syncopes, or any other neurological defects. Defendant's affidavit further asserts that as she was driving home, she lost consciousness, rendering it impossible to control her vehicle prior to the collision.",
"Defendant maintains she does not remember anything until after the collision, when a man approached defendant's vehicle and told her help was on the way. Thereafter, an ambulance transported defendant to Riverside Hospital. Defendant was diagnosed with syncope, or unconsciousness from an unknown cause. Defendant did not present any expert testimony in support of her summary judgment motion. {¶ 9} At the time of the accident, defendant was taking at least nine prescription medications for health conditions, including, but not limited to, high blood pressure, diabetes, and asthma. Four days prior to the accident, defendant's doctor raised her dosage for Clonidine, a blood pressure medication known to cause unconsciousness in some individuals. Less than two months after the accident, defendant underwent quadruple bypass surgery. Defendant has undergone a number of additional surgeries for a variety of conditions. {¶ 10} Although Western Reserve argued in the trial court that defendant's affidavit was insufficient to establish unconsciousness, the trial court found Western Reserve offered no evidence to rebut defendant's sworn statement that she was unconscious at the time of the collision.",
"The trial court further concluded defendant's unconsciousness was not foreseeable, as defendant had no previous episodes and thus had no reason to anticipate a blackout, despite her numerous medications. {¶ 11} On appeal, Western Reserve contends a genuine issue of material fact precludes the trial court's determination that defendant was unconscious immediately prior to the collision. Western Reserve points to defendant's deposition testimony, where defendant stated that at the point of impact, she recalls seeing a white van near the passenger side of her vehicle. In her deposition, defendant claims she lost consciousness at some point on the highway, briefly came to, noticed the van, attempted to turn the wheel, collided with the van and became unconscious again. Western Reserve contends that evidence is sufficient to create a jury question about when defendant lost consciousness and whether that unconsciousness actually rendered control of her vehicle impossible.",
"{¶ 12} In Ciccarelli, the court considered whether the defendant lost consciousness before or after she pressed the accelerator in her car, causing her car to travel across five lanes of traffic; it concluded a genuine issue of fact precluded summary judgment. Ciccarelli, supra. Although the defendant's doctor submitted an affidavit stating that defendant suffered an unforeseen blackout, the court recognized the doctor had no way of knowing when the alleged blackout occurred. The only person with such knowledge was the defendant, and her deposition testimony revealed she did not remember what happened.",
"Moreover, her testimony indicated she may have left skid marks, \"which would tend to show that she was conscious enough to hit the brakes. * * * It [was] also clear that [defendant] hit her head during the collision, which could explain how and when she became unconscious.\" Id. at ¶ 40. In accordance with the dictates set forth in Lehman and Roman, supra, the court concluded summary judgment was inappropriate. {¶ 13} Similarly, in Radsick v. Estate of Kuester (July 10, 1998), Carroll App. No. 686, the court reversed summary judgment granted to the defendant.",
"Although the defendant alleged the deceased driver suffered an unforeseen heart attack that caused her to lose control of her vehicle, evidence indicated the deceased driver failed to properly negotiate an upcoming curve in the road. The court held that when the evidence presented was viewed in a light most favorable to the non-moving party, reasonable minds could conclude the defendant lost control of her vehicle by failing to properly negotiate a curve, as opposed to suffering a heart attack. Id. Accordingly, the court found summary judgment was inappropriate. Id. ; Castle v. Seelig (July 9, 1993), Huron App. No.",
"H-92-059 (reversing a summary judgment where defendant's deposition testimony created a question of fact as to whether he lost consciousness or simply could not recall the details of the collision). {¶ 14} Without question, some appellate courts have concluded the sudden medical emergency defense may be decided as a matter of law. See, generally, Jenkins v. Morgan (1988), 57 Ohio App.3d 40 (upholding directed verdict where plaintiff failed to present substantial evidence to contradict the defendant's evidence that nauseous feeling, heart attack, and collision occurred within seconds of each other); Vinci v.Heimbach (Dec. 17, 1998), Cuyahoga App. No. 73440 (upholding summary judgment where defendant had an epileptic seizure and was being treated for the condition, and the record contained \"no evidence of any lapse of time\" between the seizure and collision).",
"Fitas v. Estate of Baldridge (1995), 102 Ohio App.3d 365 (upholding summary judgment where defendant suffered a fatal heart attack). {¶ 15} Here, however, defendant's own testimony, when construed in a light most favorable to Western Reserve, creates a question of fact about when defendant's unconsciousness allegedly occurred. Ciccarelli, supra. Specifically, defendant testified in her deposition that she lost consciousness at some point on the highway, briefly came to, noticed the van, attempted to turn the wheel, collided with the van and again became unconscious. Defendant's testimony thus suggests, through her awareness of the van's presence near her car and her attempt to avoid colliding with it, that defendant was conscious.",
"Ciccarelli, supra. As a result, a genuine issue of material fact exists for trial in determining whether defendant was unconscious and if so, when she became unconscious.Dresher, supra. {¶ 16} Because a genuine issue of material fact exists as to whether defendant was unconscious prior to the collision, we remand this matter to the trial court for further proceedings. Should the trier of fact find defendant actually was conscious, the issue of foreseeability does not arise. Accordingly, we do not address the issue at this time. {¶ 17} Having sustained Western Reserve's single assignment of error, we reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion.",
"Judgment reversed and case remanded. Klatt and Bowman, JJ., concur. BOWMAN, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. {PRIVATE}"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3699452/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
605 So. 2d 871 (1992) Fred GANZ, etc., Petitioner, v. HZJ, INC., etc., Respondent. No. 79601. Supreme Court of Florida. October 8, 1992. *872 Robert A. Ginsburg, Dade County Atty., and Scott D. Fabricius, Asst. County Atty., Miami, for petitioner. No appearance for respondent. PER CURIAM. We review Ganz v. HZJ, Inc., 595 So. 2d 1081, 1083 (Fla. 3d DCA 1992), in which the district court certified the following question: Does the holding in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) require that entitlement to statutory attorney's fees pursuant to Section 57.105, Florida Statutes (1991) be specifically pled? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Fred Ganz is the Dade County tax collector. HZJ, Inc. sued him in his official capacity to prevent him from selling tax certificates for delinquent taxes on HZJ's real estate. The trial court found HZJ's suit "baseless," 595 So.2d at 1082, but denied Ganz's postjudgment motion for attorney's fees because of his failure to plead entitlement to the fees in his answer, as required by this Court's opinion in Downs. The district court suggested that because the fee request is made pursuant to section 57.105(1), Florida Statutes (1991),[1] an exception to the Downs pleading requirement may be appropriate. Ganz argues that all parties are on continual notice that attorney's fees may be awarded under section 57.105; thus, there is no possibility for surprise, the principal concern in Downs. It is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney's fees under section 57.105 before the case is ended. We agree with the Third District's observation in Autorico, Inc. v. Government Employees Insurance Co., 398 So. 2d 485, 487-88 (Fla. 3d DCA 1981): There is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney's fees under Section 57.105, Florida Statutes (1979). Indeed, we think it is best to presume good motives on the part of one's adversary even on what appears to be an open and shut case. It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause, and, if so, to file an appropriate motion, as here, seeking *873 an entitlement to said attorney's fees under Section 57.105, Florida Statutes (1979).[[2]] Accordingly we answer the certified question in the negative, quash the decision below, and remand for proceedings consistent with this opinion. It is so ordered. BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. McDONALD, J., dissents. NOTES [1] Section 57.105(1), Florida Statutes (1991), provides:
The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he has acted in good faith, based on the representations of his client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award prejudgment interest. [2] Section 57.105(1), Florida Statutes, has remained substantially unchanged from its enactment in 1978. Compare ch. 78-275, § 1, Laws of Fla. with § 57.105(1), Fla. Stat. (1991). | 10-30-2013 | [
"605 So. 2d 871 (1992) Fred GANZ, etc., Petitioner, v. HZJ, INC., etc., Respondent. No. 79601. Supreme Court of Florida. October 8, 1992. *872 Robert A. Ginsburg, Dade County Atty., and Scott D. Fabricius, Asst. County Atty., Miami, for petitioner. No appearance for respondent. PER CURIAM. We review Ganz v. HZJ, Inc., 595 So. 2d 1081, 1083 (Fla. 3d DCA 1992), in which the district court certified the following question: Does the holding in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) require that entitlement to statutory attorney's fees pursuant to Section 57.105, Florida Statutes (1991) be specifically pled? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Fred Ganz is the Dade County tax collector. HZJ, Inc. sued him in his official capacity to prevent him from selling tax certificates for delinquent taxes on HZJ's real estate. The trial court found HZJ's suit \"baseless,\" 595 So.2d at 1082, but denied Ganz's postjudgment motion for attorney's fees because of his failure to plead entitlement to the fees in his answer, as required by this Court's opinion in Downs. The district court suggested that because the fee request is made pursuant to section 57.105(1), Florida Statutes (1991),[1] an exception to the Downs pleading requirement may be appropriate. Ganz argues that all parties are on continual notice that attorney's fees may be awarded under section 57.105; thus, there is no possibility for surprise, the principal concern in Downs.",
"It is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney's fees under section 57.105 before the case is ended. We agree with the Third District's observation in Autorico, Inc. v. Government Employees Insurance Co., 398 So. 2d 485, 487-88 (Fla. 3d DCA 1981): There is certainly no way for a litigant to know in advance whether the adverse party will raise nothing but frivolous issues in a civil case and, therefore, to plead in good faith its entitlement to attorney's fees under Section 57.105, Florida Statutes (1979).",
"Indeed, we think it is best to presume good motives on the part of one's adversary even on what appears to be an open and shut case. It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause, and, if so, to file an appropriate motion, as here, seeking *873 an entitlement to said attorney's fees under Section 57.105, Florida Statutes (1979). [[2]] Accordingly we answer the certified question in the negative, quash the decision below, and remand for proceedings consistent with this opinion. It is so ordered. BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. McDONALD, J., dissents. NOTES [1] Section 57.105(1), Florida Statutes (1991), provides: The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he has acted in good faith, based on the representations of his client.",
"If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award prejudgment interest. [2] Section 57.105(1), Florida Statutes, has remained substantially unchanged from its enactment in 1978. Compare ch. 78-275, § 1, Laws of Fla. with § 57.105(1), Fla. Stat. (1991)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1748549/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION {¶ 1} Defendant-appellant, The JAS Group, Ltd. ("JAS"), appeals from the judgment of the Franklin County Court of Common Pleas denying JAS's motion for relief from a default judgment in favor of plaintiffs-appellees, Rebecca E. Miller and Otis E. *Page 2 Miller (collectively, "plaintiffs"). For the following reasons, we reverse the trial court's judgment and remand this matter for further proceedings. {¶ 2} This action arises out of injuries that Rebecca Miller sustained on September 13, 2000, when she fell in the threshold of a unit that plaintiffs rented in a self-storage facility (the "facility") in Whitehall, Ohio. On September 12, 2002, plaintiffs filed their complaint against seven named defendants, including JAS, and various Doe defendants in the Franklin County Court of Common Pleas, asserting claims of negligence, negligence per se, gross negligence, nuisance, strict liability, and loss of consortium. Plaintiffs alleged that the defendants were liable for failing to properly design, construct, inspect, operate, and/or maintain the facility in a reasonably safe condition and in compliance with the Ohio Basic Building Code ("OBBC"). {¶ 3} In their only allegations specific to JAS, plaintiffs alleged that JAS contracted with Golden Giant, Inc., a co-defendant, for the construction of the facility, which JAS formerly owned. JAS admits that it contracted for the construction of the facility in 1995 and operated the facility until July 1998, when it sold the facility to Storage USA, Inc., a co-defendant in this action. {¶ 4} The clerk of court's initial attempt to serve JAS with plaintiffs' complaint failed, and the certified mail envelope was returned to the clerk, marked "Undeliverable As Addressed Forwarding Order Expired." Plaintiffs subsequently requested service on JAS by certified mail at a different address, and service was completed on January 9, 2003. {¶ 5} On March 13, 2003, plaintiffs filed a motion for default judgment against JAS. The trial court granted plaintiffs' motion as to liability on April 21, 2003, and *Page 3 referred the matter to a magistrate for a damages hearing. JAS was not served with plaintiffs' motion for default judgment, the trial court's entry granting default judgment as to liability or the trial court's order of reference for a damages hearing. On July 8, 2003, at plaintiffs' request, the trial court vacated the damages hearing. {¶ 6} On February 3, 2005, having reached a settlement, plaintiffs voluntarily dismissed their claims against all defendants other than JAS and requested a damages hearing with respect to their default judgment against JAS. On February 8, 2005, the trial court issued an order of reference, rescheduling a damages hearing before a magistrate for March 23, 2005. Plaintiffs did not serve JAS with their notice of dismissal and request for a damages hearing, and the trial court did not serve JAS with its order of reference. Having no notice of either the default judgment or the damages hearing, JAS did not appear, and the magistrate conducted the damages hearing in JAS's absence. {¶ 7} On September 26, 2005, the magistrate filed her decision on damages, finding that Rebecca Miller was entitled to compensatory damages of $80,000 and that Otis Miller was entitled to compensatory damages of $10,000, for a total of $90,000 in damages against JAS. The magistrate's decision indicates that it was mailed to JAS's correct address. Despite numerous filings with respect to plaintiffs' claims against other defendants, including an amended complaint, this was the first document copied to or served on JAS in over two years. On October 20, 2005, the trial court issued a decision adopting the magistrate's decision and instructing plaintiffs to submit an appropriate judgment entry. The trial court's decision also indicates that it was mailed to JAS's correct address. On November 28, 2005, the trial court filed a judgment entry, *Page 4 journalizing the $90,000 default judgment against JAS, but it did not serve JAS with the judgment entry. {¶ 8} On August 31, 2006, JAS filed a motion for relief from the default judgment pursuant to Civ.R. 60(B)(1). JAS argued that, upon receipt of plaintiffs' complaint and upon advice of legal counsel, it immediately faxed a copy of the complaint to its insurance agent for submission to JAS's liability insurer. JAS claimed that its insurance company never informed JAS that it was not representing JAS to defend plaintiffs' claims. Additionally, JAS argued that it only became aware of the default judgment in July 2006 upon receipt of a Title Commitment relating to a property it was attempting to sell. Plaintiffs opposed JAS's motion for relief from judgment, arguing that JAS failed to satisfy the requirements for Civ.R. 60(B) relief. {¶ 9} On June 29, 2007, the trial court issued a decision and entry denying JAS's motion for relief from judgment, but did not serve its decision and entry on JAS. On August 2, 2007, the trial court issued an amended decision and entry, identical in substance to its June 29, 2007 decision, and sent a copy to JAS's counsel. JAS filed a timely notice of appeal from the denial of its motion for relief from judgment. {¶ 10} JAS presents two assignments of error for our review: ASSIGNMENT OF ERROR #1: The Trial Court abused [its] discretion in holding that [JAS] is not entitled to relief from [j]udgment where the uncontroverted evidence demonstrates that a copy of the Complaint was delivered to [JAS's] insurance agent in a timely fashion to notify [its] insurance company to provide a defense under [its] insurance policy in effect at the time of [plaintiff's] alleged injury. *Page 5 ASSIGNMENT OF ERROR #2: The Trial Court abused [its] discretion in holding that [JAS] failed to present any evidence or argument as to any meritorious claims or defenses in [its Civ.R. 60(B)] Motion for Relief from Judgment. Because both assignments of error relate to the trial court's denial of JAS's motion for relief from judgment, we address them together. {¶ 11} A Civ.R. 60(B) motion for relief from judgment is addressed to the sound discretion of the trial court, and we will not disturb the trial court's ruling absent an abuse of discretion. Griffey v.Rajan (1987), 33 Ohio St.3d 75, 77; Moore v. Emmanuel Family TrainingCtr, Inc. (1985), 18 Ohio St.3d 64, 66. An abuse of discretion involves more than an error of law or judgment; it connotes an attitude that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 12} Pursuant to Civ.R. 55(B), a trial court may set aside a default judgment in accordance with Civ.R. 60(B). As relevant here, Civ.R. 60(B) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * * To prevail on a motion for relief from judgment, the movant must demonstrate that: * * * (1) [T]he party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. *Page 6 GTE Automatic Elec, Inc. v. ARC Industries, Inc. (1976),47 Ohio St.2d 146, paragraph two of the syllabus. {¶ 13} The three GTE requirements are independent, and a court may not grant Civ.R. 60(B) relief if the movant fails to satisfy any one of them. Id. at 151; Strack v. Pelton, 70 Ohio St.3d 172, 174,1994-Ohio-107. However, the law favors disposition of cases by a trial on the merits, and courts should resolve doubt, if any, as to the establishment of a meritorious defense or a ground for relief in favor of the movant. Coover Constr. Co., Inc. v. Johnson (Aug. 24, 1982), Franklin App. No. 82AP-305, citing Colley v. Bazell (1980),64 Ohio St.2d 243. The Supreme Court of Ohio has also observed that "`[m]atters involving large sums should not be determined by default judgments if it can reasonably be avoided.'" Colley at 249, fn. 5, quoting Tozer v.Charles A. Krause Milling Co. (C.A.3, 1951), 189 F.2d 242, 245. Bearing in mind these principles and the requirements for Civ.R. 60(B) relief, we turn to the trial court's decision denying JAS's motion. {¶ 14} In its decision, the trial court discussed each of the threeGTE requirements in turn. The court first found that JAS submitted evidence that arguably satisfied the excusable neglect standard. Specifically, the court noted evidence that JAS submitted plaintiffs' complaint to its insurance agent upon learning of this action. However, the court questioned the reasonableness of JAS's subsequent failure to follow up with its insurance provider as to the status of the case over the following two years. The court also questioned the timeliness of JAS's motion, considering indications in the record that the magistrate's decision on damages and the trial court's decision adopting the magistrate's decision were served on JAS approximately ten months before JAS *Page 7 moved for relief. Ultimately, however, the court did not determine whether JAS established excusable neglect or whether it filed its motion within a reasonable time. Rather, it found that, even assuming establishment of excusable neglect and timeliness, JAS failed to assert a meritorious defense to plaintiffs' claims. Specifically, the trial court stated: * * * [A]t no point does [JAS] express how it would defend itself against [plaintiffs'] claims. [JAS] offers no evidence as to why the judgment was erroneous beyond the fact that it was not present or represented, and [JAS's] suggestions of unfairness offer no proof as to why the judgment would be different if relief was granted. (Emphasis sic.) {¶ 15} Because the trial court denied JAS's motion for relief from judgment based solely on its finding that JAS failed to present a meritorious defense, we begin our analysis with the first prong of theGTE test. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious defense, not to prevail on the merits thereof.Moore at 67. "[A] proffered defense is meritorious if it is not a sham and when, if true, it states a defense in part, or in whole, to the claims for relief set forth in the complaint." Amzee Corp. v. ComericaBank-Midwest, Franklin App. No. 01AP-465, 2002-Ohio-3084, ¶ 20, citingThe Pool Man, Inc. v. Rea (Oct. 17, 1995), Franklin App. No. 95APG04-438. {¶ 16} Neither a general denial in an answer nor a conclusory statement that the movant has a meritorious claim or defense to present is sufficient to satisfy the first prong of the GTE test. NewarkOrthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122; Jordan v.Sitosky (Jan. 24, 1991), Cuyahoga App. No. 57913. Rather, "the movant must allege supporting operative facts with enough specificity to allow the court to decide that the movant has a defense he could have successfully argued at trial." *Page 8 Mattingly v. Deveaux, Franklin App. No. 03AP-793, 2004-Ohio-2506, ¶ 10, citing Elyria Twp. Bd. of Trustees v. Kerstetter (1993),91 Ohio App.3d 599, 602. This standard does not impute an evidentiary burden upon the movant beyond requiring that the material submitted sets forth operative facts of the defense. Billiter v. Winship (Sept. 28, 1993), Franklin App. No. 93AP-176. {¶ 17} As the trial court correctly noted, each of plaintiffs' claims for relief was factually premised on allegations that the defendants failed to properly design, construct, inspect, operate, and/or maintain the self-storage facility in a reasonably safe condition and/or in compliance with the OBBC. In support of its motion for relief from judgment, JAS claimed that it did not design or construct the facility and was not responsible for inspecting the facility's construction. JAS presented evidence that, having sold the facility to Storage USA, Inc. in July 1998, it had not owned, operated or maintained the facility for more than two years prior to Rebecca Miller's fall. In affidavits from its two members, John W. Messmore and Scott Blackwell, JAS also offered evidence that the facility's design was a "uniform design used throughout the United States" and that the system used to construct the facility was "a uniform, universal nationwide system." (Blackwell Affidavit, ¶ 4; Messmore Affidavit, ¶ 3.) Furthermore, JAS claimed that Storage USA was responsible for the facility's operation and maintenance at the time of Rebecca Miller's accident; Golden Giant, Inc., as general contractor, built the facility; and the City of Whitehall hired Benatech Associates to inspect the facility and to issue appropriate permits. {¶ 18} Upon review of the material submitted in support of JAS's motion, we find that the trial court's summary conclusion that JAS failed to express how it would defend *Page 9 against plaintiffs' claims constitutes an abuse of discretion. In making that conclusion, the trial court ignored JAS's factual contentions regarding its lack of involvement in the design, construction, and inspection of the facility, its identification of the parties responsible for each of those activities, and its sale of the facility to Storage USA more than two years prior to Rebecca Miller's fall. Such facts speak directly to plaintiffs' first claim for relief, which alleges negligence arising out of the design, construction, inspection, and/or maintenance of the facility in a reasonably safe condition. {¶ 19} Plaintiffs aptly recognize that a Civ.R. 60(B) movant must do more than make bare allegations that it is entitled to relief and a meritorious defense to present. See Bright v. Family Medicine Found.,Inc., Franklin App. No. 05AP-835, 2006-Ohio-5037, ¶ 22 (affidavit from movant's counsel stating his belief that movant had several meritorious defenses held insufficient to satisfy first GTE requirement). Plaintiffs also correctly argue that neither JAS's motion nor affidavits contradict plaintiffs' allegation that the facility did not comply with the OBBC's requirements regarding thresholds. However, we reject both of plaintiffs' arguments as bases for denying JAS's motion for relief from judgment. {¶ 20} Here, JAS does not rely on a conclusory statement that it has a meritorious defense to present should relief be granted, nor does JAS rely on a blanket denial of liability, as in an answer containing a general denial. Rather, JAS's memorandum and affidavits set forth operative facts that are reasonably related to the circumstances and claims for relief set forth in plaintiffs' complaint and that, if proven, could defeat one or more of plaintiffs' claims. See AmzeeCorp. at ¶ 21. Additionally, the absence of facts disputing plaintiffs' claim of an OBBC violation is not fatal to JAS's *Page 10 motion. First, contrary to plaintiffs' allegations, a violation of the OBBC does not constitute negligence per se. Chambers v. St. Mary'sSchool (1998), 82 Ohio St.3d 563, 568. Moreover, even if the facts set forth by JAS fail to state a defense to those claims specifically stemming from an alleged OBBC violation, a movant need not demonstrate complete meritorious defenses to all of the plaintiffs' claims to be entitled to relief from judgment; "it suffices that a meritorious defense, either partial or complete, is raised." (Emphasis added.)Amzee Corp. at ¶ 21. {¶ 21} In Syphard v. Vrable, 141 Ohio App.3d 460, 464, 2001-Ohio-3229, the Seventh District Court of Appeals found that a movant for Civ.R. 60(B) relief satisfied the first prong of the GTE test where she alleged that she could defend a judgment as to the amount of damages, even though she failed to allege a defense as to the validity of the judgment in its entirety. Likewise, in Oberkonz v. Gosha, Franklin App. No. 02AP-237, 2002-Ohio-5572, this court found the first GTE requirement satisfied where the movant alleged a defense as to the amount of the plaintiff's damages in a negligence action, although she did not allege a defense as to liability. Similarly, the fact that JAS set forth no facts to contradict plaintiffs' assertion of an OBBC violation does not evidence a failure to demonstrate a meritorious defense sufficient to warrant Civ.R. 60(B) relief where JAS alleged facts supporting a defense to other claims. {¶ 22} Here, JAS alleged supporting facts with enough specificity to establish a defense it could have successfully argued at trial with respect to one or more of plaintiffs' claims for relief. Accordingly, we find that the trial court abused its discretion in summarily determining that JAS failed to demonstrate a meritorious defense and in *Page 11 denying JAS's motion for relief from judgment on that basis. Therefore, we sustain JAS's second assignment of error. {¶ 23} Having determined that JAS did not establish a meritorious defense, the trial court did not decide whether JAS satisfied the remaining GTE requirements, and we do not decide those issues for the first time on appeal. See Frankart v. Frankart, Seneca App. No. 13-02-39, 2003-Ohio-1662, ¶ 15 (because the trial court did not address the other requirements of Civ.R. 60[B], "[o]ur review of this judgment * * * is limited to whether the trial court abused its discretion in determining that [the movant] had not demonstrated that she was entitled to relief under Civ.R. 60[B][1]"). Because JAS's first assignment of error concerns the existence of excusable neglect, which the trial court did not decide, we overrule JAS's first assignment of error as moot. {¶ 24} Having determined that the trial court abused its discretion in denying JAS's motion for relief from judgment for failure to establish a meritorious defense, we overrule JAS's first assignment of error as moot, sustain JAS's second assignment of error, and reverse the judgment of the Franklin County Court of Common Pleas. While we express no opinion on whether JAS should ultimately prevail on its Civ.R. 60(B) motion, we remand this matter to the trial court to decide JAS's motion after determining whether JAS has satisfied the remaining requirements for the requested relief. Judgment reversed and cause remanded with instructions. BROWN and DESHLER, JJ., concur. DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. *Page 1 | 07-06-2016 | [
"OPINION {¶ 1} Defendant-appellant, The JAS Group, Ltd. (\"JAS\"), appeals from the judgment of the Franklin County Court of Common Pleas denying JAS's motion for relief from a default judgment in favor of plaintiffs-appellees, Rebecca E. Miller and Otis E. *Page 2 Miller (collectively, \"plaintiffs\"). For the following reasons, we reverse the trial court's judgment and remand this matter for further proceedings.",
"{¶ 2} This action arises out of injuries that Rebecca Miller sustained on September 13, 2000, when she fell in the threshold of a unit that plaintiffs rented in a self-storage facility (the \"facility\") in Whitehall, Ohio. On September 12, 2002, plaintiffs filed their complaint against seven named defendants, including JAS, and various Doe defendants in the Franklin County Court of Common Pleas, asserting claims of negligence, negligence per se, gross negligence, nuisance, strict liability, and loss of consortium. Plaintiffs alleged that the defendants were liable for failing to properly design, construct, inspect, operate, and/or maintain the facility in a reasonably safe condition and in compliance with the Ohio Basic Building Code (\"OBBC\"). {¶ 3} In their only allegations specific to JAS, plaintiffs alleged that JAS contracted with Golden Giant, Inc., a co-defendant, for the construction of the facility, which JAS formerly owned.",
"JAS admits that it contracted for the construction of the facility in 1995 and operated the facility until July 1998, when it sold the facility to Storage USA, Inc., a co-defendant in this action. {¶ 4} The clerk of court's initial attempt to serve JAS with plaintiffs' complaint failed, and the certified mail envelope was returned to the clerk, marked \"Undeliverable As Addressed Forwarding Order Expired.\" Plaintiffs subsequently requested service on JAS by certified mail at a different address, and service was completed on January 9, 2003. {¶ 5} On March 13, 2003, plaintiffs filed a motion for default judgment against JAS. The trial court granted plaintiffs' motion as to liability on April 21, 2003, and *Page 3 referred the matter to a magistrate for a damages hearing. JAS was not served with plaintiffs' motion for default judgment, the trial court's entry granting default judgment as to liability or the trial court's order of reference for a damages hearing.",
"On July 8, 2003, at plaintiffs' request, the trial court vacated the damages hearing. {¶ 6} On February 3, 2005, having reached a settlement, plaintiffs voluntarily dismissed their claims against all defendants other than JAS and requested a damages hearing with respect to their default judgment against JAS. On February 8, 2005, the trial court issued an order of reference, rescheduling a damages hearing before a magistrate for March 23, 2005. Plaintiffs did not serve JAS with their notice of dismissal and request for a damages hearing, and the trial court did not serve JAS with its order of reference. Having no notice of either the default judgment or the damages hearing, JAS did not appear, and the magistrate conducted the damages hearing in JAS's absence.",
"{¶ 7} On September 26, 2005, the magistrate filed her decision on damages, finding that Rebecca Miller was entitled to compensatory damages of $80,000 and that Otis Miller was entitled to compensatory damages of $10,000, for a total of $90,000 in damages against JAS. The magistrate's decision indicates that it was mailed to JAS's correct address. Despite numerous filings with respect to plaintiffs' claims against other defendants, including an amended complaint, this was the first document copied to or served on JAS in over two years. On October 20, 2005, the trial court issued a decision adopting the magistrate's decision and instructing plaintiffs to submit an appropriate judgment entry. The trial court's decision also indicates that it was mailed to JAS's correct address.",
"On November 28, 2005, the trial court filed a judgment entry, *Page 4 journalizing the $90,000 default judgment against JAS, but it did not serve JAS with the judgment entry. {¶ 8} On August 31, 2006, JAS filed a motion for relief from the default judgment pursuant to Civ.R. 60(B)(1). JAS argued that, upon receipt of plaintiffs' complaint and upon advice of legal counsel, it immediately faxed a copy of the complaint to its insurance agent for submission to JAS's liability insurer. JAS claimed that its insurance company never informed JAS that it was not representing JAS to defend plaintiffs' claims. Additionally, JAS argued that it only became aware of the default judgment in July 2006 upon receipt of a Title Commitment relating to a property it was attempting to sell. Plaintiffs opposed JAS's motion for relief from judgment, arguing that JAS failed to satisfy the requirements for Civ.R. 60(B) relief. {¶ 9} On June 29, 2007, the trial court issued a decision and entry denying JAS's motion for relief from judgment, but did not serve its decision and entry on JAS. On August 2, 2007, the trial court issued an amended decision and entry, identical in substance to its June 29, 2007 decision, and sent a copy to JAS's counsel. JAS filed a timely notice of appeal from the denial of its motion for relief from judgment.",
"{¶ 10} JAS presents two assignments of error for our review: ASSIGNMENT OF ERROR #1: The Trial Court abused [its] discretion in holding that [JAS] is not entitled to relief from [j]udgment where the uncontroverted evidence demonstrates that a copy of the Complaint was delivered to [JAS's] insurance agent in a timely fashion to notify [its] insurance company to provide a defense under [its] insurance policy in effect at the time of [plaintiff's] alleged injury. *Page 5 ASSIGNMENT OF ERROR #2: The Trial Court abused [its] discretion in holding that [JAS] failed to present any evidence or argument as to any meritorious claims or defenses in [its Civ.R. 60(B)] Motion for Relief from Judgment. Because both assignments of error relate to the trial court's denial of JAS's motion for relief from judgment, we address them together. {¶ 11} A Civ.R. 60(B) motion for relief from judgment is addressed to the sound discretion of the trial court, and we will not disturb the trial court's ruling absent an abuse of discretion. Griffey v.Rajan (1987), 33 Ohio St.3d 75, 77; Moore v. Emmanuel Family TrainingCtr, Inc. (1985), 18 Ohio St.3d 64, 66.",
"An abuse of discretion involves more than an error of law or judgment; it connotes an attitude that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 12} Pursuant to Civ.R. 55(B), a trial court may set aside a default judgment in accordance with Civ.R. 60(B). As relevant here, Civ.R. 60(B) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * * To prevail on a motion for relief from judgment, the movant must demonstrate that: * * * (1) [T]he party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R.",
"60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. *Page 6 GTE Automatic Elec, Inc. v. ARC Industries, Inc. (1976),47 Ohio St.2d 146, paragraph two of the syllabus. {¶ 13} The three GTE requirements are independent, and a court may not grant Civ.R. 60(B) relief if the movant fails to satisfy any one of them. Id.",
"at 151; Strack v. Pelton, 70 Ohio St.3d 172, 174,1994-Ohio-107. However, the law favors disposition of cases by a trial on the merits, and courts should resolve doubt, if any, as to the establishment of a meritorious defense or a ground for relief in favor of the movant. Coover Constr. Co., Inc. v. Johnson (Aug. 24, 1982), Franklin App. No. 82AP-305, citing Colley v. Bazell (1980),64 Ohio St.2d 243. The Supreme Court of Ohio has also observed that \"`[m]atters involving large sums should not be determined by default judgments if it can reasonably be avoided.'\" Colley at 249, fn. 5, quoting Tozer v.Charles A. Krause Milling Co. (C.A.3, 1951), 189 F.2d 242, 245.",
"Bearing in mind these principles and the requirements for Civ.R. 60(B) relief, we turn to the trial court's decision denying JAS's motion. {¶ 14} In its decision, the trial court discussed each of the threeGTE requirements in turn. The court first found that JAS submitted evidence that arguably satisfied the excusable neglect standard. Specifically, the court noted evidence that JAS submitted plaintiffs' complaint to its insurance agent upon learning of this action. However, the court questioned the reasonableness of JAS's subsequent failure to follow up with its insurance provider as to the status of the case over the following two years. The court also questioned the timeliness of JAS's motion, considering indications in the record that the magistrate's decision on damages and the trial court's decision adopting the magistrate's decision were served on JAS approximately ten months before JAS *Page 7 moved for relief. Ultimately, however, the court did not determine whether JAS established excusable neglect or whether it filed its motion within a reasonable time.",
"Rather, it found that, even assuming establishment of excusable neglect and timeliness, JAS failed to assert a meritorious defense to plaintiffs' claims. Specifically, the trial court stated: * * * [A]t no point does [JAS] express how it would defend itself against [plaintiffs'] claims. [JAS] offers no evidence as to why the judgment was erroneous beyond the fact that it was not present or represented, and [JAS's] suggestions of unfairness offer no proof as to why the judgment would be different if relief was granted. (Emphasis sic.) {¶ 15} Because the trial court denied JAS's motion for relief from judgment based solely on its finding that JAS failed to present a meritorious defense, we begin our analysis with the first prong of theGTE test. Under Civ.R.",
"60(B), a movant's burden is only to allege a meritorious defense, not to prevail on the merits thereof.Moore at 67. \"[A] proffered defense is meritorious if it is not a sham and when, if true, it states a defense in part, or in whole, to the claims for relief set forth in the complaint.\" Amzee Corp. v. ComericaBank-Midwest, Franklin App. No. 01AP-465, 2002-Ohio-3084, ¶ 20, citingThe Pool Man, Inc. v. Rea (Oct. 17, 1995), Franklin App. No. 95APG04-438. {¶ 16} Neither a general denial in an answer nor a conclusory statement that the movant has a meritorious claim or defense to present is sufficient to satisfy the first prong of the GTE test. NewarkOrthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122; Jordan v.Sitosky (Jan. 24, 1991), Cuyahoga App. No. 57913. Rather, \"the movant must allege supporting operative facts with enough specificity to allow the court to decide that the movant has a defense he could have successfully argued at trial.\"",
"*Page 8 Mattingly v. Deveaux, Franklin App. No. 03AP-793, 2004-Ohio-2506, ¶ 10, citing Elyria Twp. Bd. of Trustees v. Kerstetter (1993),91 Ohio App.3d 599, 602. This standard does not impute an evidentiary burden upon the movant beyond requiring that the material submitted sets forth operative facts of the defense. Billiter v. Winship (Sept. 28, 1993), Franklin App. No. 93AP-176. {¶ 17} As the trial court correctly noted, each of plaintiffs' claims for relief was factually premised on allegations that the defendants failed to properly design, construct, inspect, operate, and/or maintain the self-storage facility in a reasonably safe condition and/or in compliance with the OBBC.",
"In support of its motion for relief from judgment, JAS claimed that it did not design or construct the facility and was not responsible for inspecting the facility's construction. JAS presented evidence that, having sold the facility to Storage USA, Inc. in July 1998, it had not owned, operated or maintained the facility for more than two years prior to Rebecca Miller's fall. In affidavits from its two members, John W. Messmore and Scott Blackwell, JAS also offered evidence that the facility's design was a \"uniform design used throughout the United States\" and that the system used to construct the facility was \"a uniform, universal nationwide system.\" (Blackwell Affidavit, ¶ 4; Messmore Affidavit, ¶ 3.) Furthermore, JAS claimed that Storage USA was responsible for the facility's operation and maintenance at the time of Rebecca Miller's accident; Golden Giant, Inc., as general contractor, built the facility; and the City of Whitehall hired Benatech Associates to inspect the facility and to issue appropriate permits. {¶ 18} Upon review of the material submitted in support of JAS's motion, we find that the trial court's summary conclusion that JAS failed to express how it would defend *Page 9 against plaintiffs' claims constitutes an abuse of discretion. In making that conclusion, the trial court ignored JAS's factual contentions regarding its lack of involvement in the design, construction, and inspection of the facility, its identification of the parties responsible for each of those activities, and its sale of the facility to Storage USA more than two years prior to Rebecca Miller's fall.",
"Such facts speak directly to plaintiffs' first claim for relief, which alleges negligence arising out of the design, construction, inspection, and/or maintenance of the facility in a reasonably safe condition. {¶ 19} Plaintiffs aptly recognize that a Civ.R. 60(B) movant must do more than make bare allegations that it is entitled to relief and a meritorious defense to present. See Bright v. Family Medicine Found.,Inc., Franklin App. No. 05AP-835, 2006-Ohio-5037, ¶ 22 (affidavit from movant's counsel stating his belief that movant had several meritorious defenses held insufficient to satisfy first GTE requirement). Plaintiffs also correctly argue that neither JAS's motion nor affidavits contradict plaintiffs' allegation that the facility did not comply with the OBBC's requirements regarding thresholds. However, we reject both of plaintiffs' arguments as bases for denying JAS's motion for relief from judgment. {¶ 20} Here, JAS does not rely on a conclusory statement that it has a meritorious defense to present should relief be granted, nor does JAS rely on a blanket denial of liability, as in an answer containing a general denial. Rather, JAS's memorandum and affidavits set forth operative facts that are reasonably related to the circumstances and claims for relief set forth in plaintiffs' complaint and that, if proven, could defeat one or more of plaintiffs' claims. See AmzeeCorp.",
"at ¶ 21. Additionally, the absence of facts disputing plaintiffs' claim of an OBBC violation is not fatal to JAS's *Page 10 motion. First, contrary to plaintiffs' allegations, a violation of the OBBC does not constitute negligence per se. Chambers v. St. Mary'sSchool (1998), 82 Ohio St.3d 563, 568. Moreover, even if the facts set forth by JAS fail to state a defense to those claims specifically stemming from an alleged OBBC violation, a movant need not demonstrate complete meritorious defenses to all of the plaintiffs' claims to be entitled to relief from judgment; \"it suffices that a meritorious defense, either partial or complete, is raised.\"",
"(Emphasis added. )Amzee Corp. at ¶ 21. {¶ 21} In Syphard v. Vrable, 141 Ohio App.3d 460, 464, 2001-Ohio-3229, the Seventh District Court of Appeals found that a movant for Civ.R. 60(B) relief satisfied the first prong of the GTE test where she alleged that she could defend a judgment as to the amount of damages, even though she failed to allege a defense as to the validity of the judgment in its entirety. Likewise, in Oberkonz v. Gosha, Franklin App.",
"No. 02AP-237, 2002-Ohio-5572, this court found the first GTE requirement satisfied where the movant alleged a defense as to the amount of the plaintiff's damages in a negligence action, although she did not allege a defense as to liability. Similarly, the fact that JAS set forth no facts to contradict plaintiffs' assertion of an OBBC violation does not evidence a failure to demonstrate a meritorious defense sufficient to warrant Civ.R. 60(B) relief where JAS alleged facts supporting a defense to other claims. {¶ 22} Here, JAS alleged supporting facts with enough specificity to establish a defense it could have successfully argued at trial with respect to one or more of plaintiffs' claims for relief.",
"Accordingly, we find that the trial court abused its discretion in summarily determining that JAS failed to demonstrate a meritorious defense and in *Page 11 denying JAS's motion for relief from judgment on that basis. Therefore, we sustain JAS's second assignment of error. {¶ 23} Having determined that JAS did not establish a meritorious defense, the trial court did not decide whether JAS satisfied the remaining GTE requirements, and we do not decide those issues for the first time on appeal.",
"See Frankart v. Frankart, Seneca App. No. 13-02-39, 2003-Ohio-1662, ¶ 15 (because the trial court did not address the other requirements of Civ.R. 60[B], \"[o]ur review of this judgment * * * is limited to whether the trial court abused its discretion in determining that [the movant] had not demonstrated that she was entitled to relief under Civ.R. 60[B][1]\"). Because JAS's first assignment of error concerns the existence of excusable neglect, which the trial court did not decide, we overrule JAS's first assignment of error as moot. {¶ 24} Having determined that the trial court abused its discretion in denying JAS's motion for relief from judgment for failure to establish a meritorious defense, we overrule JAS's first assignment of error as moot, sustain JAS's second assignment of error, and reverse the judgment of the Franklin County Court of Common Pleas. While we express no opinion on whether JAS should ultimately prevail on its Civ.R.",
"60(B) motion, we remand this matter to the trial court to decide JAS's motion after determining whether JAS has satisfied the remaining requirements for the requested relief. Judgment reversed and cause remanded with instructions. BROWN and DESHLER, JJ., concur. DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. *Page 1"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3764818/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1549272
Decision Date: 11/23/15 Archive Date: 11/25/15
DOCKET NO. 11-13 626 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to an increased rate of payment for nonservice-connected pension benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A.M. Clark, Counsel
INTRODUCTION
The Veteran served on active duty from November 1974 to December 1980.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania which reduced the Veteran's nonservice-connected pension benefits to a rate of $339 per month. The St. Petersburg, Florida RO currently has jurisdiction over the Veteran's VA claims folder.
The record reflects, as detailed below, that the Veteran's rate of payment of nonservice-connected pension benefits has been revised on multiple occasions since the March 2010 decision. The Board has reviewed this case to determine whether any increase in the amount of payment of such benefits was warranted at any time during the pendency of this case.
The Board notes that correspondence from the Veteran appears to dispute overpayments created with changes in his income. However, it is noted that in a February 2011 decision (located in the Veteran's Virtual VA claims file), the Committee on Waiver and Compromises granted a waiver with respect to a debt of $5337.
Additionally, a May 2011 decision granted a waiver with respect to a $69 debt. See decision in VBMS. These two decisions appear to resolve any dispute the Veteran has raised with respect to repayment of excessive non-service connected pension he was paid. As such, a new claim regarding these issues will not be referred at this time. If the Veteran feels any outstanding claims regarding overpayments have been raised by the record he is asked to notify the VA.
The decision below addresses the only appealed issue of record; whether the Veteran is entitled to an increased rate for his non-service connected pension.
FINDING OF FACT
The Veteran's countable income is in excess of that which would permit a higher rate of payment of nonservice-connected pension benefits at any time during the pendency of this case.
CONCLUSION OF LAW
The criteria for an increased rate of payment of nonservice-connected pension benefits are not met. 38 U.S.C.A. §§ 1503, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.260, 3.261, 3.262, 3.271, 3.272 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Nonservice-connected Pension
Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice-connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct. In this case, the Veteran's basic eligibility for nonservice-connected pension benefits is not in dispute as he has been found eligible for such benefits. Rather, the dispute in this case is in regard to the rate of payment of these benefits.
Under the law, pension benefits are paid at the maximum annual pension rate (MAPR) reduced by the amount of annual income received by the veteran. 38 U.S.C.A. § 1521(b); 38 C.F.R. §§ 3.3(a)(3), 3.23(a), (b), (d)(4).
In determining countable annual income for improved pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a).
The types of income which are excluded from income for VA pension purposes includes welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; casualty loss reimbursement; profit from the sale of property; joint accounts; medical expenses; expenses of last illnesses, burials, and just debts; educational expenses; a portion of the beneficiary's children's income; Domestic Volunteer Service Act Programs payments; distributions of funds under 38 U.S.C. § 1718; survivor benefit annuities; Agent Orange settlement payments; restitution to individuals of Japanese ancestry; cash surrender value of life insurance policies; income received by American Indian beneficiaries from trust or restricted lands; Radiation Exposure Compensation Act payments; and Alaska Native Claims Settlement Act payments. 38 C.F.R. § 3.272 (2015).
Exclusions from countable income may include unreimbursed medical expenses to the extent that they are in excess of five percent of the applicable maximum annual pension rate. 38 C.F.R. § 3.272(g). Social Security Administration (SSA) disability and survivor benefits are not excludable from countable income, but welfare benefits, such as supplemental security income (SSI), are excludable from countable income for purposes of improved pension. See 38 C.F.R. § 3.272; VA ADJUDICATION PROCEDURE MANUAL (M21-1), Part V.iii.1.B.2.g.
The MAPRs payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21 (2015).
In this case, the Veteran was found entitled to nonservice-connected pension benefits effective from November 1, 2008. Effective December 1, 2007, the MAPR for nonservice-connected pension benefits for unmarried veterans with no dependents (as in the case here) was $11,181. As of December 1, 2008, the MAPR was $11,830, the rate remained the same effective December 1, 2009. The Veteran indicated in an August 2010 statement that he was not disputing the amount awarded. As such, the Board will not evaluate the rate of payment following this time period. Moreover, in his April 2011 substantive appeal the Veteran reiterated that the purpose of his appeal was not to question the amount of his deduction. Rather, he stated he was disagreeing with the method of repayment of his overpayment. As noted in the introduction above, the overpayments have since been waived, and are not before the Board at this time.
In this case, the worksheets showing the calculation of the Veteran's rate of nonservice-connected pension benefits all accurately noted the correct MAPR for that period. Beginning October 14, 2008, it was determined that the Veteran's countable annual income was $7757, compared to the applicable MAPR of $11,181 and he was entitled to nonservice-connected pension benefits at the rate of $285 per month. Beginning December 1, 2008, it was determined that his annual income remained at $7757, compared to the applicable MAPR of $11,830, so he was entitled to a monthly nonservice-connected pension benefit of $339.
Beginning August 1, 2009, the maximum annual pension rate for non-service connected pension benefits for a veteran with no dependents remained at $11,830. However, it was noted that his annual income had increased to $7852. This resulted in a deduction to $331 per month for his nonservice-connected pension benefit. Beginning November 1, 2009, the maximum annual pension rate remained at $11,830. His income was noted to be $3,260. His pension benefits were calculated to be $714 per month.
The Board observes that the information used to determine the Veteran's countable income included information provided by the Veteran, as well as information from the Civil Service Retirement System. Although overpayments were found to have accrued, these have subsequently been waived. The Veteran has not identified any outstanding information regarding his countable income for these relevant periods. Further, he has not identified any error in the calculation of his countable income based upon the information provided. As noted above, the Veteran indicated in an August 2010 statement and his substantive appeal that he was in fact no disputing the amount of his pension benefit.
The Board's own calculations indicate that the amount of monthly nonservice-connected pension benefits in this case is generally consistent with being the sum of his countable income being subtracted from the applicable MAPR, and then being divided by 12. Moreover, there is a presumption of regularity of the administrative process that is only rebutted by clear and convincing evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found. Ind., 272 U.S. 1, 14-15 (1926); Schoolman v. West, 12 Vet. App. 307, 310 (1999). In this case, there is no clear and convincing evidence that VA improperly calculated the Veteran's countable income or his rate of payment of nonservice-connected pension benefits based upon the application of his countable income to the applicable MAPR.
In view of the foregoing, the Board finds that the Veteran has received the proper rate of payment of nonservice-connected pension benefits based upon the application of his undisputed amount of countable income to the relevant MAPR. As such, he has no legal entitlement to the benefit sought on appeal regarding this claim. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).
II. Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).
Congress, in enacting the statute, noted the importance of balancing the duty to assist with 'the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim.' Mason v. Principi, 16 Vet. App. 129, 132 (2002). Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable. Id. The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004).
Because the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to this claim. Nonetheless, it is noted that the March 2011 Statement of the Case (SOC) included the laws and regulations pertaining to determining the amount of non-service connected pension. The appellant has not identified any additional pertinent evidence which should have been obtained.
ORDER
Entitlement to an increased rate of payment for nonservice-connected pension benefits is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 11-23-2015 | [
"Citation Nr: 1549272 Decision Date: 11/23/15 Archive Date: 11/25/15 DOCKET NO. 11-13 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rate of payment for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to December 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania which reduced the Veteran's nonservice-connected pension benefits to a rate of $339 per month. The St. Petersburg, Florida RO currently has jurisdiction over the Veteran's VA claims folder.",
"The record reflects, as detailed below, that the Veteran's rate of payment of nonservice-connected pension benefits has been revised on multiple occasions since the March 2010 decision. The Board has reviewed this case to determine whether any increase in the amount of payment of such benefits was warranted at any time during the pendency of this case. The Board notes that correspondence from the Veteran appears to dispute overpayments created with changes in his income. However, it is noted that in a February 2011 decision (located in the Veteran's Virtual VA claims file), the Committee on Waiver and Compromises granted a waiver with respect to a debt of $5337.",
"Additionally, a May 2011 decision granted a waiver with respect to a $69 debt. See decision in VBMS. These two decisions appear to resolve any dispute the Veteran has raised with respect to repayment of excessive non-service connected pension he was paid. As such, a new claim regarding these issues will not be referred at this time. If the Veteran feels any outstanding claims regarding overpayments have been raised by the record he is asked to notify the VA. The decision below addresses the only appealed issue of record; whether the Veteran is entitled to an increased rate for his non-service connected pension. FINDING OF FACT The Veteran's countable income is in excess of that which would permit a higher rate of payment of nonservice-connected pension benefits at any time during the pendency of this case. CONCLUSION OF LAW The criteria for an increased rate of payment of nonservice-connected pension benefits are not met.",
"38 U.S.C.A. §§ 1503, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.260, 3.261, 3.262, 3.271, 3.272 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Nonservice-connected Pension Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice-connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct. In this case, the Veteran's basic eligibility for nonservice-connected pension benefits is not in dispute as he has been found eligible for such benefits. Rather, the dispute in this case is in regard to the rate of payment of these benefits. Under the law, pension benefits are paid at the maximum annual pension rate (MAPR) reduced by the amount of annual income received by the veteran. 38 U.S.C.A.",
"§ 1521(b); 38 C.F.R. §§ 3.3(a)(3), 3.23(a), (b), (d)(4). In determining countable annual income for improved pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). The types of income which are excluded from income for VA pension purposes includes welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; casualty loss reimbursement; profit from the sale of property; joint accounts; medical expenses; expenses of last illnesses, burials, and just debts; educational expenses; a portion of the beneficiary's children's income; Domestic Volunteer Service Act Programs payments; distributions of funds under 38 U.S.C. § 1718; survivor benefit annuities; Agent Orange settlement payments; restitution to individuals of Japanese ancestry; cash surrender value of life insurance policies; income received by American Indian beneficiaries from trust or restricted lands; Radiation Exposure Compensation Act payments; and Alaska Native Claims Settlement Act payments. 38 C.F.R. § 3.272 (2015). Exclusions from countable income may include unreimbursed medical expenses to the extent that they are in excess of five percent of the applicable maximum annual pension rate.",
"38 C.F.R. § 3.272(g). Social Security Administration (SSA) disability and survivor benefits are not excludable from countable income, but welfare benefits, such as supplemental security income (SSI), are excludable from countable income for purposes of improved pension. See 38 C.F.R. § 3.272; VA ADJUDICATION PROCEDURE MANUAL (M21-1), Part V.iii.1.B.2.g. The MAPRs payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21 (2015). In this case, the Veteran was found entitled to nonservice-connected pension benefits effective from November 1, 2008. Effective December 1, 2007, the MAPR for nonservice-connected pension benefits for unmarried veterans with no dependents (as in the case here) was $11,181.",
"As of December 1, 2008, the MAPR was $11,830, the rate remained the same effective December 1, 2009. The Veteran indicated in an August 2010 statement that he was not disputing the amount awarded. As such, the Board will not evaluate the rate of payment following this time period. Moreover, in his April 2011 substantive appeal the Veteran reiterated that the purpose of his appeal was not to question the amount of his deduction. Rather, he stated he was disagreeing with the method of repayment of his overpayment. As noted in the introduction above, the overpayments have since been waived, and are not before the Board at this time. In this case, the worksheets showing the calculation of the Veteran's rate of nonservice-connected pension benefits all accurately noted the correct MAPR for that period. Beginning October 14, 2008, it was determined that the Veteran's countable annual income was $7757, compared to the applicable MAPR of $11,181 and he was entitled to nonservice-connected pension benefits at the rate of $285 per month.",
"Beginning December 1, 2008, it was determined that his annual income remained at $7757, compared to the applicable MAPR of $11,830, so he was entitled to a monthly nonservice-connected pension benefit of $339. Beginning August 1, 2009, the maximum annual pension rate for non-service connected pension benefits for a veteran with no dependents remained at $11,830. However, it was noted that his annual income had increased to $7852. This resulted in a deduction to $331 per month for his nonservice-connected pension benefit. Beginning November 1, 2009, the maximum annual pension rate remained at $11,830. His income was noted to be $3,260. His pension benefits were calculated to be $714 per month. The Board observes that the information used to determine the Veteran's countable income included information provided by the Veteran, as well as information from the Civil Service Retirement System.",
"Although overpayments were found to have accrued, these have subsequently been waived. The Veteran has not identified any outstanding information regarding his countable income for these relevant periods. Further, he has not identified any error in the calculation of his countable income based upon the information provided. As noted above, the Veteran indicated in an August 2010 statement and his substantive appeal that he was in fact no disputing the amount of his pension benefit. The Board's own calculations indicate that the amount of monthly nonservice-connected pension benefits in this case is generally consistent with being the sum of his countable income being subtracted from the applicable MAPR, and then being divided by 12. Moreover, there is a presumption of regularity of the administrative process that is only rebutted by clear and convincing evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found.",
"Ind., 272 U.S. 1, 14-15 (1926); Schoolman v. West, 12 Vet. App. 307, 310 (1999). In this case, there is no clear and convincing evidence that VA improperly calculated the Veteran's countable income or his rate of payment of nonservice-connected pension benefits based upon the application of his countable income to the applicable MAPR. In view of the foregoing, the Board finds that the Veteran has received the proper rate of payment of nonservice-connected pension benefits based upon the application of his undisputed amount of countable income to the relevant MAPR. As such, he has no legal entitlement to the benefit sought on appeal regarding this claim. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).",
"II. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Congress, in enacting the statute, noted the importance of balancing the duty to assist with 'the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim.' Mason v. Principi, 16 Vet. App. 129, 132 (2002). Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable. Id. The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App.",
"143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Because the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to this claim. Nonetheless, it is noted that the March 2011 Statement of the Case (SOC) included the laws and regulations pertaining to determining the amount of non-service connected pension. The appellant has not identified any additional pertinent evidence which should have been obtained. ORDER Entitlement to an increased rate of payment for nonservice-connected pension benefits is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0622280
Decision Date: 07/27/06 Archive Date: 08/10/06
DOCKET NO. 04-43 978 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to a rating higher than 20 percent for residuals
of an injury to the right (major) hand.
REPRESENTATION
Appellant represented by: New Hampshire State Veterans
Council
WITNESS AT HEARINGS ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran served on active duty from July 1962 to August
1966.
This appeal to the Board of Veterans' Appeals (Board) arose
from an April 2004 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Manchester, New
Hampshire, which increased the rating for the veteran's
right hand disability from 10 to 20 percent - retroactively
effective from the date of receipt of his claim for a higher
rating. He wants an even greater rating. See AB v. Brown, 6
Vet. App. 35, 38-39 (1993) (a veteran is presumed to be
seeking the highest possible rating unless he expressly
indicates otherwise).
To support his claim, the veteran testified at a
videoconference hearing before the Board in February 2006.
FINDINGS OF FACT
1. The medical evidence shows that residuals of the
veteran's right hand injury cause limitation of motion of the
index and long fingers with flare-ups or on repetitive
movement, resulting in a gap of greater than one inch between
the fingertip and the proximal transverse crease of the palm.
2. The fingers on the veteran's right hand are not ankylosed
and the manifestations of his disability are not equivalent
or tantamount to ankylosis.
CONCLUSION OF LAW
The criteria are not met for a rating higher than 20 percent
for residuals of a right hand injury. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. § 3.102, 4.1, 4.2, 4.7, 4.10,
4.40, 4.45, 4.59, and 4.71a, Code 5229 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107,
5126 (West 2002)), imposes obligations on VA in terms of its
duty to notify and assist claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II), the United States Court of
Appeals for Veterans Claims (Court) held that VA must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) request that the claimant provide any
evidence in his possession that pertains to the claim.
In this case, the RO has had an opportunity to consider the
claim on appeal in light of the above-noted change in the
law, and the requirements of the new law and regulations have
been satisfied. See Quartuccio, supra (addressing the duties
imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). By
virtue of a February 2004 RO letter to the veteran notifying
him of the VCAA, he has been advised of the laws and
regulations governing the claim on appeal and the evidence
that he must supply and the evidence that VA would attempt to
obtain. Thus, he may be considered to have been advised to
submit any pertinent evidence in his possession. He had two
hearings and was provided two VA compensation examinations,
including to assess the severity of his right hand disability
- the dispositive issue. He has not identified any
additional evidence that needs to be obtained. See Conway v.
Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). So the Board
finds that the duty to assist has been met.
Also, the Board has considered the Court's holding in
Pelegrini II that, to the extent possible, 38 U.S.C.A.
§ 5103(a) requires that VA provide content-complying VCAA
notice before any initial unfavorable agency of original
jurisdiction decision. See, too, Mayfield v. Nicholson, 19
Vet. App. 103, 128 (2005), rev'd on other grounds, 444 F.3d
1328 (Fed. Cir. 2006) (also discussing the timing of the VCAA
notice as it relates to prejudicial error). Here, the RO
initially considered the claim in April 2004 - so not until
after sending the veteran a VCAA letter in February 2004.
Consequently, there was no error in the timing of the VCAA
notice.
The Board is equally mindful that, during the pendency of
this appeal, on March 3, 2006, the Court issued another
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; (3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Additionally,
this notice must include notice that a disability rating and
an effective date for the award of benefits will be assigned
if service connection is awarded.
The veteran's claim in this case is for a higher disability
rating, rather than for service connection (which has been
granted). But even so, as mentioned, he was provided notice
of what type of information and evidence was needed to
substantiate his claim for an increased rating. He was not,
however, provided notice of the type of evidence necessary to
establish an effective date if this benefit is granted. But
this is nonprejudicial because the Board is denying his claim
for a higher disability rating, so any defect in notice
regarding the effective date element is moot. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
Analysis
Disability evaluations are assigned by applying a schedule of
ratings that represent, as far as can practicably be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. These evaluations
involve consideration of the level of impairment of the
veteran's ability to engage in ordinary activities, including
employment, as well as an assessment of the effect of pain on
those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved
in the veteran's favor. 38 C.F.R. § 4.3.
Although regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). In evaluating the
veteran's claim, all regulations that are potentially
applicable through assertions and issues raised in the record
have been considered, as required by Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
VA's rating schedule provides that, for the index, long,
ring, and little fingers (digits II, III, IV, and V), zero
degrees of flexion represents the fingers fully extended,
making a straight line with the rest of the hand. The
position of function of the hand is with the wrist
dorsiflexed 20 to 30 degrees, the metacarpophalangeal and
proximal interphalangeal joints flexed to 30 degrees, and the
thumb (digit I) abducted and rotated so that the thumb pad
faces the finger pads. Only joints in these positions are
considered to be in favorable position. For digits II
through V, the metacarpophalangeal joint has a range of zero
to 90 degrees of flexion, the proximal interphalangeal joint
has a range of zero to 100 degrees of flexion, and the distal
(terminal) interphalangeal joint has a range of zero to 70 or
80 degrees of flexion.
When two or more digits of the same hand are affected by any
combination of amputation, ankylosis, or limitation of motion
that is not otherwise specified in the rating schedule, the
evaluation level assigned will be that which best represents
the overall disability (i.e., amputation, unfavorable or
favorable ankylosis, or limitation of motion), assigning the
higher level of evaluation when the level of disability is
equally balanced between one level and the next higher level.
Evaluation of ankylosis of the index, long, ring, and little
fingers:
- If both the metacarpophalangeal and proximal
interphalangeal joints of a digit are ankylosed, and
either is in extension or full flexion, or there is
rotation or angulation of a bone, evaluate as amputation
without metacarpal resection, at proximal
interphalangeal joint or proximal thereto.
- If both the metacarpophalangeal and proximal
interphalangeal joints of a digit are ankylosed,
evaluate as unfavorable ankylosis, even if each joint is
individually fixed in a favorable position
- If only the metacarpophalangeal or proximal
interphalangeal joint is ankylosed, and there is a gap
of more than two inches (5.1 cm.) between the
fingertip(s) and the proximal transverse crease of the
palm, with the finger(s) flexed to the extent possible,
evaluate as unfavorable ankylosis.
- If only the metacarpophalangeal or proximal
interphalangeal joint is ankylosed, and there is a gap
of two inches (5.1 cm.) or less between the fingertip(s)
and the proximal transverse crease of the palm, with the
finger(s) flexed to the extent possible, evaluate as
favorable ankylosis.
If there is limitation of motion of two or more digits,
evaluate each digit separately and combine the evaluations.
Unfavorable ankylosis of the index, long, ring, and little
fingers warrants a 50 percent rating for the major hand and a
40 percent rating for the minor hand.
See 38 C.F.R. § 4.71a, Diagnostic Code 5217 (2005).
Favorable ankylosis of the index, long, ring, and little
fingers warrants a 40 percent rating for the major hand and a
30 percent rating for the minor hand. Code 5221.
For favorable ankylosis of the index, long, and ring; index,
long, and little; or index, ring, and little fingers, a 30
percent evaluation is assigned for the major hand and a 20
percent evaluation is assigned for the minor hand. Favorable
ankylosis of the long, ring and little fingers warrants a 20
percent rating. Code 5222.
For favorable ankylosis of the index and long; index and
ring; or index and little fingers, a 20 percent rating is
assigned. A 10 percent evaluation is warranted for favorable
ankylosis of the long and ring; long and little; or ring and
little fingers. Code 5223.
Unfavorable or favorable ankylosis of the index finger
warrants a 10 percent rating. Code 5225.
A 10 percent rating is assigned for unfavorable or favorable
ankylosis of the long finger. Code 5226.
Unfavorable or favorable ankylosis of the ring or little
finger warrants a 0 percent rating. Code 5227.
For limitation of motion of the index or long finger, a 10
percent evaluation is warranted with a gap of one inch (2.5
cm.) or more between the fingertip and the proximal
transverse crease of the palm, with the finger flexed to the
extent possible, or; with extension limited by more than 30
degrees. With a gap of less than one inch (2.5 cm.) between
the fingertip and the proximal transverse crease of the palm,
with the finger flexed to the extent possible, and; extension
is limited by no more than 30 degrees, a 0 percent rating is
warranted. Code 5229.
A 0 percent evaluation is assigned for any limitation of
motion in the ring or little finger. Code 5230.
The record shows the veteran sustained closed fractures of
the proximal phalanx of the second through fifth digits on
his right hand during service. The hand was casted for
several weeks. He is right-handed (so this is his "major"
hand). Service connection for residuals of that injury has
been in effect since 1978, and the April 2004 rating decision
at issue increased the rating for the disability from 10 to
20 percent - retroactively effective from the date of
receipt of the veteran's claim for a higher rating.
In recent years, the veteran has had increasing complaints of
occasional swelling and moderate pain in his right hand and
fingers, as well as occasional cramping and difficulty
flexing the fingers. In particular, he has noted increasing
difficulty with fine motor skills, such as picking up small
items and buttoning his shirt. He also has reported
difficulty gripping things with his right hand and that he
occasionally drops things.
The veteran was afforded VA compensation examinations in
February and November 2004. Both examiners noted volar
angulation of two of the digits of the veteran's right hand,
although the February 2004 examiner indicated it was the ring
and little fingers whereas the November 2004 examiner
identified the second and third digits. Both examiners
indicated the veteran was able to oppose all fingers to the
right thumb. The November 2004 examiner also noted the
veteran could touch all fingertips to the transverse crease
without difficulty. This examiner listed grip strength
values indicating some decrease in strength in the right hand
compared to the left, although the February 2004 examiner had
noted that grip strength was full in both hands.
The February 2004 VA examiner did not record individual range
of motion values for the fingers of the veteran's right hand.
But the November 2004 examiner recorded values indicating
slight limitation of motion of the second and third
metacarpophalangeal joints, moderate limitation of motion of
the second proximal interphalangeal joint, and moderate
limitation of motion of the second through fifth distal
interphalangeal joints. Both examiners stated there was no
evidence of painful motion and the November 2004 examiner
noted there was no evidence of arthritis in the fingers. X-
rays of the fingers of the right hand in 1997, and again in
November 2004, were reportedly essentially normal.
The February 2004 examiner stated there was some evidence of
weakness in the right hand and definite evidence of fine
motor incoordination, but no fatigability or instability.
The examiner further commented that the findings
significantly limited the veteran's functional ability and
would worsen during flare-ups, especially in cold weather or
with repetitive movement, although it was unlikely there
would be additional loss of range of motion during flare-ups.
The November 2004 examiner indicated there was evidence of
weakness and fatigability, but no instability. That
examiner, as well, stated there would be an increase in pain
and weakness during flare-ups or on repeated use, limiting
functional ability. And to quantify this, he said the
findings may be portrayed as an additional 10-20 degrees of
limitation of motion.
The veteran testified at two personal hearings - initially
before a local Decision Review Officer (DRO) at the RO in May
2005 and more recently in February 2006 before the
undersigned Veterans Law Judge (VLJ) of the Board using
video-conferencing technology. At both hearings, the veteran
described his right hand symptoms and the limitations they
impose, essentially as set forth above, and argued the
manifestations were equivalent to ankylosis, warranting a
higher rating.
Applying the clinical findings recorded by the 2004 VA
examiners, it is clear there is no ankylosis of any joints of
any of the fingers on the veteran's right hand. See Dinsay
v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski,
3 Vet. App. 259 (1992), both indicating that ankylosis is
complete immobility of the joint in a fixed position, either
favorable or unfavorable.
Although admittedly some deformity has been noted,
significant functional movement is retained in all fingers.
Thus, the Board finds that the reported manifestations are
not equivalent or tantamount to ankylosis, so a compensable
rating is not warranted on this basis. See Codes 5217, 5222,
5223, 5225, 5226, and 5227. It is also clear that, during
normal use, the veteran does not have sufficient limitation
of motion of any finger to warrant a compensable rating on
that basis, since the examiners indicated he could touch all
of his fingers to the palmar crease. See Codes 5229, 5230.
There remains for consideration, however, the Court's holding
in DeLuca v. Brown, 8 Vet. App. 202 (1995), that the
provisions of the Rating Schedule do not subsume 38 C.F.R.
§ 4.40, and that 38 C.F.R. § 4.14 does not forbid
consideration of a higher rating based on greater limitation
of motion due to pain on use, including during flare-ups. In
addition, the Court stressed that, because disability of the
musculoskeletal system is primarily the inability, due to
damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance, it is essential
that the examination on which ratings are based adequately
portray the anatomical damage and the functional loss with
respect to all these elements. See 38 C.F.R. §§ 4.40, 4.45.
See also 38 C.F.R. § 4.59.
Both of the VA examiners indicated the veteran's right hand
symptoms worsen during flare-ups or with repetitive movement
and thereby significantly limit his functional ability when
this occurs. They disagreed as to whether increased
limitation of motion results. But giving the veteran the
benefit of the doubt, the Board finds that he indeed
experiences greater limitation of motion on use, including
during flare-ups, and that this greater limitation of motion
warrants a compensable rating for his index and long fingers.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; DeLuca v. Brown, 8
Vet. App. 202 (1995).
Code 5229 provides a maximum 10 percent rating for the index
and long fingers, but Code 5230 provides only a 0 percent
rating for the ring and little fingers. And as mentioned,
the regulations state that, if there is limitation of motion
of two or more digits, each digit is to be evaluated
separately and the evaluations combined. So evaluating the
limitation of motion in the veteran's fingers, with two 10
percent ratings (for his index and long fingers) and two 0
percent ratings (for his ring and little fingers), results in
a combined rating of 20 percent. See 38 C.F.R. § 4.25
(2005).
Although the RO has not rated the manifestations of the right
hand disability on this specific basis, a 20 percent rating
is, nevertheless, already currently in effect. Accordingly,
the Board finds that no higher schedular rating is warranted.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40,
4.45, 4.59, and 4.71a, Code 5229.
In exceptional cases where evaluations provided by the rating
schedule are found to be inadequate, an extraschedular
evaluation may be assigned that is commensurate with the
veteran's average earning capacity impairment due to the
service-connected disability. 38 C.F.R. § 3.321(b)(1).
Here, though, the regular schedular standards adequately
describe and provide for the veteran's disability level.
Keep in mind that, generally speaking, the degrees of
disability specified are considered adequate to compensate
for considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. See 38 C.F.R. § 4.1. So to take the
veteran's case outside this norm, there must be some
exceptional circumstance. And here, there is no evidence he
has ever been hospitalized since service for treatment of his
right hand disability, much less frequently. Instead, he has
been evaluated and treated on an outpatient (as opposed to
inpatient) basis. Neither does the record reflect marked
interference with employment - again, meaning above and
beyond that contemplated by his current schedular rating, now
20 percent. He has submitted no evidence of excessive time
off from work due to the disability or of concessions made by
his
employer because of it. There simply is no evidence of any
unusual or exceptional circumstances that would take his case
outside the norm so as to warrant referral to VA's
Compensation and Pension Service for consideration of an
extraschedular rating. See Sanchez-Benitez v. West,
13 Vet. App. 282, 287 (2000); VAOPGCPREC 6-96.
ORDER
The claim for a rating higher than 20 percent for residuals
of a right hand injury is denied.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 07-27-2006 | [
"Citation Nr: 0622280 Decision Date: 07/27/06 Archive Date: 08/10/06 DOCKET NO. 04-43 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a rating higher than 20 percent for residuals of an injury to the right (major) hand. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran served on active duty from July 1962 to August 1966. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which increased the rating for the veteran's right hand disability from 10 to 20 percent - retroactively effective from the date of receipt of his claim for a higher rating.",
"He wants an even greater rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). To support his claim, the veteran testified at a videoconference hearing before the Board in February 2006. FINDINGS OF FACT 1. The medical evidence shows that residuals of the veteran's right hand injury cause limitation of motion of the index and long fingers with flare-ups or on repetitive movement, resulting in a gap of greater than one inch between the fingertip and the proximal transverse crease of the palm. 2. The fingers on the veteran's right hand are not ankylosed and the manifestations of his disability are not equivalent or tantamount to ankylosis.",
"CONCLUSION OF LAW The criteria are not met for a rating higher than 20 percent for residuals of a right hand injury. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5229 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat.",
"2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).",
"In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In this case, the RO has had an opportunity to consider the claim on appeal in light of the above-noted change in the law, and the requirements of the new law and regulations have been satisfied. See Quartuccio, supra (addressing the duties imposed by 38 U.S.C.",
"§ 5103(a) and 38 C.F.R. § 3.159). By virtue of a February 2004 RO letter to the veteran notifying him of the VCAA, he has been advised of the laws and regulations governing the claim on appeal and the evidence that he must supply and the evidence that VA would attempt to obtain. Thus, he may be considered to have been advised to submit any pertinent evidence in his possession. He had two hearings and was provided two VA compensation examinations, including to assess the severity of his right hand disability - the dispositive issue. He has not identified any additional evidence that needs to be obtained. See Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). So the Board finds that the duty to assist has been met. Also, the Board has considered the Court's holding in Pelegrini II that, to the extent possible, 38 U.S.C.A. § 5103(a) requires that VA provide content-complying VCAA notice before any initial unfavorable agency of original jurisdiction decision. See, too, Mayfield v. Nicholson, 19 Vet.",
"App. 103, 128 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (also discussing the timing of the VCAA notice as it relates to prejudicial error). Here, the RO initially considered the claim in April 2004 - so not until after sending the veteran a VCAA letter in February 2004. Consequently, there was no error in the timing of the VCAA notice. The Board is equally mindful that, during the pendency of this appeal, on March 3, 2006, the Court issued another decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App.",
"473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran's claim in this case is for a higher disability rating, rather than for service connection (which has been granted). But even so, as mentioned, he was provided notice of what type of information and evidence was needed to substantiate his claim for an increased rating.",
"He was not, however, provided notice of the type of evidence necessary to establish an effective date if this benefit is granted. But this is nonprejudicial because the Board is denying his claim for a higher disability rating, so any defect in notice regarding the effective date element is moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis Disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. These evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, including employment, as well as an assessment of the effect of pain on those activities.",
"38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the veteran's favor. 38 C.F.R. § 4.3. Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App.",
"55, 58 (1994). In evaluating the veteran's claim, all regulations that are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA's rating schedule provides that, for the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position.",
"For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. Evaluation of ankylosis of the index, long, ring, and little fingers: - If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto. - If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position - If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.)",
"between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. - If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis. If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. Unfavorable ankylosis of the index, long, ring, and little fingers warrants a 50 percent rating for the major hand and a 40 percent rating for the minor hand. See 38 C.F.R.",
"§ 4.71a, Diagnostic Code 5217 (2005). Favorable ankylosis of the index, long, ring, and little fingers warrants a 40 percent rating for the major hand and a 30 percent rating for the minor hand. Code 5221. For favorable ankylosis of the index, long, and ring; index, long, and little; or index, ring, and little fingers, a 30 percent evaluation is assigned for the major hand and a 20 percent evaluation is assigned for the minor hand. Favorable ankylosis of the long, ring and little fingers warrants a 20 percent rating. Code 5222. For favorable ankylosis of the index and long; index and ring; or index and little fingers, a 20 percent rating is assigned. A 10 percent evaluation is warranted for favorable ankylosis of the long and ring; long and little; or ring and little fingers. Code 5223. Unfavorable or favorable ankylosis of the index finger warrants a 10 percent rating.",
"Code 5225. A 10 percent rating is assigned for unfavorable or favorable ankylosis of the long finger. Code 5226. Unfavorable or favorable ankylosis of the ring or little finger warrants a 0 percent rating. Code 5227. For limitation of motion of the index or long finger, a 10 percent evaluation is warranted with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. With a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees, a 0 percent rating is warranted. Code 5229.",
"A 0 percent evaluation is assigned for any limitation of motion in the ring or little finger. Code 5230. The record shows the veteran sustained closed fractures of the proximal phalanx of the second through fifth digits on his right hand during service. The hand was casted for several weeks. He is right-handed (so this is his \"major\" hand). Service connection for residuals of that injury has been in effect since 1978, and the April 2004 rating decision at issue increased the rating for the disability from 10 to 20 percent - retroactively effective from the date of receipt of the veteran's claim for a higher rating. In recent years, the veteran has had increasing complaints of occasional swelling and moderate pain in his right hand and fingers, as well as occasional cramping and difficulty flexing the fingers.",
"In particular, he has noted increasing difficulty with fine motor skills, such as picking up small items and buttoning his shirt. He also has reported difficulty gripping things with his right hand and that he occasionally drops things. The veteran was afforded VA compensation examinations in February and November 2004. Both examiners noted volar angulation of two of the digits of the veteran's right hand, although the February 2004 examiner indicated it was the ring and little fingers whereas the November 2004 examiner identified the second and third digits. Both examiners indicated the veteran was able to oppose all fingers to the right thumb.",
"The November 2004 examiner also noted the veteran could touch all fingertips to the transverse crease without difficulty. This examiner listed grip strength values indicating some decrease in strength in the right hand compared to the left, although the February 2004 examiner had noted that grip strength was full in both hands. The February 2004 VA examiner did not record individual range of motion values for the fingers of the veteran's right hand. But the November 2004 examiner recorded values indicating slight limitation of motion of the second and third metacarpophalangeal joints, moderate limitation of motion of the second proximal interphalangeal joint, and moderate limitation of motion of the second through fifth distal interphalangeal joints. Both examiners stated there was no evidence of painful motion and the November 2004 examiner noted there was no evidence of arthritis in the fingers.",
"X- rays of the fingers of the right hand in 1997, and again in November 2004, were reportedly essentially normal. The February 2004 examiner stated there was some evidence of weakness in the right hand and definite evidence of fine motor incoordination, but no fatigability or instability. The examiner further commented that the findings significantly limited the veteran's functional ability and would worsen during flare-ups, especially in cold weather or with repetitive movement, although it was unlikely there would be additional loss of range of motion during flare-ups. The November 2004 examiner indicated there was evidence of weakness and fatigability, but no instability. That examiner, as well, stated there would be an increase in pain and weakness during flare-ups or on repeated use, limiting functional ability. And to quantify this, he said the findings may be portrayed as an additional 10-20 degrees of limitation of motion. The veteran testified at two personal hearings - initially before a local Decision Review Officer (DRO) at the RO in May 2005 and more recently in February 2006 before the undersigned Veterans Law Judge (VLJ) of the Board using video-conferencing technology. At both hearings, the veteran described his right hand symptoms and the limitations they impose, essentially as set forth above, and argued the manifestations were equivalent to ankylosis, warranting a higher rating.",
"Applying the clinical findings recorded by the 2004 VA examiners, it is clear there is no ankylosis of any joints of any of the fingers on the veteran's right hand. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992), both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. Although admittedly some deformity has been noted, significant functional movement is retained in all fingers. Thus, the Board finds that the reported manifestations are not equivalent or tantamount to ankylosis, so a compensable rating is not warranted on this basis. See Codes 5217, 5222, 5223, 5225, 5226, and 5227.",
"It is also clear that, during normal use, the veteran does not have sufficient limitation of motion of any finger to warrant a compensable rating on that basis, since the examiners indicated he could touch all of his fingers to the palmar crease. See Codes 5229, 5230. There remains for consideration, however, the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), that the provisions of the Rating Schedule do not subsume 38 C.F.R. § 4.40, and that 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In addition, the Court stressed that, because disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, it is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements.",
"See 38 C.F.R. §§ 4.40, 4.45. See also 38 C.F.R. § 4.59. Both of the VA examiners indicated the veteran's right hand symptoms worsen during flare-ups or with repetitive movement and thereby significantly limit his functional ability when this occurs. They disagreed as to whether increased limitation of motion results. But giving the veteran the benefit of the doubt, the Board finds that he indeed experiences greater limitation of motion on use, including during flare-ups, and that this greater limitation of motion warrants a compensable rating for his index and long fingers. 38 U.S.C.A.",
"§ 5107(b); 38 C.F.R. § 4.3; DeLuca v. Brown, 8 Vet. App. 202 (1995). Code 5229 provides a maximum 10 percent rating for the index and long fingers, but Code 5230 provides only a 0 percent rating for the ring and little fingers. And as mentioned, the regulations state that, if there is limitation of motion of two or more digits, each digit is to be evaluated separately and the evaluations combined. So evaluating the limitation of motion in the veteran's fingers, with two 10 percent ratings (for his index and long fingers) and two 0 percent ratings (for his ring and little fingers), results in a combined rating of 20 percent. See 38 C.F.R. § 4.25 (2005). Although the RO has not rated the manifestations of the right hand disability on this specific basis, a 20 percent rating is, nevertheless, already currently in effect.",
"Accordingly, the Board finds that no higher schedular rating is warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5229. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned that is commensurate with the veteran's average earning capacity impairment due to the service-connected disability. 38 C.F.R. § 3.321(b)(1). Here, though, the regular schedular standards adequately describe and provide for the veteran's disability level. Keep in mind that, generally speaking, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. So to take the veteran's case outside this norm, there must be some exceptional circumstance.",
"And here, there is no evidence he has ever been hospitalized since service for treatment of his right hand disability, much less frequently. Instead, he has been evaluated and treated on an outpatient (as opposed to inpatient) basis. Neither does the record reflect marked interference with employment - again, meaning above and beyond that contemplated by his current schedular rating, now 20 percent. He has submitted no evidence of excessive time off from work due to the disability or of concessions made by his employer because of it.",
"There simply is no evidence of any unusual or exceptional circumstances that would take his case outside the norm so as to warrant referral to VA's Compensation and Pension Service for consideration of an extraschedular rating. See Sanchez-Benitez v. West, 13 Vet. App. 282, 287 (2000); VAOPGCPREC 6-96. ORDER The claim for a rating higher than 20 percent for residuals of a right hand injury is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Exhibit 10.70
NORWEGIAN CRUISE LINE HOLDINGS LTD.
DIRECTORS’ COMPENSATION POLICY
(Effective January 1, 2020)
Directors of Norwegian Cruise Line Holdings Ltd., a company organized under the laws of Bermuda (the “Company”), who are not employed by the Company or one of its subsidiaries (“non-employee directors”) are entitled to the compensation set forth below, effective as of January 1, 2020, for their service as a member of the Board of Directors (the “Board”) of the Company. The Board has the right to amend this policy from time to time.
Cash Compensation
Annual Cash Retainer
$100,000
Annual Chairperson Retainer
$125,000
Annual Audit Committee Chairperson Retainer
$35,000
Annual Compensation Committee Chairperson Retainer
$25,000
Annual Nominating and Governance Committee Chairperson Retainer
$20,000
Annual Technology, Environmental, Safety and Security (“TESS”) Chairperson Retainer
$20,000
Annual Audit Committee Member Retainer
$15,000
Out-of-Country Meeting Attendance Fee
$10,000
Equity Compensation
Annual Equity Award
$155,000
Cash Compensation
Each non-employee director will be entitled to an annual cash retainer while serving on the Board in the amount set forth above (the “Annual Cash Retainer”). A non-employee director who serves as the Chairperson of the Board will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Audit Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Audit Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Compensation Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Compensation Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Nominating and Governance Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Nominating and Governance Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the TESS Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual TESS Committee Chairperson Retainer”). A non-employee director who serves as a member of the Audit Committee (other than the Chairperson of the Audit Committee) will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Audit Committee Member Retainer”). A non-employee director who attends in person a Board or committee meeting located outside of their country of residence will be entitled to a fee for attendance at the meeting in the amount set forth above (an “Out-of-Country Meeting Attendance Fee”), provided that the director will only be entitled to one Out-of-Country Meeting Attendance Fee if multiple Board or committee meetings are held on the same day or over consecutive days. Except for the Out-of-Country Meeting Attendance Fee, no non-employee director will be entitled to a meeting fee for attending in-person or telephonically any other Board or committee meetings.
The amounts of the Annual Cash Retainer, Annual Chairperson Retainer, Annual Audit Committee Chairperson Retainer, Annual Compensation Committee Chairperson Retainer, Annual Nominating and Governance Committee Chairperson Retainer, Annual TESS Committee Chairperson Retainer and Annual Audit Committee Member Retainer are expressed as annualized amounts. These retainers will be paid on a quarterly basis, at the end of each quarter in arrears, and will be pro-rated if a non-employee director serves (or serves in the corresponding position, as the case may be) for only a portion of the quarter (with the proration based on the number of calendar
1
days in the quarter that the director served as a non-employee director or held the particular position, as the case may be). Out-of-Country Meeting Attendance Fees for attendance at meetings that occur in a particular quarter will be paid at the end of the quarter.
Equity Awards
Annual Equity Awards for Continuing Board Members
On the first business day of each calendar year, each non-employee director then in office will automatically be granted an award of restricted share units of the Company (an “Annual Restricted Share Unit Award”) determined by dividing (1) the Annual Equity Award grant value set forth above by (2) the per-share closing price of an Ordinary Share on the first business day of that year (rounded down to the nearest whole share). Subject to the non-employee director’s continued service, each Annual Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the calendar year of the grant.
For each new non-employee director appointed or elected to the Board after the first business day of the calendar year, on the date that the new non-employee director first becomes a member of the Board, the new non-employee director will automatically be entitled to a pro-rata portion of the Annual Restricted Share Unit Award (a “Pro-Rata Annual Restricted Share Unit Award”) determined by dividing (1) a pro-rata portion of the Annual Equity Award grant value set forth above by (2) the per-share closing price of an Ordinary Share on the date the new non-employee director first became a member of the Board (rounded down to the nearest whole share). The pro-rata portion of the Annual Equity Award grant value for purposes of a Pro-Rata Annual Restricted Share Unit Award will equal the Annual Equity Award grant value set forth above multiplied by a fraction (not greater than one), the numerator of which is 12 minus the number of whole months that as of the particular grant date had elapsed since the first business day of the year, and the denominator of which is 12. Subject to the non-employee director’s continued service, each Pro-Rata Annual Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the year the award was granted.
Elective Grants of Equity Awards
Non-employee directors may elect, prior to the start of each applicable calendar year, to convert all or a portion of their Annual Cash Retainer (but not any Annual Chairperson Retainer, Annual Audit Committee Chairperson Retainer, Annual Compensation Committee Chairperson Retainer, Annual Nominating and Governance Committee Chairperson Retainer, Annual TESS Committee Retainer, Annual Audit Committee Member Retainer or Out-of-Country Meeting Attendance Fees) payable with respect to the particular calendar year into the right to receive an award of restricted share units of the Company (an “Elective Restricted Share Unit Award”). The Elective Restricted Share Unit Award shall automatically be granted on the first business day of each calendar year in an amount determined by dividing (1) the amount of the Annual Cash Retainer elected to be so converted by (2) the per-share closing price of an Ordinary Share on the first business day of the year (rounded down to the nearest whole share). Subject to the non-employee director’s continued service, each Elective Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the year the award was granted.
In order to elect to receive an Elective Restricted Share Unit Award, non-employee directors must complete an election form in such form as the Board may prescribe from time to time (an “Election Form”), and file such completed form with the Company prior to the start of the applicable calendar year (i.e. if a director wants to convert his or her Annual Cash Retainer payable for the 2020 calendar year, the Election Form must be filed prior to December 31, 2019). Once an Election Form is validly filed with the Company, it shall automatically continue in effect for future calendar years unless the non-employee director changes or revokes his or her Election Form prior to the beginning of any such future calendar years.
Provisions Applicable to All Equity Awards
Each award of restricted share units will be made under and subject to the terms and conditions of the Company’s Amended and Restated 2013 Performance Incentive Plan (the “2013 Plan”) or any successor equity compensation plan approved by the Company’s stockholders and in effect at the time of grant, and will be evidenced
2
by, and subject to the terms and conditions of, an award agreement in the form approved by the Board to evidence such type of grant pursuant to this policy.
Expense Reimbursement
All directors will be entitled to reimbursement from the Company for their reasonable travel (including airfare and ground transportation), lodging and meal expenses incident to meetings of the Board or committees thereof or in connection with other Board related business.
Product Familiarization
It being in the interest of the Company for non-employee directors of its Board to review and assess the Company’s products, the non-employee directors of the Board are encouraged to take one cruise with one of the Company’s brands annually. Accordingly, the Company will annually provide to each non-employee director one cabin for an up to 14-night cruise with the Company brand of their choice. Non-employee directors and a guest of their choice will be accommodated in a penthouse level (or Haven equivalent) cabin with such accommodation to be assigned by the Company’s revenue management department. The non-employee director will be responsible for taxes, port fees and fuel supplements as well as all onboard spending and transportation to and from the ship (other than any transportation that would otherwise be included in the ticket price of the cruise).
If a Board meeting is held on a cruise, the Company will absorb the cost of the cruise fare for each non-employee director and any guests traveling with such non-employee director in his or her stateroom. The non-employee director will be responsible for all onboard spending during such cruise.
In addition, non-employee directors and their immediate families are entitled to participate in any Company discount program in effect that is generally available to all Company employees for any additional cruises they may wish to take.
The Chairperson of the Compensation Committee of the Board may approve certain exceptions to the “Product Familiarization” section of this policy.
3 | [
"Exhibit 10.70 NORWEGIAN CRUISE LINE HOLDINGS LTD. DIRECTORS’ COMPENSATION POLICY (Effective January 1, 2020) Directors of Norwegian Cruise Line Holdings Ltd., a company organized under the laws of Bermuda (the “Company”), who are not employed by the Company or one of its subsidiaries (“non-employee directors”) are entitled to the compensation set forth below, effective as of January 1, 2020, for their service as a member of the Board of Directors (the “Board”) of the Company. The Board has the right to amend this policy from time to time. Cash Compensation Annual Cash Retainer $100,000 Annual Chairperson Retainer $125,000 Annual Audit Committee Chairperson Retainer $35,000 Annual Compensation Committee Chairperson Retainer $25,000 Annual Nominating and Governance Committee Chairperson Retainer $20,000 Annual Technology, Environmental, Safety and Security (“TESS”) Chairperson Retainer $20,000 Annual Audit Committee Member Retainer $15,000 Out-of-Country Meeting Attendance Fee $10,000 Equity Compensation Annual Equity Award $155,000 Cash Compensation Each non-employee director will be entitled to an annual cash retainer while serving on the Board in the amount set forth above (the “Annual Cash Retainer”).",
"A non-employee director who serves as the Chairperson of the Board will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Audit Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Audit Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Compensation Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Compensation Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the Nominating and Governance Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Nominating and Governance Committee Chairperson Retainer”). A non-employee director who serves as the Chairperson of the TESS Committee will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual TESS Committee Chairperson Retainer”).",
"A non-employee director who serves as a member of the Audit Committee (other than the Chairperson of the Audit Committee) will be entitled to an additional annual cash retainer while serving in that position in the amount set forth above (the “Annual Audit Committee Member Retainer”). A non-employee director who attends in person a Board or committee meeting located outside of their country of residence will be entitled to a fee for attendance at the meeting in the amount set forth above (an “Out-of-Country Meeting Attendance Fee”), provided that the director will only be entitled to one Out-of-Country Meeting Attendance Fee if multiple Board or committee meetings are held on the same day or over consecutive days. Except for the Out-of-Country Meeting Attendance Fee, no non-employee director will be entitled to a meeting fee for attending in-person or telephonically any other Board or committee meetings. The amounts of the Annual Cash Retainer, Annual Chairperson Retainer, Annual Audit Committee Chairperson Retainer, Annual Compensation Committee Chairperson Retainer, Annual Nominating and Governance Committee Chairperson Retainer, Annual TESS Committee Chairperson Retainer and Annual Audit Committee Member Retainer are expressed as annualized amounts. These retainers will be paid on a quarterly basis, at the end of each quarter in arrears, and will be pro-rated if a non-employee director serves (or serves in the corresponding position, as the case may be) for only a portion of the quarter (with the proration based on the number of calendar 1 days in the quarter that the director served as a non-employee director or held the particular position, as the case may be).",
"Out-of-Country Meeting Attendance Fees for attendance at meetings that occur in a particular quarter will be paid at the end of the quarter. Equity Awards Annual Equity Awards for Continuing Board Members On the first business day of each calendar year, each non-employee director then in office will automatically be granted an award of restricted share units of the Company (an “Annual Restricted Share Unit Award”) determined by dividing (1) the Annual Equity Award grant value set forth above by (2) the per-share closing price of an Ordinary Share on the first business day of that year (rounded down to the nearest whole share). Subject to the non-employee director’s continued service, each Annual Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the calendar year of the grant. For each new non-employee director appointed or elected to the Board after the first business day of the calendar year, on the date that the new non-employee director first becomes a member of the Board, the new non-employee director will automatically be entitled to a pro-rata portion of the Annual Restricted Share Unit Award (a “Pro-Rata Annual Restricted Share Unit Award”) determined by dividing (1) a pro-rata portion of the Annual Equity Award grant value set forth above by (2) the per-share closing price of an Ordinary Share on the date the new non-employee director first became a member of the Board (rounded down to the nearest whole share).",
"The pro-rata portion of the Annual Equity Award grant value for purposes of a Pro-Rata Annual Restricted Share Unit Award will equal the Annual Equity Award grant value set forth above multiplied by a fraction (not greater than one), the numerator of which is 12 minus the number of whole months that as of the particular grant date had elapsed since the first business day of the year, and the denominator of which is 12. Subject to the non-employee director’s continued service, each Pro-Rata Annual Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the year the award was granted.",
"Elective Grants of Equity Awards Non-employee directors may elect, prior to the start of each applicable calendar year, to convert all or a portion of their Annual Cash Retainer (but not any Annual Chairperson Retainer, Annual Audit Committee Chairperson Retainer, Annual Compensation Committee Chairperson Retainer, Annual Nominating and Governance Committee Chairperson Retainer, Annual TESS Committee Retainer, Annual Audit Committee Member Retainer or Out-of-Country Meeting Attendance Fees) payable with respect to the particular calendar year into the right to receive an award of restricted share units of the Company (an “Elective Restricted Share Unit Award”). The Elective Restricted Share Unit Award shall automatically be granted on the first business day of each calendar year in an amount determined by dividing (1) the amount of the Annual Cash Retainer elected to be so converted by (2) the per-share closing price of an Ordinary Share on the first business day of the year (rounded down to the nearest whole share). Subject to the non-employee director’s continued service, each Elective Restricted Share Unit Award will vest in one installment on the first business day of the calendar year following the year the award was granted. In order to elect to receive an Elective Restricted Share Unit Award, non-employee directors must complete an election form in such form as the Board may prescribe from time to time (an “Election Form”), and file such completed form with the Company prior to the start of the applicable calendar year (i.e.",
"if a director wants to convert his or her Annual Cash Retainer payable for the 2020 calendar year, the Election Form must be filed prior to December 31, 2019). Once an Election Form is validly filed with the Company, it shall automatically continue in effect for future calendar years unless the non-employee director changes or revokes his or her Election Form prior to the beginning of any such future calendar years. Provisions Applicable to All Equity Awards Each award of restricted share units will be made under and subject to the terms and conditions of the Company’s Amended and Restated 2013 Performance Incentive Plan (the “2013 Plan”) or any successor equity compensation plan approved by the Company’s stockholders and in effect at the time of grant, and will be evidenced 2 by, and subject to the terms and conditions of, an award agreement in the form approved by the Board to evidence such type of grant pursuant to this policy.",
"Expense Reimbursement All directors will be entitled to reimbursement from the Company for their reasonable travel (including airfare and ground transportation), lodging and meal expenses incident to meetings of the Board or committees thereof or in connection with other Board related business. Product Familiarization It being in the interest of the Company for non-employee directors of its Board to review and assess the Company’s products, the non-employee directors of the Board are encouraged to take one cruise with one of the Company’s brands annually. Accordingly, the Company will annually provide to each non-employee director one cabin for an up to 14-night cruise with the Company brand of their choice. Non-employee directors and a guest of their choice will be accommodated in a penthouse level (or Haven equivalent) cabin with such accommodation to be assigned by the Company’s revenue management department.",
"The non-employee director will be responsible for taxes, port fees and fuel supplements as well as all onboard spending and transportation to and from the ship (other than any transportation that would otherwise be included in the ticket price of the cruise). If a Board meeting is held on a cruise, the Company will absorb the cost of the cruise fare for each non-employee director and any guests traveling with such non-employee director in his or her stateroom. The non-employee director will be responsible for all onboard spending during such cruise. In addition, non-employee directors and their immediate families are entitled to participate in any Company discount program in effect that is generally available to all Company employees for any additional cruises they may wish to take.",
"The Chairperson of the Compensation Committee of the Board may approve certain exceptions to the “Product Familiarization” section of this policy. 3"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Applicant’s request for continued examination filed April 30, 2021 is acknowledged. Claims 1 and 13 are amended. Claims 1-6, 9-10, and 12-21 are pending and further considered on the merits. Response to Amendment In light of applicant’s response the examiner modifies the grounds of rejection set forth in the office action filed December 31, 2020. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art.
Claims 1-6, 9-10, and 12-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Childs et al., USPA 2008/0017578 (Childs) in view of Johnson, US 6881336 (Johnson) and Baurmeister et al., US 6022478 (Baurmeister, IDS). Regarding claims 1-2, Childs discloses a filtration device (abstract, figs. 2-3) comprising: A housing with an inlet and outlet (see “feed/distributor system and permeate collection system”, ¶ 0077-0081) and a lateral housing wall (REF 14) between the inlet and outlet; A flat filter module with stacked functionalized membrane layers (REF 10, ¶ 0121) and intermediate layers (REF 12) arranged between the inlet and the outlet, the outer circumferential surfaces of the filter module being arranged against the lateral housing wall in a fluid tight manner (¶ 0080), said filter module having swellable membranes which increase in thickness upon swelling (see “non-woven fabrics”, “such membranes will have a surface layer of the gel that is not strengthened by the support” ¶ 0056, and “degree of swelling of the macroporous gel is changed by an environmental stimulus” ¶ 0124); An inflow channel arranged upstream of the membrane layers and an outflow channel arranged downstream of the membrane layers (see various membrane stack embodiments having feed/permeate channels, ¶ 0076-0081); and The intermediate layers are made of a flow permeable and compressible material (see “polypropylene” and “polyester”, ¶ 0065), a thickness of the intermediate layers corresponding to 75-125% of a thickness of the membrane layers (¶ 0062, 0148), the intermediate layers being in a fluid tight arrangement with the lateral housing wall ensuring that all fluid flow from the inflow channel to the outflow channel is through the flat membrane layers (fig. 3, ¶ 0075, 0078, 0080). Childs further discloses that the intermediate layer can be polypropylene or polyester mesh with high porosity (¶ 0065). While Childs is silent with respect to the basis weight or air flow rate of the intermediate layer, it can be envisaged that the material would encompass at least the basis weight and air flow rates, since the recited ranges encompass a wide span of advantageous material properties including durability and minimal interference for flow-through applications. Additionally, Johnson discloses that filtration media spacer sheets are designed to optimize separation processes, the elements of optimization being spacer thickness and void fraction among others (C4/L35-C5/L20). Johnson further discloses that the spacer sheet can be made of materials to optimize the basis weight of the filtration module (C7/L36-53). At the time of invention it would have been obvious to one having ordinary skill in the art to optimize the intermediate layer of Childs to encompass the basis weight and air flow rate in relation to the membrane layers, since each of these variables are recognized as result effective variables (in light of Johnson) and discovering an Lastly, Childs does not explicitly disclose that the intermediate layers are formed from a nonwoven compressible material. However, Baurmeister discloses filtration devices (abstract, fig. 14) comprising a membrane stack (REF 22) separated by nonwoven spacer layers (REF 26, C14/L56-65) where the spacer layers are elastic and reversibly compressible (C15/L1-15). At the time of invention it would have been obvious to one having ordinary skill in the art to modify Childs to utilize the compressible nonwoven spacer layers as described in Baurmeister in order to improve the method of manufacture by compressibly inserting spacer layers and membrane layers together within a fluid-tight housing (Baurmeister, C15/L1-15). Regarding claim 3, modified Childs discloses that the intermediate layer is made of a synthetic polymer (¶ 0065). Regarding claim 4, modified Childs discloses a filtration device wherein the intermediate layer has lower flow resistance than the membrane layers (¶ 0058). Regarding claim 5, modified Childs discloses a filtration device wherein the thickness of the intermediate layers are variable (¶ 0058). Further limitations drawn to predetermined thicknesses based on another property are not considered since they are purely functional with respect to the filtration device and do not impart structural limitations to the claim. Since Childs discloses a device having the preferred thickness Regarding claim 6, Johnson further discloses a filtration device wherein an inflow channel has a compressible and flow permeable intermediate layer (see “feed spacer sheet”, abstract). Regarding claim 9, modified Childs discloses a filtration device wherein the membrane layers are adsorption filters with identical adsorption properties (¶ 0051). Regarding claim 10, modified Childs discloses a filtration device that is a sterile connectable component to other components (figs. 4A-B, ¶ 0052-0053). Regarding claim 12, modified Childs discloses a filtration device wherein the membrane layers are adsorption filters with different adsorption properties (Table 1). Regarding claims 13-21, modified Childs is relied upon in the rejections set forth above. Childs further discloses that the filtration device can be of a spiral-wound configuration (¶ 0067) that ensures all fluid flow from the inflow channel to the outflow channel is through the web-shaped membrane layer of the spiral wound module (¶ 0081), all other components being the same as those recited above. Response to Arguments Applicant's arguments filed April 30, 2021 have been fully considered but are not found persuasive. Applicant argues that the modification of Childs with teachings found in Baurmeister does not teach the limitation of an intermediate layer which “compresses to compensate” for swelling of the membrane layers. In response, the examiner firstly notes that “swelling of the membrane layers” is merely a state of the membrane while in Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DIRK R BASS whose telephone number is (571)270-7370. The examiner can normally be reached on 8-4:30 EST Monday-Friday. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bobby Ramdhanie can be reached on (571) 270-3240. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic
DIRK R. BASS Primary Examiner Art Unit 1779
/DIRK R BASS/Primary Examiner, Art Unit 1779 | 2021-05-14T05:46:37 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Applicant’s request for continued examination filed April 30, 2021 is acknowledged. Claims 1 and 13 are amended. Claims 1-6, 9-10, and 12-21 are pending and further considered on the merits. Response to Amendment In light of applicant’s response the examiner modifies the grounds of rejection set forth in the office action filed December 31, 2020. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art.",
"2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. Claims 1-6, 9-10, and 12-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Childs et al., USPA 2008/0017578 (Childs) in view of Johnson, US 6881336 (Johnson) and Baurmeister et al., US 6022478 (Baurmeister, IDS). Regarding claims 1-2, Childs discloses a filtration device (abstract, figs. 2-3) comprising: A housing with an inlet and outlet (see “feed/distributor system and permeate collection system”, ¶ 0077-0081) and a lateral housing wall (REF 14) between the inlet and outlet; A flat filter module with stacked functionalized membrane layers (REF 10, ¶ 0121) and intermediate layers (REF 12) arranged between the inlet and the outlet, the outer circumferential surfaces of the filter module being arranged against the lateral housing wall in a fluid tight manner (¶ 0080), said filter module having swellable membranes which increase in thickness upon swelling (see “non-woven fabrics”, “such membranes will have a surface layer of the gel that is not strengthened by the support” ¶ 0056, and “degree of swelling of the macroporous gel is changed by an environmental stimulus” ¶ 0124); An inflow channel arranged upstream of the membrane layers and an outflow channel arranged downstream of the membrane layers (see various membrane stack embodiments having feed/permeate channels, ¶ 0076-0081); and The intermediate layers are made of a flow permeable and compressible material (see “polypropylene” and “polyester”, ¶ 0065), a thickness of the intermediate layers corresponding to 75-125% of a thickness of the membrane layers (¶ 0062, 0148), the intermediate layers being in a fluid tight arrangement with the lateral housing wall ensuring that all fluid flow from the inflow channel to the outflow channel is through the flat membrane layers (fig.",
"3, ¶ 0075, 0078, 0080). Childs further discloses that the intermediate layer can be polypropylene or polyester mesh with high porosity (¶ 0065). While Childs is silent with respect to the basis weight or air flow rate of the intermediate layer, it can be envisaged that the material would encompass at least the basis weight and air flow rates, since the recited ranges encompass a wide span of advantageous material properties including durability and minimal interference for flow-through applications. Additionally, Johnson discloses that filtration media spacer sheets are designed to optimize separation processes, the elements of optimization being spacer thickness and void fraction among others (C4/L35-C5/L20). Johnson further discloses that the spacer sheet can be made of materials to optimize the basis weight of the filtration module (C7/L36-53). At the time of invention it would have been obvious to one having ordinary skill in the art to optimize the intermediate layer of Childs to encompass the basis weight and air flow rate in relation to the membrane layers, since each of these variables are recognized as result effective variables (in light of Johnson) and discovering an Lastly, Childs does not explicitly disclose that the intermediate layers are formed from a nonwoven compressible material.",
"However, Baurmeister discloses filtration devices (abstract, fig. 14) comprising a membrane stack (REF 22) separated by nonwoven spacer layers (REF 26, C14/L56-65) where the spacer layers are elastic and reversibly compressible (C15/L1-15). At the time of invention it would have been obvious to one having ordinary skill in the art to modify Childs to utilize the compressible nonwoven spacer layers as described in Baurmeister in order to improve the method of manufacture by compressibly inserting spacer layers and membrane layers together within a fluid-tight housing (Baurmeister, C15/L1-15). Regarding claim 3, modified Childs discloses that the intermediate layer is made of a synthetic polymer (¶ 0065).",
"Regarding claim 4, modified Childs discloses a filtration device wherein the intermediate layer has lower flow resistance than the membrane layers (¶ 0058). Regarding claim 5, modified Childs discloses a filtration device wherein the thickness of the intermediate layers are variable (¶ 0058). Further limitations drawn to predetermined thicknesses based on another property are not considered since they are purely functional with respect to the filtration device and do not impart structural limitations to the claim.",
"Since Childs discloses a device having the preferred thickness Regarding claim 6, Johnson further discloses a filtration device wherein an inflow channel has a compressible and flow permeable intermediate layer (see “feed spacer sheet”, abstract). Regarding claim 9, modified Childs discloses a filtration device wherein the membrane layers are adsorption filters with identical adsorption properties (¶ 0051). Regarding claim 10, modified Childs discloses a filtration device that is a sterile connectable component to other components (figs. 4A-B, ¶ 0052-0053). Regarding claim 12, modified Childs discloses a filtration device wherein the membrane layers are adsorption filters with different adsorption properties (Table 1). Regarding claims 13-21, modified Childs is relied upon in the rejections set forth above.",
"Childs further discloses that the filtration device can be of a spiral-wound configuration (¶ 0067) that ensures all fluid flow from the inflow channel to the outflow channel is through the web-shaped membrane layer of the spiral wound module (¶ 0081), all other components being the same as those recited above. Response to Arguments Applicant's arguments filed April 30, 2021 have been fully considered but are not found persuasive. Applicant argues that the modification of Childs with teachings found in Baurmeister does not teach the limitation of an intermediate layer which “compresses to compensate” for swelling of the membrane layers. In response, the examiner firstly notes that “swelling of the membrane layers” is merely a state of the membrane while in Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DIRK R BASS whose telephone number is (571)270-7370. The examiner can normally be reached on 8-4:30 EST Monday-Friday.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bobby Ramdhanie can be reached on (571) 270-3240. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only.",
"For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic DIRK R. BASS Primary Examiner Art Unit 1779 /DIRK R BASS/Primary Examiner, Art Unit 1779"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-23.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
238 P.3d 503 (2010) IN RE MARRIAGE OF OBAIDI AND QAYOUM. No. 84640-5. Supreme Court of Washington, Department II. September 9, 2010. Disposition of Petition for Review Denied. | 10-30-2013 | [
"238 P.3d 503 (2010) IN RE MARRIAGE OF OBAIDI AND QAYOUM. No. 84640-5. Supreme Court of Washington, Department II. September 9, 2010. Disposition of Petition for Review Denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2261398/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.1 Page 1 of 22
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
DV DIAMOND CLUB OF FLINT, LLC d/b/a Little Darlings,
Plaintiffs, Case No. Hon. v.
UNITED STATES SMALL BUSINESS ADMINISTRATION; JOVITA CARRANZA, in her Official Capacity as Administrator of the Small Business Administration; UNITED STATES OF AMERICA; and STEVEN MNUCHIN, in his Official Capacity as United States Secretary of Treasury,
Defendants. __________________________________________________________________ Bradley J. Shafer (P36604) Brad@BradShaferLaw.com Matthew J. Hoffer (P70495) Matt@BradShaferLaw.com SHAFER & ASSOCIATES, P.C. 3800 Capital City Blvd., Suite 2 Lansing, Michigan, 48906 517-886-6560 – Telephone Attorneys for Plaintiff DV Diamond Club of Flint, LLC __________________________________________________________________
PLAINTIFF’S VERIFIED COMPLAINT FOR EMERGENCY TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DECLARATORY RELIEF Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.2 Page 2 of 22
NOW COMES Plaintiff DV Diamond Club of Flint, LLC, and for its
complaint, hereby states the following.
INTRODUCTION
1. This is a civil action wherein Plaintiff seeks injunctive relief to restrain
Defendants from discriminating against workers who are entitled to benefit from the
Paycheck Protection Program (“PPP”) provisions of the recently-enacted
Coronavirus, Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 §§ 1101-
03, 1107, 1114 (2020) (the “CARES Act”). The PPP is designed to quickly provide
emergency relief to workers and businesses affected by the current COVID-19
pandemic following the President of the United States declaring a national
emergency. However, the emergency regulations promulgated by the Small
Business Administration to implement the PPP, which in part adopt existing
regulations formulated to implement narrower existing loan programs, improperly
and unconstitutionally limit benefits to businesses and workers unquestionably
engaged in First Amendment protected expression. The regulations and operating
procedures, described more specifically below, conflict with the text of the PPP and
violate business and workers’ fundamental rights under the First and Fifth
Amendments of the United States Constitution, among others.
2 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.3 Page 3 of 22
2. Because the funding of the PPP is to occur on a first-come-first-serve
basis until the fund is depleted, Plaintiff brings this action on an emergency basis
and will seek Temporary Restraining Order to prevent irreparable injury to its
workers, its business, the entertainers who perform on its premises, and all their
constitutional rights.
JURISDICTION AND VENUE
3. Jurisdiction is conferred on this Court for the resolution of the
substantial constitutional questions presented here by virtue of 28 U.S.C. § 1331; 28
U.S.C. § 1343(a)(1), (3), (4); 28 U.S.C. § 1346(a)(2); and 28 U.S.C. § 1361.
4. Authority for judicial review of agency action is further provided by 5
U.S.C. § 702, which states:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to 3 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.4 Page 4 of 22
dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5. The prayer for declaratory relief is founded in part on Rule 57 of the
Federal Rules of Civil Procedure as well as 28 U.S.C. § 2201, the latter of which
provides that:
“. . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. . . .”
6. The jurisdiction of the Court to grant injunctive relief is conferred upon
this Court by Rule 65 of the Federal Rules of Civil Procedure, and by 28 U.S.C. §
2202, the latter of which provides:
“Further necessary or proper relief on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.”
7. No other action, civil or criminal, is pending in any state court involving
the Plaintiffs regarding the activities and events at issue here.
8. This suit is authorized by law to redress deprivations of rights,
privileges, and immunities secured by the First and Fifth Amendments to the United
States Constitution, and for declaratory and injunctive relief.
4 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.5 Page 5 of 22
9. Venue in this Court is appropriate as the Plaintiff is located in the
Eastern District of Michigan; it has applied for a loan within the Eastern District; the
Small Business Administration and the Treasury Department operate in the Eastern
District; and the injury complained of and acts causing that injury have occurred and
will continue to occur in the Eastern District of Michigan.
PARTIES
10. DV Diamond Club of Flint, LLC (“DV” or just “Plaintiff”) is a
Michigan Limited Liability Company duly organized and authorized to conduct
business in the State of Michigan. DV does business as Little Darlings at 2341 South
Dort Highway in Flint, Michigan, which is located in Genesee County, State of
Michigan.
11. Defendant United States Small Business Administration (the “SBA”) is
an independent federal agency created and authorized pursuant to 15 U.S.C. § 633,
et seq. The SBA maintains a branch office at 477 Michigan Avenue, Suite 1819,
McNamara Building, Detroit, Michigan, which is within the Eastern District of
Michigan.
5 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.6 Page 6 of 22
12. Defendant Jovita Carranza (“Carranza,” or the “Administrator”) is the
Administrator of the SBA, a Cabinet-level position, and is sued in her official
capacity only, as the Administrator of the SBA.
13. Authority to sue the Administrator is granted by 15 U.S.C. § 634(b),
which states, in part:
In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator may—
(1) sue and be sued in any court of record of a State having general jurisdiction, or in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy . . . .
14. Steven Mnuchin (the “Secretary”) is the Secretary of the Treasury
Department (the “Treasury”) of the United States of America, and is sued in his
official capacity only as the Secretary of the Treasury Department.
15. Defendant currently does not seek monetary relief, and seeks only to
restrain the actions of the Administrator and the Secretary in each of their official
capacities.
16. The United States of America is a sovereign nation dedicated to the
protection of life, liberty, and property, as set forth in the Bill of Rights and other
provisions and amendments to the Constitution of the United States of America. 6 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.7 Page 7 of 22
RELEVANT STATUTORY PROVISIONS AND ADMINISTRATIVE REGULATIONS
17. The CARES Act was signed into law by the President of the United
States on March 28, 2020, and is currently in effect.
18. A true and accurate copy of the Paycheck Protection Program (the
“PPP”) provisions of the CARES Act is attached hereto as Exhibit A and hereby
incorporated by reference as though fully set forth herein.
19. The PPP provisions of the CARES Act instruct the SBA to promulgate
rules as follows:
SEC. 1114. EMERGENCY RULEMAKING AUTHORITY.
Not later than 15 days after the date of the enactment of this Act, the Administrator shall issue regulations to carry out this title and the amendments made by this title without regard to the notice requirements under section 553(b) of title 5, Unites States Code.
20. The CARES Act specifically tasks the SBA with administering the
PPP. The PPP further provides at 15 U.S.C. § 636(a)(36)(F)(ii):
Delegated authority
(I) In general For purposes of making covered loans for the purposes described in clause (i), a lender approved to make loans under this subsection shall be deemed to have been delegated authority by the Administrator to
7 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.8 Page 8 of 22
make and approve covered loans, subject to the provisions of this paragraph.
(II) Considerations In evaluating the eligibility of a borrower for a covered loan with the terms described in this paragraph, a lender shall consider whether the borrower-- (aa) was in operation on February 15, 2020; and (bb)(AA) had employees for whom the borrower paid salaries and payroll taxes; or (BB) paid independent contractors, as reported on a Form 1099-MISC.
(iii) Additional lenders The authority to make loans under this paragraph shall be extended to additional lenders determined by the Administrator and the Secretary of the Treasury to have the necessary qualifications to process, close, disburse and service loans made with the guarantee of the Administration.
21. Pursuant to the PPP, the SBA did, in fact, promulgate regulations on
April 1, 2020. A true and accurate copy of Business Loan Program Temporary
Changes; Paycheck Protection Program, RIN 3245-AH34 (Interim Final Rule Apr.
1, 2020) (the “SBA 3245”), as promulgated by the SBA, is attached hereto as
Exhibit B and hereby incorporated by reference as though fully set forth herein.
22. SBA 3245 provides, in part:
Businesses that are not eligible for PPP loans are identified in 13 CFR 120.110 and described further in SBA’s Standard Operating Procedure (SOP) 50 10, Subpart B, Chapter 2, except that nonprofit organizations authorized under the Act are eligible. (SOP 50 10 can be found at
8 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.9 Page 9 of 22
https://www.sba.gov/document/sop-50-10-5-lender-development-company- loan-programs.)
23. SBA 3245 further provides that PPP loans with be provided on a first-
come, first-served basis until funds are exhausted. [See Ex. B, p.13]. The PPP has
a total monetary limit of $349,000,000,000.00 ($349 Billion).
24. A true and accurate copy of Business Loan Program, 60 Fed. Reg.
64356 et seq. (proposed Dec. 15, 1995; to be codified at 13 C.F.R. § 120.110), as
promulgated by the SBA, is attached hereto as Exhibit C and hereby incorporated
by reference as though fully set forth herein.
25. A true and accurate copy of SBA Business Loan Ineligible Businesses
Rule, 13 C.F.R § 120.110 (2020), as actually enacted, is attached hereto as Exhibit
D and hereby incorporated by reference as though fully set forth herein.
26. 13 C.F.R § 120.110 provides, in part:
The following types of Businesses are ineligible:
* * * (p) Businesses which:
(1) Present live performances of a prurient sexual nature; or
(2) Derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the
9 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.10 Page 10 of 22
presentation of any depiction or display, of a prurient sexual nature;
These provisions are hereinafter referred to simply as the “Regulations.”
27. A true and accurate copy of SBA Standard Operating Procedure 50 10
5(K) – Lender and Development Company Loan Programs (Apr. 1, 2019), is
attached hereto as Exhibit E and hereby incorporated by reference as though fully
set forth herein.
28. The SBA Standard Operating Procedure 50 10 5(K) – Lender and
Development Company Loan Programs (Apr. 1, 2019) provides, in part, at Ch.2
(III)(A):
15. Businesses Providing Prurient Sexual Material (13 CFR § 120.110 (p)) a. A business is not eligible for SBA assistance if:
i. It presents live or recorded performances of a prurient sexual nature; or
ii. It derives more than 5% of its gross revenue, directly or indirectly, through the sale of products, services or the presentation of any depictions or displays of a prurient sexual nature.
b. SBA has determined that financing lawful activities of a prurient sexual nature is not in the public interest. The Lender must consider whether the nature and extent of the sexual component causes the business activity to be prurient.
10 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.11 Page 11 of 22
c. If a Lender finds that the Applicant may have a business aspect of a prurient sexual nature, prior to submitting an application to the LGPC (non-delegated) or requesting a loan number (delegated), the Lender must document and submit the analysis and supporting documentation to the Associate General Counsel for Litigation at PSMReview@sba.gov for a final Agency decision on eligibility. Upon approval by SBA, the Lender may submit the application to the LGPC or may proceed to process the loan under its delegated authority. A non-delegated Lender must submit a copy of SBA’s approval with the application to the LGPC. A delegated Lender must retain its analysis, supporting documentation, and evidence of SBA’s approval in its loan file and must submit the analysis and supporting documentation to SBA with any request for guaranty purchase. SBA also may review such documentation when conducting Lender oversight activities.
These provisions are hereinafter referred to as the “SOP.”
29. Defendant SBA is responsible for formulating, issuing, and enforcing
the Regulations and the SOP.
30. A true and accurate exemplar copy of the SBA Paycheck Protection
Program Borrower Application Form 2483 (Apr. 2020) is attached hereto as Exhibit
F, and hereby incorporated by reference as though fully set forth herein.
31. A true and accurate copy of the Hancock Whitney Bank Paycheck
Protection Program Supplemental Information Form (current as of Apr. 5, 2020) is
attached hereto as Exhibit G and hereby incorporated by reference as though fully
set forth herein. 11 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.12 Page 12 of 22
32. The First Amendment to the Unites States Constitution reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
33. The Fifth Amendment to the United States Constitution reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
STATEMENT OF FACTS
34. DV is an alcohol-serving establishment open to the consenting adult
public which is in the business of, has presented, and desires to continue to present
in the future, male and female performance dance entertainment which is fully
clothed and, at times for the female entertainers, topless. All of the entertainment
provided by DV is non-obscene, appeals to healthy human interests and desires, and
is in full compliance with the numerous licenses and permits held by DV.
12 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.13 Page 13 of 22
35. None of the live performances at DV are unlawful or obscene. Neither
DV nor any of the entertainers who have performed on its premises have ever been
charged, let alone convicted, of any crimes of obscenity.
36. DV duly holds a Class C Liquor License issued by the Michigan Liquor
Control Commission, with permits for Sunday Sales, Additional Bar and Specially
Designated Merchant, and DV presents lawful entertainment in conformity
therewith.
37. DV duly holds a business license to present “Adult Entertainment”
issued by the City of Flint, Michigan, and DV presents lawful entertainment in
conformity therewith.
38. DV duly holds a business license with a “dance permit” issues by the
City of Flint Michigan, and DV presents lawful entertainment in conformity
therewith.
39. DV is currently shuttered as a result of the emergency “shelter-in-
place” executive order (Executive Order 2020-21) issued by the Governor of
Michigan as a result of the COVID-19 pandemic. As a direct and proximate result
of such state-ordered closure, DV has suffered significant business losses, but plans
to reopen when legally permitted to do so. DV has been closed for business since
13 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.14 Page 14 of 22
at least 12:01am on March 24, 2020, and remains closed as of the date of this
complaint is filed.
40. In order to mitigate its business losses and to provide monetary relief
to its employees – since at least 75% of PPP loans are to be used for employee wages
and salaries, DV sought out to apply for a PPP loan.
41. On or about April 6, 2020, DV submitted an application for a PPP loan
through Oxford Bank, and specifically though its branch located at 1115 S. Lapeer
Road, Lake Orion, State of Michigan; that being within the Eastern District of
Michigan. Oxford Bank is an approved SBA Lender. A true and accurate copy of
DV’s PPP loan application to Oxford Bank (the “Application”) is attached hereto as
Exhibit H and is incorporated by reference as though fully set forth herein.
42. Pursuant to 15 U.S.C. § 636(a)(36)(F)(ii)(I), Oxford Bank is and will
operate as a delegate of the SBA in the processing and approval or disapproval of
the PPP loan sought by DV.
43. DV is fully qualified -- but for the Regulations and the SOP or the
SBA’s application thereof -- to receive a PPP loan under all relevant statutes,
regulations, and procedures. However, DV reasonably believes that its Application
will be rejected or fatally delayed due to the SOP and/or the Regulations. 14 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.15 Page 15 of 22
44. DV has learned that numerous other similar businesses, which
presented non-obscene female performance dance entertainment of an “exotic,”
“topless” and/or fully nude variety have had their applications for PPP loans rejected
by their SBA lending banks, or derailed, on their bank’s belief that the business is
disqualified by the Regulations and/or the SOP. Specifically, DV has learned that
other similar establishments have had their applications for PPP loans rejected on
the belief that the clubs present “live performances of a prurient sexual nature”
within the meaning of 13 C.F.R. § 120.110(p). DV reasonably fears its Application
will suffer the same fate as the applications of these other businesses which have had
their applications denied.
45. DV also fears that the Regulations and the SOP will cause its
Application to be delayed until all PPP loan funds are exhausted; therefore
potentially rendering any later request for judicial relief to be moot. The funds
allocated for PPP loans are to be extended on a first-come, first-served, basis until
all funds are exhausted, and no further funds are currently available. The SOP
provides that if the “Lender finds that the Applicant may have a business aspect of
a prurient sexual nature” the lender is to email the SBA for a “final Agency decision
on eligibility.” Given the pressures and workload placed on the SBA by the CARES
Act and the COVID-19 pandemic, DV reasonably fears either that no agency 15 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.16 Page 16 of 22
decision will be forthcoming while PPP funds remain, or that the SBA will decide
that DV is not eligible with no time for it to obtain relief while PPP funds remain.
46. In the event that DV is unable to obtain PPP loan it may lack the staff
and/or funds to reopen following the COVID-19 pandemic, resulting in the
permanent ruination of its business; the inability of DV to engaged in protected First
Amendment activity; and the inability to DV’s staff, entertainers, and customers to
continue engaging in or viewing protected First Amendment activity.
COUNT I – THE REGULATIONS AND SOP VIOLATE THE FIRST AMENDMENT
47. Plaintiff incorporates herein by reference each and every paragraph
above as though fully set forth herein.
48. In asserting its First Amendment challenges to the Regulations and
SOP, Plaintiff asserts not only its own rights but also the rights of its employees, and
the entertainers who perform on its premises.
49. The Regulations and the SOP violate and are contrary to the First
Amendment of the United States Constitution, on their face and as applied to
Plaintiff, for numerous and various reasons including but not limited to:
a. They are impermissible content-based restrictions on speech and
expression that cannot pass muster under strict scrutiny; 16 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.17 Page 17 of 22
b. They are impermissible content-neutral restrictions and expression that
cannot pass muster under intermediate scrutiny;
c. They fail to conform to the constitutional standards regarding
obscenity;
d. They violate the doctrine of unconstitutional conditions; and
e. They are unconstitutionally vague under the vagueness standards for
matters impacting speech and expression.
50. As a direct and proximate result of the unconstitutional aspects of the
Regulations and SOP and the Defendants’ and their delegates’ application of the
Regulations and the SOP against DV and its interests, DV, DV’s employees, and the
entertainers who perform on DV’s premises have suffered and will continue to suffer
irreparable injuries, including but not limited to financial ruin, business ruination,
and the inability to present protected First Amendment protected entertainment.
COUNT II – THE REGULATIONS AND SOP VIOLATE THE FIFTH AMENDMENT
51. Plaintiff incorporates herein by reference each and every paragraph
above as though fully set forth herein.
17 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.18 Page 18 of 22
52. The Regulations and the SOP violate and are contrary to the Fifth
Amendment of the United States Constitution, on their face and as applied to
Plaintiff, for numerous and various reasons including but not limited to:
a. They treat establishments presenting certain forms of performance
dance entertainment, such as Plaintiff, differently from establishments
presenting other forms of entertainment or no entertainment, for no
compelling, important, or rational reason;
b. They treat workers at establishments presenting certain forms of
performance dance entertainment, such as Plaintiff, differently from
workers at establishments presenting other forms of entertainment or
no entertainment, for no compelling, important, or rational reason;
c. They violate DV’s, its employees, and the entertainers’ who perform
on its premises rights under the occupational liberty component of the
Fifth Amendment.
d. They are impermissibly vague,
53. As a direct and proximate result of the unconstitutional aspects of the
Regulations and SOPS and the Defendants’ and their delegates’ application of the
Regulations and the SOP against DV and its interests, DV, DV’s employees, and the
entertainers who perform on DV’s premises have suffered and will continue to suffer 18 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.19 Page 19 of 22
irreparable injuries including but not limited to financial ruin, business ruination,
and the violation of the rights protected by the Fifth Amendment of the United States
Constitution.
COUNT III – THE INVALIDITY OF THE REGULATIONS AND SOP
54. Plaintiff incorporates herein by reference each and every paragraph
above as though fully set forth herein.
55. Because it is clear and unambiguous as to which businesses are eligible
for PPP loans under the CARES Act, including this Plaintiff, the SBA lacked
authority to promulgate regulations with restricted or otherwise ‘clarified’ what
businesses were eligible for PPP Loans.
56. As a direct and proximate result of the invalid portions of the
Regulations and SOP and the Defendants’ and their delegates’ application of the
Regulations and the SOP against DV and its interests, DV, DV’s employees, and the
entertainers who perform on DV’s premises have suffered and will continue to suffer
irreparable injuries including but not limited to financial ruin and business ruination.
PRAYER FOR RELIEF
WHEREFORE, for the reasons set forth above, Plaintiff respectfully requests
this Honorable Court:
19 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.20 Page 20 of 22
A. Issue orders granting a Temporary Restraining Order, Preliminary, and
Permanent Injunction enjoining the Defendants, as well as their employees, agent
and representatives, including the SBA’s lending banks, from enforcing or utilizing
in any fashion or manner whatsoever, 13 C.F.R. § 120.110(p) and SBA SOP 50 10
5(K), Ch. 2(III)(A)(15) in regard to loan applications made pursuant to the Payroll
Protection Program of the CARES Act;
B. As part of those orders, order the Defendants, as well as their
employees, agent and representatives, to notify, as expeditiously as possible, all SBA
lending banks to immediately discontinue utilizing 13 C.F.R. § 120.110(p) and/or
SBA SOP 50 10 5(K), Ch. 2(III)(A)(15) as criteria for determining PPP loan
application eligibility, and to fully process all PPP loan applications without
reference to such regulations and procedures;
C. Also as part of those orders, order the Defendants, as well as their
employees, agent and representatives, including the SBA’s lending banks, to restore
Plaintiff to its place in the application queue as it was at the time of application in
the event that its application has already been formally denied, derailed, or paused
because of the challenged regulations and procedures challenged here;
D. Enter an award of attorneys’ fees and costs against the Defendants and
in favor of the Plaintiff; and 20 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.21 Page 21 of 22
E. Enter such other and further relief as this Court may find to be
warranted in these circumstances.
Respectfully Submitted:
Dated: April 8, 2020 /s/ Matthew J. Hoffer BRADLEY J. SHAFER (MI P36604) Brad@BradShaferLaw.com MATTHEW J. HOFFER (MI P70495) Matt@BradShaferLaw.com SHAFER & ASSOCIATES, P.C. 3800 Capital City Boulevard, Suite 2 Lansing, Michigan 48906 (517) 886-6560 Counsel for Plaintiff
21 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.22 Page 22 of 22
VERIFICATION OF COMPLAINT
1. I, Jason C-H Mohney am the Managing Member of DV Diamond Club
of Flint.
2. I make this verification upon my personal knowledge, unless
specifically stated to the contrary.
3. I have reviewed the foregoing PLAINTIFF’S VERIFIED COMPLAINT
FOR EMEGENCY TEMPORARY RESTRAINING ORDER, PRELIMINARY AND
PERMANENT INJUNCTIVE RELIEF, AND DECLARATORY RELIEF (the
“Complaint”) in its entirety.
4. The factual statements in the Complaint are true and accurate to the best
of my information, knowledge and belief.
5. Except, any matters stated to be upon “information and belief” I verily
believe to be true.
I VERIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
Executed on: By: Jason C-H Mohney
22 | 2020-04-08 | [
"Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.1 Page 1 of 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DV DIAMOND CLUB OF FLINT, LLC d/b/a Little Darlings, Plaintiffs, Case No. Hon. v. UNITED STATES SMALL BUSINESS ADMINISTRATION; JOVITA CARRANZA, in her Official Capacity as Administrator of the Small Business Administration; UNITED STATES OF AMERICA; and STEVEN MNUCHIN, in his Official Capacity as United States Secretary of Treasury, Defendants. __________________________________________________________________ Bradley J. Shafer (P36604) Brad@BradShaferLaw.com Matthew J. Hoffer (P70495) Matt@BradShaferLaw.com SHAFER & ASSOCIATES, P.C.",
"3800 Capital City Blvd., Suite 2 Lansing, Michigan, 48906 517-886-6560 – Telephone Attorneys for Plaintiff DV Diamond Club of Flint, LLC __________________________________________________________________ PLAINTIFF’S VERIFIED COMPLAINT FOR EMERGENCY TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DECLARATORY RELIEF Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.2 Page 2 of 22 NOW COMES Plaintiff DV Diamond Club of Flint, LLC, and for its complaint, hereby states the following. INTRODUCTION 1. This is a civil action wherein Plaintiff seeks injunctive relief to restrain Defendants from discriminating against workers who are entitled to benefit from the Paycheck Protection Program (“PPP”) provisions of the recently-enacted Coronavirus, Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 §§ 1101- 03, 1107, 1114 (2020) (the “CARES Act”). The PPP is designed to quickly provide emergency relief to workers and businesses affected by the current COVID-19 pandemic following the President of the United States declaring a national emergency.",
"However, the emergency regulations promulgated by the Small Business Administration to implement the PPP, which in part adopt existing regulations formulated to implement narrower existing loan programs, improperly and unconstitutionally limit benefits to businesses and workers unquestionably engaged in First Amendment protected expression. The regulations and operating procedures, described more specifically below, conflict with the text of the PPP and violate business and workers’ fundamental rights under the First and Fifth Amendments of the United States Constitution, among others. 2 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.3 Page 3 of 22 2.",
"Because the funding of the PPP is to occur on a first-come-first-serve basis until the fund is depleted, Plaintiff brings this action on an emergency basis and will seek Temporary Restraining Order to prevent irreparable injury to its workers, its business, the entertainers who perform on its premises, and all their constitutional rights. JURISDICTION AND VENUE 3. Jurisdiction is conferred on this Court for the resolution of the substantial constitutional questions presented here by virtue of 28 U.S.C. § 1331; 28 U.S.C. § 1343(a)(1), (3), (4); 28 U.S.C. § 1346(a)(2); and 28 U.S.C. § 1361.",
"4. Authority for judicial review of agency action is further provided by 5 U.S.C. § 702, which states: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to 3 Case 4:20-cv-10899-MFL-DRG ECF No.",
"1 filed 04/08/20 PageID.4 Page 4 of 22 dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. 5. The prayer for declaratory relief is founded in part on Rule 57 of the Federal Rules of Civil Procedure as well as 28 U.S.C. § 2201, the latter of which provides that: “. . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. . . .” 6. The jurisdiction of the Court to grant injunctive relief is conferred upon this Court by Rule 65 of the Federal Rules of Civil Procedure, and by 28 U.S.C.",
"§ 2202, the latter of which provides: “Further necessary or proper relief on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.” 7. No other action, civil or criminal, is pending in any state court involving the Plaintiffs regarding the activities and events at issue here. 8. This suit is authorized by law to redress deprivations of rights, privileges, and immunities secured by the First and Fifth Amendments to the United States Constitution, and for declaratory and injunctive relief. 4 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.5 Page 5 of 22 9. Venue in this Court is appropriate as the Plaintiff is located in the Eastern District of Michigan; it has applied for a loan within the Eastern District; the Small Business Administration and the Treasury Department operate in the Eastern District; and the injury complained of and acts causing that injury have occurred and will continue to occur in the Eastern District of Michigan.",
"PARTIES 10. DV Diamond Club of Flint, LLC (“DV” or just “Plaintiff”) is a Michigan Limited Liability Company duly organized and authorized to conduct business in the State of Michigan. DV does business as Little Darlings at 2341 South Dort Highway in Flint, Michigan, which is located in Genesee County, State of Michigan. 11. Defendant United States Small Business Administration (the “SBA”) is an independent federal agency created and authorized pursuant to 15 U.S.C. § 633, et seq. The SBA maintains a branch office at 477 Michigan Avenue, Suite 1819, McNamara Building, Detroit, Michigan, which is within the Eastern District of Michigan. 5 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.6 Page 6 of 22 12. Defendant Jovita Carranza (“Carranza,” or the “Administrator”) is the Administrator of the SBA, a Cabinet-level position, and is sued in her official capacity only, as the Administrator of the SBA.",
"13. Authority to sue the Administrator is granted by 15 U.S.C. § 634(b), which states, in part: In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator may— (1) sue and be sued in any court of record of a State having general jurisdiction, or in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy . . . . 14. Steven Mnuchin (the “Secretary”) is the Secretary of the Treasury Department (the “Treasury”) of the United States of America, and is sued in his official capacity only as the Secretary of the Treasury Department. 15. Defendant currently does not seek monetary relief, and seeks only to restrain the actions of the Administrator and the Secretary in each of their official capacities.",
"16. The United States of America is a sovereign nation dedicated to the protection of life, liberty, and property, as set forth in the Bill of Rights and other provisions and amendments to the Constitution of the United States of America. 6 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.7 Page 7 of 22 RELEVANT STATUTORY PROVISIONS AND ADMINISTRATIVE REGULATIONS 17. The CARES Act was signed into law by the President of the United States on March 28, 2020, and is currently in effect. 18. A true and accurate copy of the Paycheck Protection Program (the “PPP”) provisions of the CARES Act is attached hereto as Exhibit A and hereby incorporated by reference as though fully set forth herein. 19. The PPP provisions of the CARES Act instruct the SBA to promulgate rules as follows: SEC. 1114.",
"EMERGENCY RULEMAKING AUTHORITY. Not later than 15 days after the date of the enactment of this Act, the Administrator shall issue regulations to carry out this title and the amendments made by this title without regard to the notice requirements under section 553(b) of title 5, Unites States Code. 20. The CARES Act specifically tasks the SBA with administering the PPP. The PPP further provides at 15 U.S.C. § 636(a)(36)(F)(ii): Delegated authority (I) In general For purposes of making covered loans for the purposes described in clause (i), a lender approved to make loans under this subsection shall be deemed to have been delegated authority by the Administrator to 7 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.8 Page 8 of 22 make and approve covered loans, subject to the provisions of this paragraph.",
"(II) Considerations In evaluating the eligibility of a borrower for a covered loan with the terms described in this paragraph, a lender shall consider whether the borrower-- (aa) was in operation on February 15, 2020; and (bb)(AA) had employees for whom the borrower paid salaries and payroll taxes; or (BB) paid independent contractors, as reported on a Form 1099-MISC. (iii) Additional lenders The authority to make loans under this paragraph shall be extended to additional lenders determined by the Administrator and the Secretary of the Treasury to have the necessary qualifications to process, close, disburse and service loans made with the guarantee of the Administration. 21.",
"Pursuant to the PPP, the SBA did, in fact, promulgate regulations on April 1, 2020. A true and accurate copy of Business Loan Program Temporary Changes; Paycheck Protection Program, RIN 3245-AH34 (Interim Final Rule Apr. 1, 2020) (the “SBA 3245”), as promulgated by the SBA, is attached hereto as Exhibit B and hereby incorporated by reference as though fully set forth herein. 22. SBA 3245 provides, in part: Businesses that are not eligible for PPP loans are identified in 13 CFR 120.110 and described further in SBA’s Standard Operating Procedure (SOP) 50 10, Subpart B, Chapter 2, except that nonprofit organizations authorized under the Act are eligible. (SOP 50 10 can be found at 8 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.9 Page 9 of 22 https://www.sba.gov/document/sop-50-10-5-lender-development-company- loan-programs.)",
"23. SBA 3245 further provides that PPP loans with be provided on a first- come, first-served basis until funds are exhausted. [See Ex. B, p.13]. The PPP has a total monetary limit of $349,000,000,000.00 ($349 Billion). 24. A true and accurate copy of Business Loan Program, 60 Fed. Reg. 64356 et seq. (proposed Dec. 15, 1995; to be codified at 13 C.F.R. § 120.110), as promulgated by the SBA, is attached hereto as Exhibit C and hereby incorporated by reference as though fully set forth herein. 25. A true and accurate copy of SBA Business Loan Ineligible Businesses Rule, 13 C.F.R § 120.110 (2020), as actually enacted, is attached hereto as Exhibit D and hereby incorporated by reference as though fully set forth herein. 26. 13 C.F.R § 120.110 provides, in part: The following types of Businesses are ineligible: * * * (p) Businesses which: (1) Present live performances of a prurient sexual nature; or (2) Derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the 9 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.10 Page 10 of 22 presentation of any depiction or display, of a prurient sexual nature; These provisions are hereinafter referred to simply as the “Regulations.” 27.",
"A true and accurate copy of SBA Standard Operating Procedure 50 10 5(K) – Lender and Development Company Loan Programs (Apr. 1, 2019), is attached hereto as Exhibit E and hereby incorporated by reference as though fully set forth herein. 28. The SBA Standard Operating Procedure 50 10 5(K) – Lender and Development Company Loan Programs (Apr. 1, 2019) provides, in part, at Ch.2 (III)(A): 15. Businesses Providing Prurient Sexual Material (13 CFR § 120.110 (p)) a. A business is not eligible for SBA assistance if: i. It presents live or recorded performances of a prurient sexual nature; or ii. It derives more than 5% of its gross revenue, directly or indirectly, through the sale of products, services or the presentation of any depictions or displays of a prurient sexual nature. b. SBA has determined that financing lawful activities of a prurient sexual nature is not in the public interest. The Lender must consider whether the nature and extent of the sexual component causes the business activity to be prurient. 10 Case 4:20-cv-10899-MFL-DRG ECF No.",
"1 filed 04/08/20 PageID.11 Page 11 of 22 c. If a Lender finds that the Applicant may have a business aspect of a prurient sexual nature, prior to submitting an application to the LGPC (non-delegated) or requesting a loan number (delegated), the Lender must document and submit the analysis and supporting documentation to the Associate General Counsel for Litigation at PSMReview@sba.gov for a final Agency decision on eligibility. Upon approval by SBA, the Lender may submit the application to the LGPC or may proceed to process the loan under its delegated authority. A non-delegated Lender must submit a copy of SBA’s approval with the application to the LGPC. A delegated Lender must retain its analysis, supporting documentation, and evidence of SBA’s approval in its loan file and must submit the analysis and supporting documentation to SBA with any request for guaranty purchase. SBA also may review such documentation when conducting Lender oversight activities.",
"These provisions are hereinafter referred to as the “SOP.” 29. Defendant SBA is responsible for formulating, issuing, and enforcing the Regulations and the SOP. 30. A true and accurate exemplar copy of the SBA Paycheck Protection Program Borrower Application Form 2483 (Apr. 2020) is attached hereto as Exhibit F, and hereby incorporated by reference as though fully set forth herein. 31. A true and accurate copy of the Hancock Whitney Bank Paycheck Protection Program Supplemental Information Form (current as of Apr. 5, 2020) is attached hereto as Exhibit G and hereby incorporated by reference as though fully set forth herein. 11 Case 4:20-cv-10899-MFL-DRG ECF No.",
"1 filed 04/08/20 PageID.12 Page 12 of 22 32. The First Amendment to the Unites States Constitution reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 33. The Fifth Amendment to the United States Constitution reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.",
"STATEMENT OF FACTS 34. DV is an alcohol-serving establishment open to the consenting adult public which is in the business of, has presented, and desires to continue to present in the future, male and female performance dance entertainment which is fully clothed and, at times for the female entertainers, topless. All of the entertainment provided by DV is non-obscene, appeals to healthy human interests and desires, and is in full compliance with the numerous licenses and permits held by DV. 12 Case 4:20-cv-10899-MFL-DRG ECF No.",
"1 filed 04/08/20 PageID.13 Page 13 of 22 35. None of the live performances at DV are unlawful or obscene. Neither DV nor any of the entertainers who have performed on its premises have ever been charged, let alone convicted, of any crimes of obscenity. 36. DV duly holds a Class C Liquor License issued by the Michigan Liquor Control Commission, with permits for Sunday Sales, Additional Bar and Specially Designated Merchant, and DV presents lawful entertainment in conformity therewith. 37. DV duly holds a business license to present “Adult Entertainment” issued by the City of Flint, Michigan, and DV presents lawful entertainment in conformity therewith.",
"38. DV duly holds a business license with a “dance permit” issues by the City of Flint Michigan, and DV presents lawful entertainment in conformity therewith. 39. DV is currently shuttered as a result of the emergency “shelter-in- place” executive order (Executive Order 2020-21) issued by the Governor of Michigan as a result of the COVID-19 pandemic. As a direct and proximate result of such state-ordered closure, DV has suffered significant business losses, but plans to reopen when legally permitted to do so. DV has been closed for business since 13 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.14 Page 14 of 22 at least 12:01am on March 24, 2020, and remains closed as of the date of this complaint is filed. 40. In order to mitigate its business losses and to provide monetary relief to its employees – since at least 75% of PPP loans are to be used for employee wages and salaries, DV sought out to apply for a PPP loan.",
"41. On or about April 6, 2020, DV submitted an application for a PPP loan through Oxford Bank, and specifically though its branch located at 1115 S. Lapeer Road, Lake Orion, State of Michigan; that being within the Eastern District of Michigan. Oxford Bank is an approved SBA Lender. A true and accurate copy of DV’s PPP loan application to Oxford Bank (the “Application”) is attached hereto as Exhibit H and is incorporated by reference as though fully set forth herein. 42. Pursuant to 15 U.S.C. § 636(a)(36)(F)(ii)(I), Oxford Bank is and will operate as a delegate of the SBA in the processing and approval or disapproval of the PPP loan sought by DV. 43. DV is fully qualified -- but for the Regulations and the SOP or the SBA’s application thereof -- to receive a PPP loan under all relevant statutes, regulations, and procedures.",
"However, DV reasonably believes that its Application will be rejected or fatally delayed due to the SOP and/or the Regulations. 14 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.15 Page 15 of 22 44. DV has learned that numerous other similar businesses, which presented non-obscene female performance dance entertainment of an “exotic,” “topless” and/or fully nude variety have had their applications for PPP loans rejected by their SBA lending banks, or derailed, on their bank’s belief that the business is disqualified by the Regulations and/or the SOP. Specifically, DV has learned that other similar establishments have had their applications for PPP loans rejected on the belief that the clubs present “live performances of a prurient sexual nature” within the meaning of 13 C.F.R. § 120.110(p).",
"DV reasonably fears its Application will suffer the same fate as the applications of these other businesses which have had their applications denied. 45. DV also fears that the Regulations and the SOP will cause its Application to be delayed until all PPP loan funds are exhausted; therefore potentially rendering any later request for judicial relief to be moot. The funds allocated for PPP loans are to be extended on a first-come, first-served, basis until all funds are exhausted, and no further funds are currently available.",
"The SOP provides that if the “Lender finds that the Applicant may have a business aspect of a prurient sexual nature” the lender is to email the SBA for a “final Agency decision on eligibility.” Given the pressures and workload placed on the SBA by the CARES Act and the COVID-19 pandemic, DV reasonably fears either that no agency 15 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.16 Page 16 of 22 decision will be forthcoming while PPP funds remain, or that the SBA will decide that DV is not eligible with no time for it to obtain relief while PPP funds remain. 46. In the event that DV is unable to obtain PPP loan it may lack the staff and/or funds to reopen following the COVID-19 pandemic, resulting in the permanent ruination of its business; the inability of DV to engaged in protected First Amendment activity; and the inability to DV’s staff, entertainers, and customers to continue engaging in or viewing protected First Amendment activity.",
"COUNT I – THE REGULATIONS AND SOP VIOLATE THE FIRST AMENDMENT 47. Plaintiff incorporates herein by reference each and every paragraph above as though fully set forth herein. 48. In asserting its First Amendment challenges to the Regulations and SOP, Plaintiff asserts not only its own rights but also the rights of its employees, and the entertainers who perform on its premises. 49. The Regulations and the SOP violate and are contrary to the First Amendment of the United States Constitution, on their face and as applied to Plaintiff, for numerous and various reasons including but not limited to: a. They are impermissible content-based restrictions on speech and expression that cannot pass muster under strict scrutiny; 16 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.17 Page 17 of 22 b. They are impermissible content-neutral restrictions and expression that cannot pass muster under intermediate scrutiny; c. They fail to conform to the constitutional standards regarding obscenity; d. They violate the doctrine of unconstitutional conditions; and e. They are unconstitutionally vague under the vagueness standards for matters impacting speech and expression. 50. As a direct and proximate result of the unconstitutional aspects of the Regulations and SOP and the Defendants’ and their delegates’ application of the Regulations and the SOP against DV and its interests, DV, DV’s employees, and the entertainers who perform on DV’s premises have suffered and will continue to suffer irreparable injuries, including but not limited to financial ruin, business ruination, and the inability to present protected First Amendment protected entertainment.",
"COUNT II – THE REGULATIONS AND SOP VIOLATE THE FIFTH AMENDMENT 51. Plaintiff incorporates herein by reference each and every paragraph above as though fully set forth herein. 17 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.18 Page 18 of 22 52. The Regulations and the SOP violate and are contrary to the Fifth Amendment of the United States Constitution, on their face and as applied to Plaintiff, for numerous and various reasons including but not limited to: a. They treat establishments presenting certain forms of performance dance entertainment, such as Plaintiff, differently from establishments presenting other forms of entertainment or no entertainment, for no compelling, important, or rational reason; b. They treat workers at establishments presenting certain forms of performance dance entertainment, such as Plaintiff, differently from workers at establishments presenting other forms of entertainment or no entertainment, for no compelling, important, or rational reason; c. They violate DV’s, its employees, and the entertainers’ who perform on its premises rights under the occupational liberty component of the Fifth Amendment. d. They are impermissibly vague, 53.",
"As a direct and proximate result of the unconstitutional aspects of the Regulations and SOPS and the Defendants’ and their delegates’ application of the Regulations and the SOP against DV and its interests, DV, DV’s employees, and the entertainers who perform on DV’s premises have suffered and will continue to suffer 18 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.19 Page 19 of 22 irreparable injuries including but not limited to financial ruin, business ruination, and the violation of the rights protected by the Fifth Amendment of the United States Constitution. COUNT III – THE INVALIDITY OF THE REGULATIONS AND SOP 54. Plaintiff incorporates herein by reference each and every paragraph above as though fully set forth herein. 55. Because it is clear and unambiguous as to which businesses are eligible for PPP loans under the CARES Act, including this Plaintiff, the SBA lacked authority to promulgate regulations with restricted or otherwise ‘clarified’ what businesses were eligible for PPP Loans. 56. As a direct and proximate result of the invalid portions of the Regulations and SOP and the Defendants’ and their delegates’ application of the Regulations and the SOP against DV and its interests, DV, DV’s employees, and the entertainers who perform on DV’s premises have suffered and will continue to suffer irreparable injuries including but not limited to financial ruin and business ruination.",
"PRAYER FOR RELIEF WHEREFORE, for the reasons set forth above, Plaintiff respectfully requests this Honorable Court: 19 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.20 Page 20 of 22 A. Issue orders granting a Temporary Restraining Order, Preliminary, and Permanent Injunction enjoining the Defendants, as well as their employees, agent and representatives, including the SBA’s lending banks, from enforcing or utilizing in any fashion or manner whatsoever, 13 C.F.R. § 120.110(p) and SBA SOP 50 10 5(K), Ch. 2(III)(A)(15) in regard to loan applications made pursuant to the Payroll Protection Program of the CARES Act; B. As part of those orders, order the Defendants, as well as their employees, agent and representatives, to notify, as expeditiously as possible, all SBA lending banks to immediately discontinue utilizing 13 C.F.R.",
"§ 120.110(p) and/or SBA SOP 50 10 5(K), Ch. 2(III)(A)(15) as criteria for determining PPP loan application eligibility, and to fully process all PPP loan applications without reference to such regulations and procedures; C. Also as part of those orders, order the Defendants, as well as their employees, agent and representatives, including the SBA’s lending banks, to restore Plaintiff to its place in the application queue as it was at the time of application in the event that its application has already been formally denied, derailed, or paused because of the challenged regulations and procedures challenged here; D. Enter an award of attorneys’ fees and costs against the Defendants and in favor of the Plaintiff; and 20 Case 4:20-cv-10899-MFL-DRG ECF No.",
"1 filed 04/08/20 PageID.21 Page 21 of 22 E. Enter such other and further relief as this Court may find to be warranted in these circumstances. Respectfully Submitted: Dated: April 8, 2020 /s/ Matthew J. Hoffer BRADLEY J. SHAFER (MI P36604) Brad@BradShaferLaw.com MATTHEW J. HOFFER (MI P70495) Matt@BradShaferLaw.com SHAFER & ASSOCIATES, P.C. 3800 Capital City Boulevard, Suite 2 Lansing, Michigan 48906 (517) 886-6560 Counsel for Plaintiff 21 Case 4:20-cv-10899-MFL-DRG ECF No. 1 filed 04/08/20 PageID.22 Page 22 of 22 VERIFICATION OF COMPLAINT 1. I, Jason C-H Mohney am the Managing Member of DV Diamond Club of Flint. 2. I make this verification upon my personal knowledge, unless specifically stated to the contrary.",
"3. I have reviewed the foregoing PLAINTIFF’S VERIFIED COMPLAINT FOR EMEGENCY TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DECLARATORY RELIEF (the “Complaint”) in its entirety. 4. The factual statements in the Complaint are true and accurate to the best of my information, knowledge and belief. 5. Except, any matters stated to be upon “information and belief” I verily believe to be true. I VERIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on: By: Jason C-H Mohney 22"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/129989870/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 STEVEN T. JAFFE, ESQ. Nevada Bar No. 7035 2 sjaffe@lawhjc.com ASHLIE L. SURUR, ESQ. 3 Nevada Bar No. 11290 asurur@lawhjc.com 4
5 HALL, JAFFE & CLAYTON, LLP 7425 Peak Drive 6 Las Vegas, Nevada 89128 (702) 316-4111 7 Fax (702) 316-4114
8 Attorneys for Lowe’s Home Centers, LLC
9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA
11 CYNTHIA POZESKY, an Individual, Case No.: 2:18-cv-02270-APG-VCF
12 Plaintiff, STIPULATION AND ORDER TO EXTEND DEADLINE TO RESPOND 13 vs. TO PLAINTIFF CYNTHIA POZESKY’S MOTION TO REMAND 14 LOWE’S HOME CENTERS, LLC, a North [ECF NO. 13] Carolina Limited Liability Company; DOES I- 15 X; and ROE BUSINESS ENTITIES XI-XX, inclusive, 16 Defendants. 17
18 The parties, by and through their attorneys of record, stipulate as follows:
19 1. On December 19, 2018, Plaintiff filed a Motion to Remand. ECF No. 13.
20 2. The current deadline to respond to the Motion to Remand [ECF No. 13] is
21 January 2, 2019.
22 3. Due to several intervening court holidays, Defendant Lowe’s Home Centers.
23 LLC requires additional time to fully and fairly prepare its response to the issues raised in the
24
1 1 Motion to Remand.
2 4. Accordingly, the parties agree there is good cause to extend the deadline to
3 respond to the Motion to Remand [ECF No. 13] from January 2, 2019 to January 7, 2019.
4 Dated: January 2, 2019. Dated: January 2, 2019.
5 HALL JAFFE & CLAYTON, LLP CLAGGETT & SYKES LAW FIRM
6 /S/Ashlie L. Surur /S/William Sykes Steven T. Jaffe, Esq. Sean K. Claggett, Esq. 7 Nevada Bar No. 7035 Nevada Bar No. 8407 Ashlie L. Surur, Esq. William T. Sykes, Esq. 8 Nevada Bar No. 11290 Nevada Bar No. 9916 7425 Peak Drive 4101 Meadows Lane, Suite 100 9 Las Vegas, Nevada 89128 Las Vegas, Nevada 89107 Attorneys for Lowe’s Home Centers, LLC Attorneys for Cynthia Pozesky 10
11 ORDER
12 IT IS SO ORDERED.
13 DATED:
14 _____________________________ UNITED STATES DISTRICT JUDGE 15 UNITED STATES DISTRICT COURTDated: JUDGEJanuary 3, 2019.
16
17
18
19
20
21
22
23
24
2 | 2019-01-03 | [
"1 STEVEN T. JAFFE, ESQ. Nevada Bar No. 7035 2 sjaffe@lawhjc.com ASHLIE L. SURUR, ESQ. 3 Nevada Bar No. 11290 asurur@lawhjc.com 4 5 HALL, JAFFE & CLAYTON, LLP 7425 Peak Drive 6 Las Vegas, Nevada 89128 (702) 316-4111 7 Fax (702) 316-4114 8 Attorneys for Lowe’s Home Centers, LLC 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 CYNTHIA POZESKY, an Individual, Case No. : 2:18-cv-02270-APG-VCF 12 Plaintiff, STIPULATION AND ORDER TO EXTEND DEADLINE TO RESPOND 13 vs. TO PLAINTIFF CYNTHIA POZESKY’S MOTION TO REMAND 14 LOWE’S HOME CENTERS, LLC, a North [ECF NO. 13] Carolina Limited Liability Company; DOES I- 15 X; and ROE BUSINESS ENTITIES XI-XX, inclusive, 16 Defendants.",
"17 18 The parties, by and through their attorneys of record, stipulate as follows: 19 1. On December 19, 2018, Plaintiff filed a Motion to Remand. ECF No. 13. 20 2. The current deadline to respond to the Motion to Remand [ECF No. 13] is 21 January 2, 2019. 22 3. Due to several intervening court holidays, Defendant Lowe’s Home Centers. 23 LLC requires additional time to fully and fairly prepare its response to the issues raised in the 24 1 1 Motion to Remand. 2 4. Accordingly, the parties agree there is good cause to extend the deadline to 3 respond to the Motion to Remand [ECF No.",
"13] from January 2, 2019 to January 7, 2019. 4 Dated: January 2, 2019. Dated: January 2, 2019. 5 HALL JAFFE & CLAYTON, LLP CLAGGETT & SYKES LAW FIRM 6 /S/Ashlie L. Surur /S/William Sykes Steven T. Jaffe, Esq. Sean K. Claggett, Esq. 7 Nevada Bar No. 7035 Nevada Bar No. 8407 Ashlie L. Surur, Esq. William T. Sykes, Esq. 8 Nevada Bar No. 11290 Nevada Bar No. 9916 7425 Peak Drive 4101 Meadows Lane, Suite 100 9 Las Vegas, Nevada 89128 Las Vegas, Nevada 89107 Attorneys for Lowe’s Home Centers, LLC Attorneys for Cynthia Pozesky 10 11 ORDER 12 IT IS SO ORDERED. 13 DATED: 14 _____________________________ UNITED STATES DISTRICT JUDGE 15 UNITED STATES DISTRICT COURTDated: JUDGEJanuary 3, 2019.",
"16 17 18 19 20 21 22 23 24 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/54631847/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion by Watkins, J., This is an appeal by the Commonwealth from the Order of the Court of Common Pleas, Criminal Divi*85sion, of Philadelphia County, suppressing all items of evidence which resulted from a search of the premises of the defendant-appellee, Janice Johnson. On the morning of August 15, 1970, the Philadelphia police, armed with a search and seizure warrant for a dwelling at 3100 J Mountain Drive, Philadelphia, arrived at the premises. The police had the premises under surveillance for approximately one-half hour when they observed a female approaching the residence. Officer Green followed the woman to the front door and when it was opened by the defendant to allow her entry, he, having his badge in his left hand and the search warrant in his right hand, approached the door and identified himself as a police officer. He was in civilian clothes. He was about to announce his purpose to search the premises when the defendant, having observed him, attempted to slam the door in his face. The officer put his foot on the threshold to prevent the door from being closed, announced his purpose and entered the premises and executed the warrant after which a search of the premises was conducted. The only question raised before us is whether or not the search and seizure was invalid because of the officer placing his foot on the threshold in order to prevent the slamming of the door and then announcing his purpose and entering the premises. The lower court relies on the recent cases of Commonwealth v. DeMichel, 442 Pa. 553, 277 A. 2d 159 (1971); and Commonwealth v. Newman, 429 Pa. 441, 240 A. 2d 795 (1968), where the results of the searches were suppressed holding that the entry was unreasonable and, therefore, the search unlawful. All of the cases Avhieh have turned on the entry of the officers into the premises for the purpose of executing a search warrant are based on the reasonableness of the conduct of the officers and have set forth *86exceptions to the requirements that police officers announce their identity and purpose and await a reasonable time before forcing entry into the premises. These exceptions are: (1) Facts known to the police officers making them virtually certain that the occupants of the premises know their identity and purpose, thus making any announcement a “useless gesture”; (2) Facts indicating the requirement if executed would cause palpable peril to the life and limb of police officers; (3) Facts known to the officers justifying a reasonable belief that evidence is about to be destroyed. In Commonwealth v. Newman, supra, our Supreme Court held that police officers must make an announcement of purpose and identity prior to forcible entry unless exigent circumstances would justify entry without proper announcement. The Supreme Court noted that “noncompliance [with the announcement requirement] might be excused where the police have valid grounds for being virtually certain that petitioner already knows their purpose.” Commonwealth v. Newman, supra at page 447, citing Miller v. United States, 357 U.S. 301 (1958) and Ker v. California, 374 U.S. 23 (1963). In the instant case, the officer had identified himself and was in view of the defendant and the door to the premises was open so that the requirement of waiting a reasonable time before forcing entry to the premises did not exist. The appellee by her conduct in attempting to slam the door after becoming aware of the identity of the police officer showed her intent to bar the entry rather than permit a peaceable entry. Her very action discloses her knowledge of the police purpose to either make an arrest or search the premises. Under these circumstances, for the officer to permit the door to be slammed and locked in his face and then announce his purpose and finally wait a minute or two *87before forcing entry would have been a “useless gesture”. Commonwealth v. McAleese, 214 Pa. Superior Ct. 228, 252 A. 2d 380 (1969); and United States v. Singleton, 439 F. 2d 381, 386 (3d Cir. 1971). It is clear that exigent circumstances existed in the instant case, when the defendant attempted to bar entry after she learned of his identity. The officer, therefore, was justified in placing his foot in the door prior to the announcement of his purpose. The additional exigent circumstance, in this case, was the probability of the destruction of the contraband sought when the defendant had knowledge of the raid. The order of the court below suppressing the evidence is reversed and the case remanded for trial. | 02-18-2022 | [
"Opinion by Watkins, J., This is an appeal by the Commonwealth from the Order of the Court of Common Pleas, Criminal Divi*85sion, of Philadelphia County, suppressing all items of evidence which resulted from a search of the premises of the defendant-appellee, Janice Johnson. On the morning of August 15, 1970, the Philadelphia police, armed with a search and seizure warrant for a dwelling at 3100 J Mountain Drive, Philadelphia, arrived at the premises. The police had the premises under surveillance for approximately one-half hour when they observed a female approaching the residence. Officer Green followed the woman to the front door and when it was opened by the defendant to allow her entry, he, having his badge in his left hand and the search warrant in his right hand, approached the door and identified himself as a police officer.",
"He was in civilian clothes. He was about to announce his purpose to search the premises when the defendant, having observed him, attempted to slam the door in his face. The officer put his foot on the threshold to prevent the door from being closed, announced his purpose and entered the premises and executed the warrant after which a search of the premises was conducted. The only question raised before us is whether or not the search and seizure was invalid because of the officer placing his foot on the threshold in order to prevent the slamming of the door and then announcing his purpose and entering the premises. The lower court relies on the recent cases of Commonwealth v. DeMichel, 442 Pa. 553, 277 A.",
"2d 159 (1971); and Commonwealth v. Newman, 429 Pa. 441, 240 A. 2d 795 (1968), where the results of the searches were suppressed holding that the entry was unreasonable and, therefore, the search unlawful. All of the cases Avhieh have turned on the entry of the officers into the premises for the purpose of executing a search warrant are based on the reasonableness of the conduct of the officers and have set forth *86exceptions to the requirements that police officers announce their identity and purpose and await a reasonable time before forcing entry into the premises. These exceptions are: (1) Facts known to the police officers making them virtually certain that the occupants of the premises know their identity and purpose, thus making any announcement a “useless gesture”; (2) Facts indicating the requirement if executed would cause palpable peril to the life and limb of police officers; (3) Facts known to the officers justifying a reasonable belief that evidence is about to be destroyed.",
"In Commonwealth v. Newman, supra, our Supreme Court held that police officers must make an announcement of purpose and identity prior to forcible entry unless exigent circumstances would justify entry without proper announcement. The Supreme Court noted that “noncompliance [with the announcement requirement] might be excused where the police have valid grounds for being virtually certain that petitioner already knows their purpose.” Commonwealth v. Newman, supra at page 447, citing Miller v. United States, 357 U.S. 301 (1958) and Ker v. California, 374 U.S. 23 (1963). In the instant case, the officer had identified himself and was in view of the defendant and the door to the premises was open so that the requirement of waiting a reasonable time before forcing entry to the premises did not exist. The appellee by her conduct in attempting to slam the door after becoming aware of the identity of the police officer showed her intent to bar the entry rather than permit a peaceable entry. Her very action discloses her knowledge of the police purpose to either make an arrest or search the premises. Under these circumstances, for the officer to permit the door to be slammed and locked in his face and then announce his purpose and finally wait a minute or two *87before forcing entry would have been a “useless gesture”. Commonwealth v. McAleese, 214 Pa. Superior Ct. 228, 252 A.",
"2d 380 (1969); and United States v. Singleton, 439 F. 2d 381, 386 (3d Cir. 1971). It is clear that exigent circumstances existed in the instant case, when the defendant attempted to bar entry after she learned of his identity. The officer, therefore, was justified in placing his foot in the door prior to the announcement of his purpose. The additional exigent circumstance, in this case, was the probability of the destruction of the contraband sought when the defendant had knowledge of the raid.",
"The order of the court below suppressing the evidence is reversed and the case remanded for trial."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6290448/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
CLARENCE E. McMANUS, Judge. 12Plaintiff filed suit against Sears, Roebuck and Co. for injuries she received when performing maintenance while an employee of Management Cleaning Services. During the course of the proceedings Liberty Mutual Insurance Company, the employer’s workers compensation carrier, filed a petition for intervention, alleging that it had paid to plaintiff $13,069.32 in indemnity benefits and $41,030.20 in medical benefits. After trial on the merits, the trial court found that plaintiff sustained a twelve month injury and it awarded total damages in the amount of $24,000.00. The court further found that intervenor was entitled to recover workers compensation and medical benefits, which exceeded the award of damages, subject to reduction for attorney fees to plaintiffs *901counsel. The trial court rendered judgment against Sears and in favor of Liberty-Mutual in the amount of $16,000.00 and for plaintiffs counsel in the amount of $8,000.00. Plaintiff appeals from this judgment of the trial court, alleging that the trial court erred in failing to find that she was totally disabled as a result of her injuries and that the quantum awards was inadequate. Defendant, Sears filed an answer, alleging that the trial court erred in finding liability for the accident. For the reasons that follow, we affirm the decision of the trial court. | {The Accident The accident occurred on May 10, 2002. Carl Crittenden, employed by Sears as a shipping clerk associate, testified that he was moving a cart loaded with various boxes of merchandise from the shipping area to the sales floor. The boxes were placed on a flat that was approximately 2/£ feet wide and 4 feet long. The flat had four wheels and a handle in the front middle, similar to a child’s wagon. There were no sides on the flat. The flat was loaded approximately four feet high with boxes of various sizes; the heavier ones located on the bottom and the lighter ones on the top. There was no strap of any kind securing the boxes to the flat. There was an aisle from the receiving area to the sales floor. Partway down the aisle was an opening with two doors. Located at the two doors was a threshold, and the floor on the sales area side of the threshold was about1/1 or5,8 inch higher than the floor on the other side of the threshold into the receiving area. Near to the doors on the sales floor side, to the left, was a corridor leading into the bathrooms. The door to the ladies room was in the corridor, approximately two feet from the aisle. Mr. Crittenden testified that on the date in question he was pulling the flat into the sales area while another Sears’ employee, Bobby Cosgrove, held the doors for him. He was in front of the flat, facing away with the flat behind him. He cleared the front wheels, and then the back wheels over the threshold. After the back wheels cleared, he heard something hit the floor. He stopped the flat, and noticed that a box had fallen off so he picked it up. Mr. Cosgrove picked up one or two boxes on the other side of the flat. After he picked up the box, Mr. Crittenden saw the plaintiff in the bathroom corridor on the other side of the flat, (on Mr. Cosgrove’s side). At first she did not say anything, so he assumed she had not |4been hit. She then told him that she was hit by the boxes, to which he responded that he did not stack the flat. At trial Mr. Crittenden stated that he did not know which of the boxes fell off or where they were located on the flat. After plaintiff stated that she was hit by the boxes, Mr. Cosgrove told her to fill out an accident report. Mr. Crittenden stated that he did not fill out an accident report, and no one from Sears asked him what had happened. Plaintiff testified that on that date of the accident she held three jobs, one of them being with Management Cleaning Controls. Her duties were to clean various places in the store, including the Ladies and Men’s room near the shipping and receiving area. On the date of the accident, she had finished cleaning the ladies room, and was starting to pull her cart, on the other side of the ladies room door from the aisle, when she saw Mr. Crittenden. She stopped, about one foot from the aisle to allow him to pass. She had her back to the hallway. Three boxes came off the flat and struck on her back and calves. Two other boxes fell, but did not strike her. She had initial pain from the blow, but did not experience any lingering pain that day. *902Ms. Ennis stated that she went to the security office and filled out incident forms, one for Sears and one for Management Cleaning and then, because she had finished, she left the store. The next morning when she awoke, she experienced pain, starting at the belt line in her back and traveling down her left leg into her calf area. At the time of the accident, in addition to her job with Management Cleaning, she was also employed part time by the Jefferson Parish School Board as a food worker, and as a nighttime sitter for an elderly gentleman. Walter Dominique, Loss Prevention Manager for Sears, took plaintiffs’ statement. He asked her if she needed medical help, to which she responded that she did not. She was upset because Mr. Critten-den had not apologized to her. Mr. Dominique then spoke with Mr. Crittenden, who stated that he did not see a box | Bfall, but that he did see the box on the floor. He also spoke with Mr. Cosgrove, but does not recall if Cosgrove told him how many boxes fell. Mr. Dominique stated that Sears had a safety manual, but that it did not instruct on how to load a flat. Margot Lerille testified that she worked in loss prevention at the time of the accident. She opened the store doors in the morning, and would talk to plaintiff. After the accident plaintiff spoke with her and said that she (plaintiff) was not really hurt, but was upset because Mr. Crittenden did not apologize.
The Injury
Plaintiff initially sought treatment with her internist, Dr. Nguyen, on May 16, 2002, who ordered a CT scan. The test was conducted on May 30, 2002, and showed multilevel degeneration at L4-5 and L5-S1, with spondylolisthesis at L4-5 and stenosis of the central canal. Dr. Nguyen diagnosed post contusion low back pain, degenerative low back disease, grade I spondylolisthesis and spinal stenosis. Plaintiff was prescribed medication and physical therapy. She was told to stay out of work for four weeks, except her sedentary sitting job. Plaintiff testified that she went to the prescribed therapy, but did not improve. On August 13, 2002, she began treatment with Dr. Kewalramani, a neurologist. At that time, she complained of pain and discomfort in the lumbar region with intermittent radiation along the lower extremities. He diagnosed lumbar musculi-gamentous pain syndrome and lumbar mechanical dysfunction. He prescribed pain medication, and heat packs, and scheduled a follow-up visit. His report of that visit states that “Based on history provided by the patient onset of her problems was around May 10, 2002 when she was working and multiple boxes fell from a flat cart and struck her.” During the course of her treatment with Dr. Kewalramani, plaintiff also underwent an EMG and nerve conduction study. The results were consistent with | filumbar radiculopathy. Dr. Kewalramani also considered the result of the MRI previously conducted. As of March, 2003, plaintiff continued to be symptomatic, and therefore Dr. Kewalramani recommended that she consult a neurosurgeon. In June of 2003, plaintiff consulted with Dr. Stephen Pribil, a neurosurgeon. He viewed the MRI results and diagnosed Grade 1 spondylolysthesis at L4-5 with very severe lumbar stenosis, and disc herniation and collapse at L5-S1. He recommended that plaintiff undergo a lumbar interbody fusion at L4-5 and S-l levels. The surgery was performed. At six months post surgery, on February 3, 2004, Dr. Pribil’s examination revealed that the plaintiff complained of achiness, stiffness and soreness. Her strength was good. He qualified her totally temporarily dis-*903abler! for six additional months. At eleven months post surgery, plaintiff complained of some back pain, but no more leg pain. Dr. Pribil scheduled a Functional Capacity Examination. On August 31, 2004, Dr. Pribil noted that plaintiff was a little over one year post surgery, and that the results of the surgery were good. The FCE showed that she could lift 20 pounds, and that she should limit twists, bends and stoops. Dr. Pribil concluded that plaintiff had reached maximum medical improvement, and he released her to light duty. He opined that she could not return to her previous employment with the cleaning service. Dr. Pribil’s reports introduced at trial do not link the necessity for surgery with the accident at Sears, although at trial plaintiff testified that Dr. Pribil told her the surgery was necessary because of the injuries sustained in the accident. Dr. Nutik performed an Independent Medical Examination of plaintiff and reviewed reports sent to him. He concluded that, based on the history plaintiff gave him, that she sustained a mild soft tissue injury. In his report, Dr. Nutik stated that it was his understanding that the boxes weighed less than seven pounds. However, there is no evidence to show the size and weight of the boxes at issue. 17Pr. Nutik did note that the plaintiff did not fall when she was struck by the boxes, and he opined that without falling, he would not have anticipated any involvement at the low back. At trial, defendant introduced a medical history intake form that plaintiff filled out in February of 2000, almost two years before the accident. On the form, plaintiff checked that she experienced back pain. Margot Lerille testified that sometimes when she would see the plaintiff coming to work, plaintiff would walk differently, “crooked with a little limp.” On those occasions, Ms. Lerille would inquire about plaintiffs back. Plaintiff testified at trial that the pain experienced was just soreness and fatigue from manual labor, and not a resulting from any injury.
Appeal
After trial on the merits, the court found that Sears was liable for the plaintiffs injury, stating that “Mr. Carl Critten-den testified that boxes would not fall off the cart if properly stacked, which is also a matter of common sense.” In answer to this appeal, Sears alleges that the trial court erred in finding that it was liable for the accident. Sears argues that there is no liability because the accident was inevitable or unavoidable, and further that it breached no duty to plaintiff. LSA-C.C. art. 2315 provides in pertinent part that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” LSA-C.C. art. 2316 further states that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” However, the doctrine of avoidable or inevitable accident relieves a person of liability as long as that person shows that he was in no way to blame for the accident. Seals v. Morris, 410 So.2d 715 (La.1981); Nalle v. State Farm Fire & Cas. Co., 97-441 (La.App. 3 Cir. 10/8/97), 702 So.2d 854, writ denied, 97-2832 (La.2/13/98), 706 So.2d 994. While Mr. Crittenden testified that the flat was loaded correctly, he also stated that the flat was stacked four feet high, and that all the boxes were not the same size. He further admitted that the boxes were not secured to the flat in any way. Sears argues that Crittenden “followed all applicable safety policies in checking for the safety and security of the flat”, and that it was unavoidable that the boxes *904would fall. We do not agree. If the boxes were properly stacked and secured, they would not fall off the flat. We find no error in the trial court determination that Sears was liable for the accident. Plaintiffs appeal alleges that the trial court erred in concluding that she suffered only a twelve month soft tissue injury, and further that the trial court’s award of $24,000.00 in total damages is inadequate. The trial court found that, while the plaintiff was injured in the accident, that injury was a 12 month soft-tissue injury. In its judgment, the trial court stated that “This court can find no convincing evidence that the surgery which the plaintiff underwent on July 18, 2003 was causally related to the accident on May 10, 2002.” Plaintiff alleges that this finding is error; it was the accident at Sears that caused significant injuries to her back and left leg, and that her surgery and resulting damages were causally related to the accident. The Louisiana Supreme Court, in Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557, 561, set forth the appellate standard of review as follows: Louisiana courts of appeal apply the manifest error standard of review in civil cases. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the |flrecord establishes that the fact finder is clearly wrong or manifestly erroneous. In this appeal, plaintiff alleges that the trial court erred in finding that the Hous-ley presumption was inapplicable. Plaintiff argues that she had no symptoms prior to the accident, and that it was the accident that caused her asymptomatic degenerative low back disease to become symptomatic, and resulted in the necessity of surgery. In Housley v. Cerise, 579 So.2d 973 (La.1991), the Supreme Court held that a plaintiffs disability is presumed to have resulted from an accident, if: (1) the plaintiff was in good health before the accident; (2) that commencing with the accident, the symptoms of the plaintiffs disabling condition appeared and continuously manifested themselves afterwards; and (3) the medical evidence shows there is a “reasonable possibility” of a causal connection between the accident and the plaintiffs disabling condition. Id. at 980. The medical evidence presented at trial showed that plaintiff suffered from a degenerative disc disease that predated the accident in question. Plaintiffs initial treating physician ordered a CT scan which revealed gradual spondylolisthesis at L4-5 and significant degenerative changes, and resulted in his diagnosis of degenerative low back disease, grade I spondylolisthesis and spinal stenosis. The trial court considered the fact that plaintiff suffered back pain prior to the accident, as established by her own admission to Ms. Lerille and in a 2000 intake form. He also considered the various medical records that indicated the existence of the preexisting condition. He finally noted that there was no proof to a medical probability that the plaintiffs disc condition was caused by the accident. We find no error in this conclusion. We have reviewed the medical evidence submitted and find no evidence linking the plaintiffs disc injury and resultant surgery to the |inaccident at issue. Accordingly, plaintiff has not met her burden of proving that there is a “rea*905sonable possibility” of a casual connection between the accident and the plaintiffs disabling condition. Because we find no error in the trial court’s determination that plaintiff failed to prove that the accident necessitated the need for surgery, we further conclude that the trial court did not err in its award of damages. The standard for appellate review for abuse of discretion in the award of general damages is difficult to express and is necessarily non-specific. Youn v. Mantime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). In Youn, this court recognized that: [T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. The trial court awarded general damages of $24,000.00 for what it concluded was a 12 month soft tissue injury. We find that the award in this case is not beyond that which a rational trier of fact could assess in this case, and therefore we do not see an abuse of discretion in the trial court’s award. For the above discussed reasons, we affirm the decision of the trial court. Costs are to be borne equally be the parties.
AFFIRMED.
WICKER, J., concurs in part and assigns reasons. | 08-26-2021 | [
"CLARENCE E. McMANUS, Judge. 12Plaintiff filed suit against Sears, Roebuck and Co. for injuries she received when performing maintenance while an employee of Management Cleaning Services. During the course of the proceedings Liberty Mutual Insurance Company, the employer’s workers compensation carrier, filed a petition for intervention, alleging that it had paid to plaintiff $13,069.32 in indemnity benefits and $41,030.20 in medical benefits. After trial on the merits, the trial court found that plaintiff sustained a twelve month injury and it awarded total damages in the amount of $24,000.00. The court further found that intervenor was entitled to recover workers compensation and medical benefits, which exceeded the award of damages, subject to reduction for attorney fees to plaintiffs *901counsel. The trial court rendered judgment against Sears and in favor of Liberty-Mutual in the amount of $16,000.00 and for plaintiffs counsel in the amount of $8,000.00. Plaintiff appeals from this judgment of the trial court, alleging that the trial court erred in failing to find that she was totally disabled as a result of her injuries and that the quantum awards was inadequate. Defendant, Sears filed an answer, alleging that the trial court erred in finding liability for the accident.",
"For the reasons that follow, we affirm the decision of the trial court. | {The Accident The accident occurred on May 10, 2002. Carl Crittenden, employed by Sears as a shipping clerk associate, testified that he was moving a cart loaded with various boxes of merchandise from the shipping area to the sales floor. The boxes were placed on a flat that was approximately 2/£ feet wide and 4 feet long. The flat had four wheels and a handle in the front middle, similar to a child’s wagon. There were no sides on the flat. The flat was loaded approximately four feet high with boxes of various sizes; the heavier ones located on the bottom and the lighter ones on the top. There was no strap of any kind securing the boxes to the flat. There was an aisle from the receiving area to the sales floor. Partway down the aisle was an opening with two doors.",
"Located at the two doors was a threshold, and the floor on the sales area side of the threshold was about1/1 or5,8 inch higher than the floor on the other side of the threshold into the receiving area. Near to the doors on the sales floor side, to the left, was a corridor leading into the bathrooms. The door to the ladies room was in the corridor, approximately two feet from the aisle. Mr. Crittenden testified that on the date in question he was pulling the flat into the sales area while another Sears’ employee, Bobby Cosgrove, held the doors for him. He was in front of the flat, facing away with the flat behind him. He cleared the front wheels, and then the back wheels over the threshold. After the back wheels cleared, he heard something hit the floor. He stopped the flat, and noticed that a box had fallen off so he picked it up.",
"Mr. Cosgrove picked up one or two boxes on the other side of the flat. After he picked up the box, Mr. Crittenden saw the plaintiff in the bathroom corridor on the other side of the flat, (on Mr. Cosgrove’s side). At first she did not say anything, so he assumed she had not |4been hit. She then told him that she was hit by the boxes, to which he responded that he did not stack the flat. At trial Mr. Crittenden stated that he did not know which of the boxes fell off or where they were located on the flat. After plaintiff stated that she was hit by the boxes, Mr. Cosgrove told her to fill out an accident report.",
"Mr. Crittenden stated that he did not fill out an accident report, and no one from Sears asked him what had happened. Plaintiff testified that on that date of the accident she held three jobs, one of them being with Management Cleaning Controls. Her duties were to clean various places in the store, including the Ladies and Men’s room near the shipping and receiving area. On the date of the accident, she had finished cleaning the ladies room, and was starting to pull her cart, on the other side of the ladies room door from the aisle, when she saw Mr. Crittenden. She stopped, about one foot from the aisle to allow him to pass.",
"She had her back to the hallway. Three boxes came off the flat and struck on her back and calves. Two other boxes fell, but did not strike her. She had initial pain from the blow, but did not experience any lingering pain that day. *902Ms. Ennis stated that she went to the security office and filled out incident forms, one for Sears and one for Management Cleaning and then, because she had finished, she left the store. The next morning when she awoke, she experienced pain, starting at the belt line in her back and traveling down her left leg into her calf area. At the time of the accident, in addition to her job with Management Cleaning, she was also employed part time by the Jefferson Parish School Board as a food worker, and as a nighttime sitter for an elderly gentleman. Walter Dominique, Loss Prevention Manager for Sears, took plaintiffs’ statement. He asked her if she needed medical help, to which she responded that she did not. She was upset because Mr. Critten-den had not apologized to her. Mr. Dominique then spoke with Mr. Crittenden, who stated that he did not see a box | Bfall, but that he did see the box on the floor.",
"He also spoke with Mr. Cosgrove, but does not recall if Cosgrove told him how many boxes fell. Mr. Dominique stated that Sears had a safety manual, but that it did not instruct on how to load a flat. Margot Lerille testified that she worked in loss prevention at the time of the accident. She opened the store doors in the morning, and would talk to plaintiff. After the accident plaintiff spoke with her and said that she (plaintiff) was not really hurt, but was upset because Mr. Crittenden did not apologize. The Injury Plaintiff initially sought treatment with her internist, Dr. Nguyen, on May 16, 2002, who ordered a CT scan.",
"The test was conducted on May 30, 2002, and showed multilevel degeneration at L4-5 and L5-S1, with spondylolisthesis at L4-5 and stenosis of the central canal. Dr. Nguyen diagnosed post contusion low back pain, degenerative low back disease, grade I spondylolisthesis and spinal stenosis. Plaintiff was prescribed medication and physical therapy. She was told to stay out of work for four weeks, except her sedentary sitting job. Plaintiff testified that she went to the prescribed therapy, but did not improve. On August 13, 2002, she began treatment with Dr. Kewalramani, a neurologist. At that time, she complained of pain and discomfort in the lumbar region with intermittent radiation along the lower extremities. He diagnosed lumbar musculi-gamentous pain syndrome and lumbar mechanical dysfunction. He prescribed pain medication, and heat packs, and scheduled a follow-up visit. His report of that visit states that “Based on history provided by the patient onset of her problems was around May 10, 2002 when she was working and multiple boxes fell from a flat cart and struck her.” During the course of her treatment with Dr. Kewalramani, plaintiff also underwent an EMG and nerve conduction study.",
"The results were consistent with | filumbar radiculopathy. Dr. Kewalramani also considered the result of the MRI previously conducted. As of March, 2003, plaintiff continued to be symptomatic, and therefore Dr. Kewalramani recommended that she consult a neurosurgeon. In June of 2003, plaintiff consulted with Dr. Stephen Pribil, a neurosurgeon. He viewed the MRI results and diagnosed Grade 1 spondylolysthesis at L4-5 with very severe lumbar stenosis, and disc herniation and collapse at L5-S1. He recommended that plaintiff undergo a lumbar interbody fusion at L4-5 and S-l levels. The surgery was performed. At six months post surgery, on February 3, 2004, Dr. Pribil’s examination revealed that the plaintiff complained of achiness, stiffness and soreness.",
"Her strength was good. He qualified her totally temporarily dis-*903abler! for six additional months. At eleven months post surgery, plaintiff complained of some back pain, but no more leg pain. Dr. Pribil scheduled a Functional Capacity Examination. On August 31, 2004, Dr. Pribil noted that plaintiff was a little over one year post surgery, and that the results of the surgery were good. The FCE showed that she could lift 20 pounds, and that she should limit twists, bends and stoops.",
"Dr. Pribil concluded that plaintiff had reached maximum medical improvement, and he released her to light duty. He opined that she could not return to her previous employment with the cleaning service. Dr. Pribil’s reports introduced at trial do not link the necessity for surgery with the accident at Sears, although at trial plaintiff testified that Dr. Pribil told her the surgery was necessary because of the injuries sustained in the accident. Dr. Nutik performed an Independent Medical Examination of plaintiff and reviewed reports sent to him. He concluded that, based on the history plaintiff gave him, that she sustained a mild soft tissue injury. In his report, Dr. Nutik stated that it was his understanding that the boxes weighed less than seven pounds.",
"However, there is no evidence to show the size and weight of the boxes at issue. 17Pr. Nutik did note that the plaintiff did not fall when she was struck by the boxes, and he opined that without falling, he would not have anticipated any involvement at the low back. At trial, defendant introduced a medical history intake form that plaintiff filled out in February of 2000, almost two years before the accident. On the form, plaintiff checked that she experienced back pain. Margot Lerille testified that sometimes when she would see the plaintiff coming to work, plaintiff would walk differently, “crooked with a little limp.” On those occasions, Ms. Lerille would inquire about plaintiffs back. Plaintiff testified at trial that the pain experienced was just soreness and fatigue from manual labor, and not a resulting from any injury.",
"Appeal After trial on the merits, the court found that Sears was liable for the plaintiffs injury, stating that “Mr. Carl Critten-den testified that boxes would not fall off the cart if properly stacked, which is also a matter of common sense.” In answer to this appeal, Sears alleges that the trial court erred in finding that it was liable for the accident. Sears argues that there is no liability because the accident was inevitable or unavoidable, and further that it breached no duty to plaintiff. LSA-C.C. art. 2315 provides in pertinent part that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” LSA-C.C.",
"art. 2316 further states that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” However, the doctrine of avoidable or inevitable accident relieves a person of liability as long as that person shows that he was in no way to blame for the accident. Seals v. Morris, 410 So.2d 715 (La.1981); Nalle v. State Farm Fire & Cas.",
"Co., 97-441 (La.App. 3 Cir. 10/8/97), 702 So.2d 854, writ denied, 97-2832 (La.2/13/98), 706 So.2d 994. While Mr. Crittenden testified that the flat was loaded correctly, he also stated that the flat was stacked four feet high, and that all the boxes were not the same size. He further admitted that the boxes were not secured to the flat in any way. Sears argues that Crittenden “followed all applicable safety policies in checking for the safety and security of the flat”, and that it was unavoidable that the boxes *904would fall. We do not agree. If the boxes were properly stacked and secured, they would not fall off the flat. We find no error in the trial court determination that Sears was liable for the accident.",
"Plaintiffs appeal alleges that the trial court erred in concluding that she suffered only a twelve month soft tissue injury, and further that the trial court’s award of $24,000.00 in total damages is inadequate. The trial court found that, while the plaintiff was injured in the accident, that injury was a 12 month soft-tissue injury. In its judgment, the trial court stated that “This court can find no convincing evidence that the surgery which the plaintiff underwent on July 18, 2003 was causally related to the accident on May 10, 2002.” Plaintiff alleges that this finding is error; it was the accident at Sears that caused significant injuries to her back and left leg, and that her surgery and resulting damages were causally related to the accident. The Louisiana Supreme Court, in Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557, 561, set forth the appellate standard of review as follows: Louisiana courts of appeal apply the manifest error standard of review in civil cases.",
"Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the |flrecord establishes that the fact finder is clearly wrong or manifestly erroneous.",
"In this appeal, plaintiff alleges that the trial court erred in finding that the Hous-ley presumption was inapplicable. Plaintiff argues that she had no symptoms prior to the accident, and that it was the accident that caused her asymptomatic degenerative low back disease to become symptomatic, and resulted in the necessity of surgery. In Housley v. Cerise, 579 So.2d 973 (La.1991), the Supreme Court held that a plaintiffs disability is presumed to have resulted from an accident, if: (1) the plaintiff was in good health before the accident; (2) that commencing with the accident, the symptoms of the plaintiffs disabling condition appeared and continuously manifested themselves afterwards; and (3) the medical evidence shows there is a “reasonable possibility” of a causal connection between the accident and the plaintiffs disabling condition. Id.",
"at 980. The medical evidence presented at trial showed that plaintiff suffered from a degenerative disc disease that predated the accident in question. Plaintiffs initial treating physician ordered a CT scan which revealed gradual spondylolisthesis at L4-5 and significant degenerative changes, and resulted in his diagnosis of degenerative low back disease, grade I spondylolisthesis and spinal stenosis. The trial court considered the fact that plaintiff suffered back pain prior to the accident, as established by her own admission to Ms. Lerille and in a 2000 intake form. He also considered the various medical records that indicated the existence of the preexisting condition.",
"He finally noted that there was no proof to a medical probability that the plaintiffs disc condition was caused by the accident. We find no error in this conclusion. We have reviewed the medical evidence submitted and find no evidence linking the plaintiffs disc injury and resultant surgery to the |inaccident at issue. Accordingly, plaintiff has not met her burden of proving that there is a “rea*905sonable possibility” of a casual connection between the accident and the plaintiffs disabling condition. Because we find no error in the trial court’s determination that plaintiff failed to prove that the accident necessitated the need for surgery, we further conclude that the trial court did not err in its award of damages. The standard for appellate review for abuse of discretion in the award of general damages is difficult to express and is necessarily non-specific. Youn v. Mantime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). In Youn, this court recognized that: [T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case.",
"It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. The trial court awarded general damages of $24,000.00 for what it concluded was a 12 month soft tissue injury. We find that the award in this case is not beyond that which a rational trier of fact could assess in this case, and therefore we do not see an abuse of discretion in the trial court’s award. For the above discussed reasons, we affirm the decision of the trial court. Costs are to be borne equally be the parties. AFFIRMED.",
"WICKER, J., concurs in part and assigns reasons."
]
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Exhibit 10.4 Restricted Stock Unit Award
DATE: February 11, 2016 Date of Grant: 02/11/2016
TO: «Name» xxxxx Restricted Stock Units
Your Restricted Stock Unit Award is subject to all the terms and provisions of the Dover Corporation ("Dover") 2012 Equity and Cash Incentive Plan ("Plan"), which terms and provisions are expressly incorporated into and made a part of the award as if set forth in full herein. Capitalized terms used but not defined herein have the meanings ascribed to them in the Plan. A copy of the Plan can be found on www.dovercorporation.com/investorinformation.asp in SEC Filings, in the Proxy Statement filed on March 19, 2012 Appendix A. In addition, your Restricted Stock Unit Award is subject to the following: 1. A Restricted Stock Units is a bookkeeping entry on the books of Dover. No shares of Dover common stock shall be issued to you in respect of the Restricted Stock Unit Award until the restrictions have lapsed at the end of a Restricted Period. Within 30 days following the end of the Restricted Period, Dover shall issue shares of Common Stock in your name equal to the number of Restricted Stock Units that have vested during the Restricted Period less applicable tax withholding. In the event that your employment shall terminate prior to your vesting in the Restricted Stock Units, the Restricted Stock Units shall be forfeited.
2. You shall vest in the Restricted Stock Unit Award, and all restrictions thereon shall lapse, with respect to 33% of your Restricted Stock Units on March 15, 2017 (or the first trading thereafter if such date is not a trading day), with respect to 33% of your Restricted Stock Units on March 15, 2018 (or the first trading thereafter if such date is not a trading day) and with respect to 34% of your Restricted Stock Units on March 15, 2019 (or the first trading thereafter if such date is not a trading day), subject to the forfeiture provisions of the Plan. You must be an active employee of Dover or an affiliate at the end of the Restricted Period in order for your Restricted Shares to vest, with certain exceptions as provided in the Plan.
3. During the Restricted Period you shall not have any rights of a stockholder or the right to receive any dividends declared and other distributions paid with respect to the Restricted Stock Units. Within 30 days after the end of the Restricted Period you shall be paid all Dividend Equivalents with respect to the Restricted Stock Units that have vested.
4. You do not have any voting rights with respect to Restricted Stock Units.
5. As a condition of receiving your Restricted Stock Unit Award, you agree to be bound by the terms and conditions of the Dover Corporation Anti-hedging and Anti-pledging Policy and by any Clawback Policy to be adopted by Dover, as such policies may be in effect from time to time. The Anti-hedging and Anti-pledging Policy prohibits hedging or pledging any Dover equity securities held by you or certain designees, whether such Dover securities are, or have been, acquired under the Plan, another compensation plan sponsored by Dover, or otherwise. Please review the Anti-hedging and Anti-pledging Policy to make sure that you are in compliance. You may obtain a copy of the current version of the Anti-hedging, Anti-pledging, and any Clawback Policy to be adopted by Dover by contacting the Benefits Department at 630-541-1540.
6. For Non-US Employees, your Restricted Stock Unit Award is subject to the conditions of the Addendum for Non-US Employees.
7. Your Restricted Stock Unit Award is not transferable by you other than by will or the laws of descent and distribution and in accordance with the applicable terms and conditions of the Plan.
8. Dover reserves the right to amend, modify, or terminate the Plan at any time in its discretion without notice. | [
"[doverlogo.jpg] Exhibit 10.4 Restricted Stock Unit Award DATE: February 11, 2016 Date of Grant: 02/11/2016 TO: «Name» xxxxx Restricted Stock Units Your Restricted Stock Unit Award is subject to all the terms and provisions of the Dover Corporation (\"Dover\") 2012 Equity and Cash Incentive Plan (\"Plan\"), which terms and provisions are expressly incorporated into and made a part of the award as if set forth in full herein. Capitalized terms used but not defined herein have the meanings ascribed to them in the Plan. A copy of the Plan can be found on www.dovercorporation.com/investorinformation.asp in SEC Filings, in the Proxy Statement filed on March 19, 2012 Appendix A. In addition, your Restricted Stock Unit Award is subject to the following: 1. A Restricted Stock Units is a bookkeeping entry on the books of Dover.",
"No shares of Dover common stock shall be issued to you in respect of the Restricted Stock Unit Award until the restrictions have lapsed at the end of a Restricted Period. Within 30 days following the end of the Restricted Period, Dover shall issue shares of Common Stock in your name equal to the number of Restricted Stock Units that have vested during the Restricted Period less applicable tax withholding. In the event that your employment shall terminate prior to your vesting in the Restricted Stock Units, the Restricted Stock Units shall be forfeited. 2. You shall vest in the Restricted Stock Unit Award, and all restrictions thereon shall lapse, with respect to 33% of your Restricted Stock Units on March 15, 2017 (or the first trading thereafter if such date is not a trading day), with respect to 33% of your Restricted Stock Units on March 15, 2018 (or the first trading thereafter if such date is not a trading day) and with respect to 34% of your Restricted Stock Units on March 15, 2019 (or the first trading thereafter if such date is not a trading day), subject to the forfeiture provisions of the Plan. You must be an active employee of Dover or an affiliate at the end of the Restricted Period in order for your Restricted Shares to vest, with certain exceptions as provided in the Plan.",
"3. During the Restricted Period you shall not have any rights of a stockholder or the right to receive any dividends declared and other distributions paid with respect to the Restricted Stock Units. Within 30 days after the end of the Restricted Period you shall be paid all Dividend Equivalents with respect to the Restricted Stock Units that have vested. 4. You do not have any voting rights with respect to Restricted Stock Units. 5. As a condition of receiving your Restricted Stock Unit Award, you agree to be bound by the terms and conditions of the Dover Corporation Anti-hedging and Anti-pledging Policy and by any Clawback Policy to be adopted by Dover, as such policies may be in effect from time to time. The Anti-hedging and Anti-pledging Policy prohibits hedging or pledging any Dover equity securities held by you or certain designees, whether such Dover securities are, or have been, acquired under the Plan, another compensation plan sponsored by Dover, or otherwise.",
"Please review the Anti-hedging and Anti-pledging Policy to make sure that you are in compliance. You may obtain a copy of the current version of the Anti-hedging, Anti-pledging, and any Clawback Policy to be adopted by Dover by contacting the Benefits Department at 630-541-1540. 6. For Non-US Employees, your Restricted Stock Unit Award is subject to the conditions of the Addendum for Non-US Employees. 7. Your Restricted Stock Unit Award is not transferable by you other than by will or the laws of descent and distribution and in accordance with the applicable terms and conditions of the Plan. 8. Dover reserves the right to amend, modify, or terminate the Plan at any time in its discretion without notice."
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Name: Commission Regulation (EC) No 1626/2001 of 9 August 2001 fixing the representative prices and the additional import duties for molasses in the sugar sector Type: Regulation Subject Matter: EU finance; trade; prices; foodstuff Date Published: nan
Avis juridique important|32001R1626Commission Regulation (EC) No 1626/2001 of 9 August 2001 fixing the representative prices and the additional import duties for molasses in the sugar sector Official Journal L 216 , 10/08/2001 P. 0004 - 0005Commission Regulation (EC) No 1626/2001of 9 August 2001fixing the representative prices and the additional import duties for molasses in the sugar sectorTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the market in sugar(1),Having regard to Commission Regulation (EC) No 1422/95 of 23 June 1995 laying down detailed rules of application for imports of molasses in the sugar sector and amending Regulation (EEC) No 785/68(2), and in particular Articles 1(2) and 3(1) thereof,Whereas:(1) Regulation (EC) No 1422/95 stipulates that the cif import price for molasses, hereinafter referred to as the "representative price", should be set in accordance with Commission Regulation (EEC) No 785/68(3). That price should be fixed for the standard quality defined in Article 1 of the above Regulation.(2) The representative price for molasses is calculated at the frontier crossing point into the Community, in this case Amsterdam; that price must be based on the most favourable purchasing opportunities on the world market established on the basis of the quotations or prices on that market adjusted for any deviations from the standard quality. The standard quality for molasses is defined in Regulation (EEC) No 785/68.(3) When the most favourable purchasing opportunities on the world market are being established, account must be taken of all available information on offers on the world market, on the prices recorded on important third-country markets and on sales concluded in international trade of which the Commission is aware, either directly or through the Member States. Under Article 7 of Regulation (EEC) No 785/68, the Commission may for this purpose take an average of several prices as a basis, provided that this average is representative of actual market trends.(4) The information must be disregarded if the goods concerned are not of sound and fair marketable quality or if the price quoted in the offer relates only to a small quantity that is not representative of the market. Offer prices which can be regarded as not representative of actual market trends must also be disregarded.(5) If information on molasses of the standard quality is to be comparable, prices must, depending on the quality of the molasses offered, be increased or reduced in the light of the results achieved by applying Article 6 of Regulation (EEC) No 785/68.(6) A representative price may be left unchanged by way of exception for a limited period if the offer price which served as a basis for the previous calculation of the representative price is not available to the Commission and if the offer prices which are available and which appear not to be sufficiently representative of actual market trends would entail sudden and considerable changes in the representative price.(7) Where there is a difference between the trigger price for the product in question and the representative price, additional import duties should be fixed under the conditions set out in Article 3 of Regulation (EC) No 1422/95. Should the import duties be suspended pursuant to Article 5 of Regulation (EC) No 1422/95, specific amounts for these duties should be fixed.(8) Application of these provisions will have the effect of fixing the representative prices and the additional import duties for the products in question as set out in the Annex to this Regulation.(9) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,HAS ADOPTED THIS REGULATION:Article 1The representative prices and the additional duties applying to imports of the products referred to in Article 1 of Regulation (EC) No 1422/95 are fixed in the Annex hereto.Article 2This Regulation shall enter into force on 10 August 2001.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 9 August 2001.For the CommissionPhilippe BusquinMember of the Commission(1) OJ L 178, 30.6.2001, p. 1.(2) OJ L 141, 24.6.1995, p. 12.(3) OJ L 145, 27.6.1968, p. 12.ANNEXto the Commission Regulation of 9 August 2001 fixing the representative prices and additional import duties to imports of molasses in the sugar sector>TABLE> | nan | [
"Name: Commission Regulation (EC) No 1626/2001 of 9 August 2001 fixing the representative prices and the additional import duties for molasses in the sugar sector Type: Regulation Subject Matter: EU finance; trade; prices; foodstuff Date Published: nan Avis juridique important|32001R1626Commission Regulation (EC) No 1626/2001 of 9 August 2001 fixing the representative prices and the additional import duties for molasses in the sugar sector Official Journal L 216 , 10/08/2001 P. 0004 - 0005Commission Regulation (EC) No 1626/2001of 9 August 2001fixing the representative prices and the additional import duties for molasses in the sugar sectorTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the market in sugar(1),Having regard to Commission Regulation (EC) No 1422/95 of 23 June 1995 laying down detailed rules of application for imports of molasses in the sugar sector and amending Regulation (EEC) No 785/68(2), and in particular Articles 1(2) and 3(1) thereof,Whereas:(1) Regulation (EC) No 1422/95 stipulates that the cif import price for molasses, hereinafter referred to as the \"representative price\", should be set in accordance with Commission Regulation (EEC) No 785/68(3). That price should be fixed for the standard quality defined in Article 1 of the above Regulation. (2) The representative price for molasses is calculated at the frontier crossing point into the Community, in this case Amsterdam; that price must be based on the most favourable purchasing opportunities on the world market established on the basis of the quotations or prices on that market adjusted for any deviations from the standard quality.",
"The standard quality for molasses is defined in Regulation (EEC) No 785/68. (3) When the most favourable purchasing opportunities on the world market are being established, account must be taken of all available information on offers on the world market, on the prices recorded on important third-country markets and on sales concluded in international trade of which the Commission is aware, either directly or through the Member States. Under Article 7 of Regulation (EEC) No 785/68, the Commission may for this purpose take an average of several prices as a basis, provided that this average is representative of actual market trends.",
"(4) The information must be disregarded if the goods concerned are not of sound and fair marketable quality or if the price quoted in the offer relates only to a small quantity that is not representative of the market. Offer prices which can be regarded as not representative of actual market trends must also be disregarded. (5) If information on molasses of the standard quality is to be comparable, prices must, depending on the quality of the molasses offered, be increased or reduced in the light of the results achieved by applying Article 6 of Regulation (EEC) No 785/68. (6) A representative price may be left unchanged by way of exception for a limited period if the offer price which served as a basis for the previous calculation of the representative price is not available to the Commission and if the offer prices which are available and which appear not to be sufficiently representative of actual market trends would entail sudden and considerable changes in the representative price. (7) Where there is a difference between the trigger price for the product in question and the representative price, additional import duties should be fixed under the conditions set out in Article 3 of Regulation (EC) No 1422/95.",
"Should the import duties be suspended pursuant to Article 5 of Regulation (EC) No 1422/95, specific amounts for these duties should be fixed. (8) Application of these provisions will have the effect of fixing the representative prices and the additional import duties for the products in question as set out in the Annex to this Regulation. (9) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,HAS ADOPTED THIS REGULATION:Article 1The representative prices and the additional duties applying to imports of the products referred to in Article 1 of Regulation (EC) No 1422/95 are fixed in the Annex hereto.Article 2This Regulation shall enter into force on 10 August 2001.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 9 August 2001.For the CommissionPhilippe BusquinMember of the Commission(1) OJ L 178, 30.6.2001, p.",
"1. (2) OJ L 141, 24.6.1995, p. 12. (3) OJ L 145, 27.6.1968, p. 12.ANNEXto the Commission Regulation of 9 August 2001 fixing the representative prices and additional import duties to imports of molasses in the sugar sector>TABLE>"
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeals from judgments of the Superior Court for Thurston County, Nos. 93-1-01131-1 and 93-1-01132-0, Daniel J. Berschauer, J., entered February 15, 1994. Affirmed by unpublished opinion per Bridgewater, J., concurred in by Seinfeld, C. J., and Morgan, J. | 07-23-2022 | [
"Appeals from judgments of the Superior Court for Thurston County, Nos. 93-1-01131-1 and 93-1-01132-0, Daniel J. Berschauer, J., entered February 15, 1994. Affirmed by unpublished opinion per Bridgewater, J., concurred in by Seinfeld, C. J., and Morgan, J."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6882396/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ADVISORY ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This Advisory Action is in response to the claim set dated May 24, 2022.
Response to Arguments Applicant's arguments filed on May 24, 2022 have been fully considered but they are not persuasive. The Applicant argues: “These passages do not read on the claim feature of minimizing a number of vehicle transitions between sub-graphs. While the cited paragraph 7 describes sub-graphs and transformations between nodes, nothing in the reference appears to be concerned with minimizing a number of vehicle transitions. Paragraph 58 describes compressing map data that is sent to vehicles, which first has no bearing on the reduction of data sent by the vehicles and second similarly has no bearing on minimizing vehicle transitions. While paragraph 80 deals with load balancing, the goal of load balancing does nothing to suggest the means by which load balancing may be achieved.”
The Examiner has considered the Applicant’s arguments and respectfully traverses. The claims, as written and submitted on May 24, 2022, do not explicitly recite reducing data sent by vehicles. The claims merely recite “minimizing a number of vehicle transitions” and “a set of sub-graphs that balances a number of messages received from vehicles.” As cited in the previous rejection, Chen [0007] explicitly teaches partitioning a graph into a plurality of subgraphs. In the same reference, Chen [0080] discloses a data load balancing module that balances load across vehicles to ensure that requests to receive data from vehicles are uniformly distributed (i.e., balanced) across different vehicles. These paragraphs, in combination, teach the balancing of data received from vehicles within sub-graphs. Chen [0058] explicitly discloses minimizing the amount of data communicated with the vehicle, wherein the data is updated on a regular basis. The recitation of “communication with the vehicle” suggests communication to and from vehicles. Even if Chen [0058] is merely about communication to vehicles, the combination of Chen [0007] and [0080], as previously mentioned, discloses balancing data received from vehicles, achieved by partitioning a graph into a plurality of subgraphs. Considering the sheer definition of partitioning, it would be obvious to one having ordinary skill in the art that partitioning data into subgroups (i.e., partitioning a graph into sub-graphs) ultimately reduces the data received from vehicles, thereby minimizing a number of messages received from vehicles within each sub-graph.
The Applicant further argues: “A rejection must address each and every feature of the claims, taken as a whole, and the cited art fails to properly account for the step of "minimizing a number of vehicle transitions." The other cited art cannot cure this deficiency. The previously cited Hashimoto reference is cited to address features relating to the determination of a vehicle speed, while the newly cited reference Horiuchi reference is introduced to address features relating to determining that a traffic jam is present on one or more road segments. Neither reference deals with the partitioning of a road graph. It is therefore respectfully asserted that Ho, Hashimoto, Chen, and/or Horiuchi, taken alone or in any combination, fail to disclose or suggest minimizing a number of vehicle transitions between sub-graphs of the road graph to partition the road graph into a set of sub-graphs.”
The Examiner has considered the Applicant’s arguments and respectfully traverses. The disclosure of Hashimoto discusses data acquisition of a vehicle that travels on a road. Likewise, the present application claims that “edges of the road graph representing pairs of adjacent road segments at each intersection.” Both encompass a vehicle traveling on a road, therefore, Hashimoto is pertinent prior art. The disclosure of Horiuchi discusses road map data that includes intersection nodes and traffic congestion on a road segment, which correlates to the nodes and road segments described in the present application. Therefore, Horiuchi is pertinent prior art. The teachings of Hashimoto and Horiuchi are combined with Ho and Chen to teach “minimizing a number of vehicle transitions between sub-graphs of the road graph to partition the road graph into a set of sub-graphs,” in addition to other claimed features of the present application. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE T SU whose telephone number is (571)272-5326. The examiner can normally be reached Monday to Friday, 8:30AM - 5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANISS CHAD can be reached on (571)270-3832. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /S.T.S./Patent Examiner, Art Unit 3662 /ANISS CHAD/Supervisory Patent Examiner, Art Unit 3662 | 2022-06-18T22:33:49 | [
"ADVISORY ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This Advisory Action is in response to the claim set dated May 24, 2022. Response to Arguments Applicant's arguments filed on May 24, 2022 have been fully considered but they are not persuasive. The Applicant argues: “These passages do not read on the claim feature of minimizing a number of vehicle transitions between sub-graphs. While the cited paragraph 7 describes sub-graphs and transformations between nodes, nothing in the reference appears to be concerned with minimizing a number of vehicle transitions. Paragraph 58 describes compressing map data that is sent to vehicles, which first has no bearing on the reduction of data sent by the vehicles and second similarly has no bearing on minimizing vehicle transitions. While paragraph 80 deals with load balancing, the goal of load balancing does nothing to suggest the means by which load balancing may be achieved.” The Examiner has considered the Applicant’s arguments and respectfully traverses.",
"The claims, as written and submitted on May 24, 2022, do not explicitly recite reducing data sent by vehicles. The claims merely recite “minimizing a number of vehicle transitions” and “a set of sub-graphs that balances a number of messages received from vehicles.” As cited in the previous rejection, Chen [0007] explicitly teaches partitioning a graph into a plurality of subgraphs. In the same reference, Chen [0080] discloses a data load balancing module that balances load across vehicles to ensure that requests to receive data from vehicles are uniformly distributed (i.e., balanced) across different vehicles. These paragraphs, in combination, teach the balancing of data received from vehicles within sub-graphs. Chen [0058] explicitly discloses minimizing the amount of data communicated with the vehicle, wherein the data is updated on a regular basis.",
"The recitation of “communication with the vehicle” suggests communication to and from vehicles. Even if Chen [0058] is merely about communication to vehicles, the combination of Chen [0007] and [0080], as previously mentioned, discloses balancing data received from vehicles, achieved by partitioning a graph into a plurality of subgraphs. Considering the sheer definition of partitioning, it would be obvious to one having ordinary skill in the art that partitioning data into subgroups (i.e., partitioning a graph into sub-graphs) ultimately reduces the data received from vehicles, thereby minimizing a number of messages received from vehicles within each sub-graph. The Applicant further argues: “A rejection must address each and every feature of the claims, taken as a whole, and the cited art fails to properly account for the step of \"minimizing a number of vehicle transitions.\" The other cited art cannot cure this deficiency. The previously cited Hashimoto reference is cited to address features relating to the determination of a vehicle speed, while the newly cited reference Horiuchi reference is introduced to address features relating to determining that a traffic jam is present on one or more road segments.",
"Neither reference deals with the partitioning of a road graph. It is therefore respectfully asserted that Ho, Hashimoto, Chen, and/or Horiuchi, taken alone or in any combination, fail to disclose or suggest minimizing a number of vehicle transitions between sub-graphs of the road graph to partition the road graph into a set of sub-graphs.” The Examiner has considered the Applicant’s arguments and respectfully traverses. The disclosure of Hashimoto discusses data acquisition of a vehicle that travels on a road. Likewise, the present application claims that “edges of the road graph representing pairs of adjacent road segments at each intersection.” Both encompass a vehicle traveling on a road, therefore, Hashimoto is pertinent prior art.",
"The disclosure of Horiuchi discusses road map data that includes intersection nodes and traffic congestion on a road segment, which correlates to the nodes and road segments described in the present application. Therefore, Horiuchi is pertinent prior art. The teachings of Hashimoto and Horiuchi are combined with Ho and Chen to teach “minimizing a number of vehicle transitions between sub-graphs of the road graph to partition the road graph into a set of sub-graphs,” in addition to other claimed features of the present application. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE T SU whose telephone number is (571)272-5326.",
"The examiner can normally be reached Monday to Friday, 8:30AM - 5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANISS CHAD can be reached on (571)270-3832. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /S.T.S./Patent Examiner, Art Unit 3662 /ANISS CHAD/Supervisory Patent Examiner, Art Unit 3662"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Haney, J George Laurance was indebted to the plain tiff-in the sum of $55. Mitchell & Thompson owed Laurance §60. July 23, 1896, plaintiff began an action in justice’s court against Laurance by personal service . of summons,' wherein his name was written “Lawrenson,” to ’ recover the indebtedness above mentioned. On July 25th, a summons in garnishment, in the same action, was personally served upon Mitchell & Thompson, wherein the principal defendant was named as “George Lawrenson. ” On July 27% Laurance served upon the sheriff, the officer who served the summons in the principal action and the summons in garnishment, a claim for exemptions in the manner provided by law, and demanded that all property of every kind levied upon or attached by the sheriff, and particularly all moneys garnished in the hands of Mitchell & Thompson, belonging to him, be released as exempt. At the time of such demand Laurence was entitled to claim such money as exempt. *617After the summons in garnishment and the demand for exemption were served, Laurance demanded of Mitchell & Thompson the amount due him from them, and, after consulting counsel, and having been advised that plaintiff had no right to the money in their hands belonging to Laurance, Mitchell & Thompson paid the same to Laurance. On July 28th Laurance appeared in the main action, and moved to dismiss on the ground that his true name was George Laurance, and not George Lawrenson. The justice denied the motion, and permitted the record to be amended by changing the name of Lawrenson to that of Laurance. Thereupon the defendant agreed that plaintiff might have judgment for §79.20, and it was rendered accordingly. Mitchell & Thompson made default in answering the summons in garnishment. They admit that they knew Laurance, to whom they were indebted when they were served with the garnishment process, was personally served in the principal action, and that he was the person intended to be served in such action. Subsequently this action was commenced to recover of the garnishees the amount due from them to Laurance when they were garnished. Plaintiff was given judgment for §60 and costs, from which defendants appealed. The attachment of the defendant’s credit or property in the' possession of other persons, is the object intended and'effect produced by all garnishment proceedings. Such attachmen t must necessarily be subject to the laws relating to exemptions. The act providing for garnishments in justices’ courts expressly declares that nothing contained therein shall be construed to affect exemptions allowTed by law, but is silent as to the manner of securing the benefits of such exemptions. Laws 1893, c. 96. *618Hence the law relating to claims of exemptions in attachment cases is applicable to these garnishment proceedings. In all cases of attachment or levy upon personal property, notice must be given to the debtor, his attorney, agent, wife, child or person in possession; and the debtor or such other person for him must claim or demand the benefits of the exemptions within five days, after such notice, with certain exceptions not material to this appeal. Laws 1893 Chap, 19. The claim of Laurance was made in the manner and within the time prescribed by law, and certainly operated to exempt the indebtedness due him from the garnishees. His right to such indebtedness cannot be doubted; the only question involving any difficulty being whether the garnishees, having failed to answer the summons in garnishment, can, in this action, justify their payment of the money to the defendant, after having been garnished, on the ground that lie had properly claimed it as exempt. It is generally held to be the duty of a garnishee to set up the defendant’s right of exemption if the defense is known to him. 9 Enc. PI. & Prac. 834. Are the defendants precluded from doing so in this action because of their failure to answer the garnishment summons? We think not. The statute contains the following: “If the granishee fails to appear and answer, or if he fails to comply with the orders of the justice to deliver the property and pay the money owing to the court or give an undertaking to the plaintiff, with one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming as the court may direct, the plaintiff may proceed against him in an action in his own name, as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the *619plaintiff for the amount of the property and credits of every kind of the defendant in possession of the garnishee and for what shall appear to be owing' by him to the defendant, and for the costs of the proceedings against the garnishee.- If the plaintiff proceed against the garnishee by action for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff are satisfied by the garnishee, he may on motion be substituted as the plaintiff in the judgment.” Laws 1893, Chap. 96. So far as applicable to the case at bar, the statute provides that, “if the garnishee fails to appear and answer, the plaintiff may proceed against him in an action in his own name as in other cases.” The only effect of the garnishee’s default is to lay the foundation for an action, wherein his rights must be determined. The statute does not authorize the entry of any judgment upon his failure to appear and answer in the original action. Under substantially the same statute the supreme court of Kansas held that: “An order of a justice of the peace directing a garnishee to deliver property or pay money to the judgment creditor which the garnishee may have in his possession, belonging or owing to the judgment debtor, is not a final determination between the parties; and in an action subsequently brought against the garnishee by the judgment creditor to enforce such order a garnishee may answer, and show whether he had money or property in his possession belonging to the judgment debtor, or was indebted to him, and, if so, what the character of such property or indebtedness was, or any other fact affecting the question of his liability as garnishee; *620and that a garnishee may interpose the defense, and show that the property or money of the judgment debtor in his hands, or his indebtedness to such debtor is exempt by law, and cannot be subjected by garnishment to the payment of the judgment in favor of the judgment creditor.” Mull v. Jones, 33 Kan. 112; 5 Pac. 388. If an appearance by the garnishee, a trial of the truth of his answer, and an order requiring him to pay into court the amount found to be due from him to the defendant does not preclude the garnishee from showing in an action brought to recover that amount, that the indebtedness is exempt, certainly his mere failure to appear and answer in the original action should not have that effect. We think the defendants were entitled to show, in this action, that the amount due from them to Laurance became exempt by his timely demand upon the sheriff, and having done so, the circuit court should have rendered judgment in their favor for costs. The judgment of the circuit court is revérsed, and the case remanded with directions to enter judgment dismissing the action upon its merits, and in favor of defendants for costs. | 07-20-2022 | [
"Haney, J George Laurance was indebted to the plain tiff-in the sum of $55. Mitchell & Thompson owed Laurance §60. July 23, 1896, plaintiff began an action in justice’s court against Laurance by personal service . of summons,' wherein his name was written “Lawrenson,” to ’ recover the indebtedness above mentioned. On July 25th, a summons in garnishment, in the same action, was personally served upon Mitchell & Thompson, wherein the principal defendant was named as “George Lawrenson. ” On July 27% Laurance served upon the sheriff, the officer who served the summons in the principal action and the summons in garnishment, a claim for exemptions in the manner provided by law, and demanded that all property of every kind levied upon or attached by the sheriff, and particularly all moneys garnished in the hands of Mitchell & Thompson, belonging to him, be released as exempt.",
"At the time of such demand Laurence was entitled to claim such money as exempt. *617After the summons in garnishment and the demand for exemption were served, Laurance demanded of Mitchell & Thompson the amount due him from them, and, after consulting counsel, and having been advised that plaintiff had no right to the money in their hands belonging to Laurance, Mitchell & Thompson paid the same to Laurance. On July 28th Laurance appeared in the main action, and moved to dismiss on the ground that his true name was George Laurance, and not George Lawrenson. The justice denied the motion, and permitted the record to be amended by changing the name of Lawrenson to that of Laurance. Thereupon the defendant agreed that plaintiff might have judgment for §79.20, and it was rendered accordingly.",
"Mitchell & Thompson made default in answering the summons in garnishment. They admit that they knew Laurance, to whom they were indebted when they were served with the garnishment process, was personally served in the principal action, and that he was the person intended to be served in such action. Subsequently this action was commenced to recover of the garnishees the amount due from them to Laurance when they were garnished. Plaintiff was given judgment for §60 and costs, from which defendants appealed. The attachment of the defendant’s credit or property in the' possession of other persons, is the object intended and'effect produced by all garnishment proceedings. Such attachmen t must necessarily be subject to the laws relating to exemptions. The act providing for garnishments in justices’ courts expressly declares that nothing contained therein shall be construed to affect exemptions allowTed by law, but is silent as to the manner of securing the benefits of such exemptions.",
"Laws 1893, c. 96. *618Hence the law relating to claims of exemptions in attachment cases is applicable to these garnishment proceedings. In all cases of attachment or levy upon personal property, notice must be given to the debtor, his attorney, agent, wife, child or person in possession; and the debtor or such other person for him must claim or demand the benefits of the exemptions within five days, after such notice, with certain exceptions not material to this appeal. Laws 1893 Chap, 19. The claim of Laurance was made in the manner and within the time prescribed by law, and certainly operated to exempt the indebtedness due him from the garnishees. His right to such indebtedness cannot be doubted; the only question involving any difficulty being whether the garnishees, having failed to answer the summons in garnishment, can, in this action, justify their payment of the money to the defendant, after having been garnished, on the ground that lie had properly claimed it as exempt. It is generally held to be the duty of a garnishee to set up the defendant’s right of exemption if the defense is known to him.",
"9 Enc. PI. & Prac. 834. Are the defendants precluded from doing so in this action because of their failure to answer the garnishment summons? We think not. The statute contains the following: “If the granishee fails to appear and answer, or if he fails to comply with the orders of the justice to deliver the property and pay the money owing to the court or give an undertaking to the plaintiff, with one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming as the court may direct, the plaintiff may proceed against him in an action in his own name, as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the *619plaintiff for the amount of the property and credits of every kind of the defendant in possession of the garnishee and for what shall appear to be owing' by him to the defendant, and for the costs of the proceedings against the garnishee.- If the plaintiff proceed against the garnishee by action for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action.",
"The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff are satisfied by the garnishee, he may on motion be substituted as the plaintiff in the judgment.” Laws 1893, Chap. 96. So far as applicable to the case at bar, the statute provides that, “if the garnishee fails to appear and answer, the plaintiff may proceed against him in an action in his own name as in other cases.” The only effect of the garnishee’s default is to lay the foundation for an action, wherein his rights must be determined. The statute does not authorize the entry of any judgment upon his failure to appear and answer in the original action.",
"Under substantially the same statute the supreme court of Kansas held that: “An order of a justice of the peace directing a garnishee to deliver property or pay money to the judgment creditor which the garnishee may have in his possession, belonging or owing to the judgment debtor, is not a final determination between the parties; and in an action subsequently brought against the garnishee by the judgment creditor to enforce such order a garnishee may answer, and show whether he had money or property in his possession belonging to the judgment debtor, or was indebted to him, and, if so, what the character of such property or indebtedness was, or any other fact affecting the question of his liability as garnishee; *620and that a garnishee may interpose the defense, and show that the property or money of the judgment debtor in his hands, or his indebtedness to such debtor is exempt by law, and cannot be subjected by garnishment to the payment of the judgment in favor of the judgment creditor.” Mull v. Jones, 33 Kan. 112; 5 Pac.",
"388. If an appearance by the garnishee, a trial of the truth of his answer, and an order requiring him to pay into court the amount found to be due from him to the defendant does not preclude the garnishee from showing in an action brought to recover that amount, that the indebtedness is exempt, certainly his mere failure to appear and answer in the original action should not have that effect. We think the defendants were entitled to show, in this action, that the amount due from them to Laurance became exempt by his timely demand upon the sheriff, and having done so, the circuit court should have rendered judgment in their favor for costs. The judgment of the circuit court is revérsed, and the case remanded with directions to enter judgment dismissing the action upon its merits, and in favor of defendants for costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6685382/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 1 of 24
Warren Montgomery District Attorney 22"d Judicial District Washington - St. Tammany Parishes Alex L.M. Ducros 21454 Koop Drive, Suite 2G Te lephone : (98 5) 898-3 42 7 Assistant District Attorney, Civil Division Mandeville, Louisiana 7047 I Facsimile: (985) B67-5 124
June 13,2019
VIA EMAIL ONLY
Philip J. Kaplan Dylan Leach LRw OpT.ICES OF PHILIP J. KAPLAN Svrrn & FRwBR, LLC 3278 Wilshire Blvd., Suite 106 201 St. Charles Ave., Suite 3702 Los Angeles, CA 90010 New Orleans, LA 70110 Email : philipkaplanlaw@ email. com Email : dleach@smithfawer. com
Re Roger D. Magee v. Walter P. Reed, et al. EDLA Case No. 14-1986-ILRL-JVM
Dear Philip and Dylan,
Attached please find Defendant Walter P. Reed's, in his Former Offrcial Capacity as District Attorney for Washington and St. Tammany Parishes, State of Louisiana, First Set of Requests for Admissions, Interrogatories and Requests for Production of Documents Propounded to Plaintiff Roger Dale Magee.
Should you have any trouble opening the attached or any questions, please do not hesitate to contact me.
With kindest personal regards, I remain
Sincerely
Alex L.M. Ducros
Encls. Cc: Via Email Only (w/ Encls.) James Knight (iknieht@knightlawllc. com) Rick Simmons (rsimmons@halleymcnamara.com) Cary Menard (cmenard @2\da.com) Emily Couvillon (ecouvillon @22da.com) Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 2 of 24
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA u ROGER D. MAGEE CML ACTION NO.: 14-01986 u
VERSUS * JUDGE (SECTION "8") u IVAN L.R. LEMELLE WALTER P. REED, ET AL * * MAGTSTRATE (1): & JANET VAN MEERVELD ******tr************
rs IN HIS FORMER OFFICIAL CAPACITY FIRST SET OF REOUESTS FOR MISSIONS. INTERROGATORIE,S AND REOUESTS FOR THE PRODUCTION OF DOCUMENTS PROPOUNDED TO PLAINTIFF ROGER DALE MAGEE
TO: ROGER DALE MAGEE Through his attorneys ofrecord Philip J. Kaplan Dylan Leach Lew OpncES oF PHILIP J. KAPLAN SvnH & Fewrn, LLC 3278 Wilshire Blvd., Suite 106 201 St. Charles Ave., Suite 3702 Los Angeles, CA 90010 New Orleans, LA 70110 Email : philipkaplanlaw@ email.com Email : dleach@srnithfawer. com
NOW COMES Defendant, Walter P. Reed, in his former official capacity as district
attomey for the 22"d Judicial District, Parishes of Washington and St. Tammany (the "D.A." or
"Reed"), through its undersigned counsel, who propounds the following First Set of Requests for
Admissions, Interrogatories and Requests for Document Production (collectively, the
"Requests") to plaintiff Roger Dale Magee ("Magee"), which are to be answered completely in
accordance with the Federal Rules of Civil Procedure within thirty (30) days, which Requests are
to be deemed continuing. These Requests are additionally governed by the following definitions
and instructions.
Page I of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 3 of 24
DEFINITIONS INSTRI]CTIONS
1 The tenn "person" shall mean the plural as well as the singular and includes, without lirnitation, any individual, partnership, firm or corporation, lirnited liability company, limited liability partnership, association, joint venture, federal, state or local govemment agency or department or any other business, legal or govemmental entity.
2 The terms "you" and "your" shall mean the person to whom these Requests are directed.
a J The tenn oodocument" shall mean the original or a copy of any written, printed, typed, photocopied, photographic or graphic matter of any kind or bharacter, and any recorded materials, however produced or reproduced, in your possession or control or known by you to exist, including, without limiting the generality of the foregoing, all drafts, contracts, agreements, letters, diaries, calendars, day-timers, desk pads, corespondence, communications (as defined below), telegrams, teletypes, memoranda, notes, summaries, records, graphs, maps, charts, diagrams, plans, sketches, studies, reports, lists, minutes, brochures, pamphlets, circulars, press releases, entries in books of account, computer printouts, computer tapes, computer disks, computer storage andlor backup, microfilm, microfiche, tape recordings, photographs, motion pictures, videotapes, plats, diagrams, surveys, voice tapes or recordings relating or referring in any way to the subject matter of these Requests and all amendments, addenda, or attachments to those such documents. Copies of documents which differ in any way from the original, including drafts or copies bearing notations, are also included in the definition of the term document.
The term frdocument" shall also mean the original or a copy of any data stored electronically, in any.form or fashion, in your possession, custody or control or known by you to exist, including, without limiting the generality of the foregoing, draft and previous versions of documents, or data, including those but not limited to those defined or stored as follows:
a. On-Line Data Storage on Mainframes, Minicomputers, PC's, tablets or Laptops; b. Off-Line Data Storage, Backups and Archives, Floppy Diskettes, Zip Dives/Files, Tapes, Compact Disks or Diskettes, Laptops, Flash media, Palm-held devices, Tablet-devices, External Hard Drives or Other Removable Electronic Media; c. Data Storage Devices; d. Fixed Drives on Stand-Alone Personal Computers or Network Workstations; e. Programs and Utilities (necessary for the retrieval or processing of data and files); f. Maintenance of a Log of System Modifications; (} Copies of Software and Operating Manuals; b. h. E-Mail and text-messages; i. Word processing files, computer presentations (e.g., PowerPoint slides), stand- alone databases (e.g., Access), and spreadsheets (e.9., Excel); j. Databases; and k. Electronically stored research and/or reference literature and materials.
Page 2 of 20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 4 of 24
4. The tenn oocommunication" shall rnean the transrnission of infonnation from one person to another or in the presence of another whether written, oral, telephonic, electronic or by any other means, and shall be a document as defined above when recorded in writing or via means of audio or video recording, including, without limitation, letters, emails, faxes, text messages, voice memos, audio recordings, video footage.
5 The term "obligationtt or "contract" or "agreementtt shall mean a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee. Performance may consist of giving, doing, or not doing something.
6 The terms "relate to" and oorelating to" shall mean: consist of, refer to, indicate, support, evidence, reflect or be in any way basically or factually connected with this matter.
7. The terms "identifytt or t'identification" and o'describett or'(description"
L. When used in reference to an individual, shall mean to state his or her full name, present or last known home address and telephone number, business affiliation, business address, business telephone number, job title and description of duties;
b When used in reference to a corporation, shall mean to state its full legal name, its trade name (if any), its state of incorporation, and the address and telephone number of its principal place of business;
c. When used in reference to a person other than an individual or corporation, shall mean to state its fulI legal name, its trade name (if any), its organizational form, and the address and telephone number of its principal place of business;
d. When used in reference to a document, shall mean to state the type of document, date, author, addressee, title, its present location, the full name and business address and telephone number of its custodian, and the substance of the contents thereof. In lieu of identifying any document, copies thereof may be furnished;
e. When used in reference to an agreement or contract, shall mean to state the full name of each party to the agreement or contract, the date on which it was entered into, the place where it was perfected, its terms andlor conditions, its present location, the fulI name and business address and telephone number of its custodian, and the substance of the contents thereof. If the agreement or contract has been amended, this must be stated and the above information fumished on each such amendment. In lieu of identifying any agreement or contract, copies thereof may be fumished;
f. When used in reference to any act, occurrence, occasion, meeting, transaction, investigation, examination, expression or conduct (collectively,"act"), shall mean to set forth the event or events constituting such act, its location, the date and
Page 3 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 5 of 24
persons participating, including each such person's name, home address and telephone nurnber, business affiliation, business address and telephone nurnber, and occupation, present or involved, and the documents relating or referring in any way thereto, when used in reference to any discussion, conversation, communication, investigation, examination or statement (collectively, "discussion"), shall mean in addition to the foregoing to set forth the substance of the discussion.
8 Words of the masculine gender include the feminine and neuter gender, and the singular includes the plural (and vice versa).
9 The definitions set forth are expressly incorporated by reference and made aparL of each of the Requests set forth below.
10 Pursuant to the Federal Rules of Civil Procedure, this discovery is deemed continuing requiring supplemental responses thereto to be seasonally given in the event that information is discovered, acquired or becomes known to you which would require amendment or supplementation of the responses to these Requests in order for your responses to be proper, complete andlor truthful.
11. Answer each Request fully, regardless of whether your response is based on information actually or constructively available (1) to you personally or (2) to anyone acting on your behalf, including officers, representatives, accountants, attorneys, and any other person or firm known by any of the foregoing to possess or have access to the pertinent information or documsnts.
12 If you propose an objection to any Request, please state fully the grounds for the objection and the legal authority upon which you will rely in response to a Motion to Compel.
13. In this regard, if any Request is subject to objection on the basis of the assertion or claim of privilege or attomey work product, please specify the claimed basis for withholding the information, provide a statement of all circumstances which will be relied upon to support any such claim and the nature of the information withheld including, but not limited to, the following:
a. The author(s); b. The recipient(s); c. The sender; d. The date and tirne; e. File type (e.g.,letter, report, memorandum, chart, etc.) e. A description of the nature and subject matter of the document; and f. The basis or bases for the claim of privilege or other reason claimed for withholding or limiting disclosure.
Page 4 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 6 of 24
l4 If any document responsive to these Requests was, but is no longer, in your possesslon or custody or subject to its control, or in existence, state whether it (1) is missing or lost, (2) has been destroyed, (3) has been transferred, voluntarily or involuntarily, to others or (4) has been otherwise disposed of, and in each instance, explain the circumstances sumounding the disposition thereof, and state the date or approximate date of such disposition.
15 You are requested to organize your production of documents with reference to the Request in response to which the documents are produced.
16. Restate each Request in full prior to a response
17 You are requested to organize your production of documents with reference to the Request in respond to which the documents are provided.
18. Verify you have read and confirm your answers and objections to these interrogatories by signing the attached verification.
19. The term'olncident" means the plaintiff Magee's March 28 and March 31,2014 amests and resulting incarceration until his release subject to a plea agreement entered on July 7, 2014, which is the subject of this lawsuit.
20 The term "relevant period" means the period between January I,2009 and March 28, 2014.
2t. The term "medical services" shall mean any service provided by any health care provider.
22 The term "date" means the exact date of the occurrence mentioned or altematively the approximate date(s) if the exact date is unknown, under the condition that approximate dates provided are to be identified as such.
23 The term "location" means, unless otherwise noted, the exact municipal address if known. If unknown, please identify the state, parish (or county), and city (if such item occurred within a city limit) where the item referred to occurred.
Page 5 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 7 of 24
FIRST SET OF REOUESTS FOR ADMISSIONS
REOUEST FOR ADMISSIONS NO. 1
Please admit that you had no communications with representatives of the Federal Bureau
of Investigation (or "FBI") regarding Walter P. Reed prior to your release from the Washington
Parish Jail on July 7 ,2014.
REOUEST FOR IONS NO. 2
Please admit no Assistant District Attorney was present at the 12 hour hearing held on
March 31,2014.
REOUEST FOR ADMISSIONS NO. 3
Please admit you hired attorney John Allen to represent you in connection with your
March 28,2014 arrest.
REOUEST FOR MISSIONS NO. 4
Please admit Commissioner Dan Foil appointed an indigent defender to represent you at
the12 hour hearing held on March 31,2074.
REOUEST FOR ADMISSIONS N o. 5:
Please admit your attomey John Allen did not attend the 72 hour hearing held on March
31,2014 on your behalf.
REOUEST FOR ONS NO.6:
Please admit your attomey John Allen did not attend any hearing on your behalf relating
to your March 28,2014 arrest.
RE o UEST FOR ADMISSIONS N o1
Please admit you made no child support payments between September 13, 2011 and
March 28, 201 4 inclusive.
Page 6 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 8 of 24
FIRST SET OF RROGATORIES
INTERROGATORY NO. 1:
Please provide the following:
a. your fulI legal name, and any aliases or nicknames ever used by you;
b. your date of birth;
c. your place of birth;
d. your social security number;
e. your marital status (including full names of each spouse, and dates of all
marriages, dates of termination);
f. the names and dates of birth of all children, natural and adopted;
g. current address and previous residence addresses for the past ten years, indicating
dates for each;
h. the names and addresses of every high school, college, vocational and
professional school you have attended, showing beside each whether you
graduated or received any degree or certification, and the dates ofattendance;
i. your full employment history, including the names and addresses of each and
every employer, dates of employment by each, whether employment was full or
part-time, a description of the position and its duties, the average number of
weekly hours worked, and approximate wage or salary per hour, week or annum.
For any period of self-employ, please identify the custodian of and location of all
financial records related to such business pursuit.
PageT of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 9 of 24
INTERROGATORY NO.2:
Please identify all representatives of the FBI you allegedly provided information to with
the "several years" you reference in fl 4(a) of your First Amended Complaint for Damages,
Declaratory Relief, and Injunctive Relief filed on August 29,2014 (Rec. Doc.23) (the
"Amended Cornplaint"), along with the dates of all meetings, calls andlor other communication
with same.
INTERROGATORY NO. 3:
Please identify the "personal injury referrals" you reference in 'lJ 4 of your Amended
Complaint, along with the details of the "settlement of those matters," "issues about how those
case were settled," and "questions about how and to whom settlement proceeds were
distributed," which you allegedly provided to the FBI.
INTERROGATORY NO.4:
Identify all sources of the quoted excerpts appearing in your Amended Complain,
whether there are recordings of same, and identify the location of same; specifically, those
alleged quoted excerpts appearing in:
(a) Paragraph4(a);
(b) Paragraph 5(a);
(c) Paragraph 22;and
(d) Paragraph23.
INTERROGATORY NO. 5:
Identify all sources of the information you were allegedly "informed" of supporting your
allegation in fl 5(e) of your Amended Complaint that "Cox, Reed, and Sheriff Seal had
knowledge of the above Order to Recall Body Attachment ('Recall Order'), particularly in light
Page 8 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 10 of 24
of Seal's involvement and partnership with the District Attomey's Office in a 'roundup'--qf parents who were in ."
INTERROGATORY NO. 6:
Identify all sources of the information you were allegedly "informed" of supporting your
allegations in tf 5(f) of your Amended Cornplaint wherein you allege that the issuance of the
Recall Order was "was engineered by Reed, through the channels of the District Attomey's
Office, and by Cox."
INTERROGATORY NO. 7:
Identify all sources of the information you were allegedly "informed" of supporting your
allegations in fl 5(g) of your Amended Complaint wherein you allege that you were "protected by
the Recall Order" issued by the coufi in Arkansas despite your presence in Louisiana - including
the specific person(s) you spoke with and the documents you were provided (if any).
INTERROGATORY N o. 8:
Identify all persons present at the home of Ruby Magee Walley at the time of your arrest
on March 28,2074, including their ages at the time.
INTERROGATORY NO. 9:
Identify the cell phone number and cell-phone carrier you were using when you allegedly
received a call from Jerry Wayne Cox's daughter, Debbie Cox, on the day after your release, as
referenced inl24 of your Amended Complaint.
INTERROGATORY NO. 10:
Please identify the full names, last known addresses, telephone numbers and email
addresses of all persons whom you may call as a witness at the trial of this matter, including and
identifying all expert witnesses (rnedical or otherwise) in support of your loss of consofiium
Page9 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 11 of 24
claim, and briefly state the facts and/or opinions to which you anticipate each witness will
testify.
INTERROGATORY NO. 11:
Please identify your employers for the last ten (10) years and, for each job, identify the
following: (a) the dates of your employment; (b) position(s) held; (c) the nature of work; (d) the
name of your supervisor(s); (e) your salary or hourly wage; and (f) the reason(s) for leaving.
INTERROGATORY NO. 12:
Please identify all members of your "family" and "criminal defense counsel" who you
allege "made a number of requests for bail" during the Incident, specifically who refused them,
and who specifically used the phrase "DA Hold" during the Incident as referenced in I22 of your Amended Complaint
INTERROGATORY NO. 13:
Please state if you have ever claimed to any local, state or federal agency, that you ever
suffered from any mental or physical disability, and if so state: (a) what the disability claimed
was; (b) the agency/-ies to which you made such claim; (c) the dates each claim was submitted;
and (d) the reason(s) you made such claim(s).
INTERROGATORY NO. 14:
Please state if whether you are or have ever been a Medicare beneficiary or eligible to
receive Medicare benefits or Medicaid benefits. If your answer is in the affirmative, please state:
(a) when you became eligible for Medicare or Medicaid; (b) reason for Medicare or Medicaid
eligibility; (c) your HICN No.; (d) have you or anyone on your behalf, including your attomey,
contacted the Centers for Medicare & Medicaid Services (CMS) and provided notice of the
alleged incident in accordance with 42 C.F.R. Section 411.25; (e) advise the date of the
Page 10 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 12 of 24
notification given to CMS noted in section d above; and (f) who is your Medicare Advantage
Plan provider? If the answer is negative, please identify the dates you applied for Medicaid
benefits, along with the dates you received notice of denial of each.
INTERROGATORY NO. 15:
Please state if whether you are or have ever been eligible to receive Social Security Administration ("SSA") disability benefits. If your answer is in the affirmative, please state:
(a) date you became eligible for disability; (b) reason for your disability eligibility; (c) your
disability claim number; (d) how much do you receive in disability payments monthly? If your
answer to the above question is negative, please identify the dates you applied for Medicaid
benefits, along with the dates you received notice of denial of each.
Page 11 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 13 of 24
SET OF UESTS FOR
REOUEST FOR PRODUCTION NO. 1:
Please produce copies of all documents produced to you by any parly or non-pafiy, or
produced by you, in connection with discovery in this matter following the D.A.'s dismissal,
including, without limitation: (1) written discovery requests (including subpoenas and/or
subpoenas duces tecum); (2) written discovery responses; (3) all documents produced by you or
any party, third-party and/or non-party in response to written discovery requests, oral requests
(e.g., during depositions/hearings) and/or subpoenas duces tecum; and (4) deposition transcripts
and exhibits thereto.
REOUEST FOR PRODU CTION NO. 2:
Please produce a copy of the CD produced to you by the Washington Parish Sheriffls
Office (the "WPSO") in response to discovery requests propounded herein containing copies of
recordings of telephone calls by and between Magee and other persons during the period of his
incarceration in the Washington Parish Jail between March 28,2014 and July 7,2014.
REOUEST FOR PROD IICTION NO. 3
Please provide a copy of all written, recorded, videotaped, or typed statements you made
relating to the incident other than to your attorney
REOUEST FOR PRODUCTION NO.4:
All documents and communications identified in your responses to the Interrogatories
above.
REOUEST FOR PR ODIICTION NO. 5:
All documents and communications identified in your Amended Complaint
Page 12 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 14 of 24
REOUEST FOR PRODU CTION NO. 6
Please produce copies of all communications between you and/or your representatives,
and the FBI during the relevant period, including all documents produced by you to the FBI (if
any) and all documents received by you from the FBI (if any).
REQUEST FOR PRODUCTION NO.7:
Please produce of all comrnunications between you and Ruby Magee Walley during the
relevant period and during the Incident.
REOUEST FOR PR ODUCTION NO. 8
Please produce recordings of all conversations between you and defendant Ruby Magee
Walle during the relevant period and during the Incident.
REQUEST FOR PRODUCTION NO. 9:
Please produce of all communications between you and Walter P. Reed during the
relevant period.
REOUEST FOR PR ODUCTION NO. 10:
Please produce recordings of all conversations between you and defendant Walter P
Reed during the relevant period.
REOUEST FOR PRODUCTI oN NO. 1 1:
Please produce of all communications between you and defendant Jerry Wayne Cox
during the relevant period
REOUEST FOR UCTION NO. 12:
Please produce recordings of all conversations between you and defendant Jerry Wayne
Cox during the relevant period.
Page l3 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 15 of 24
REOUEST FOR PRODUCTION NO. 13:
Please produce of all comrnunications between you and your former wife, Crystal
Hughes Magee (now Crystal Taylor) during the relevant period and during the Incident.
REOUEST FOR PRODUCTIO N NO. 14
Please produce recordings of all conversations between you and your fonner wife,
Crystal Hughes Magee (now Crystal Taylor) during the relevant period and during the Incident.
REOUEST FOR PR ODI]CTION NO. 15:
Please produce of all communications between you and Debbie Cox during the relevant
period and during the Incident.
REOUEST FOR PRODUCTION NO. 16
Please produce recordings of all conversations between you and Debbie Cox during the
relevant period and during the Incident
REOUEST FOR PRODUCTION NO. 17:
Please produce of all communications between you and Leon Hickman during the
relevant period and during the Incident.
REOUEST FOR PR ODI]CTION NO. I8
Please produce recordings of all conversations between you and Leon Hickman during
the relevant period and during the Incident.
REOUEST FOR PRODUCTION NO. 19:
Please produce of all communications between Ruby Magee Walley and any
representative(s) of the WPSO during the Incident.
Page 14 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 16 of 24
REOUEST FOR PR ODI]CTION NO. 20
Please produce recordings of all conversations between Ruby Magee Walley and any
representative(s) of the WPSO during the Incident.
REOUEST FOR PRODUCTION NO. 21
Please produce of all communications between you andlor your counsel and any
representative(s) of the WPSO during the Incident
REOUEST FOR CTION NO. 22:
Please produce recordings ofall conversations between you and/or your counsel and any
representative(s) of the WPSO during the Incident.
REOUEST FOR PRODUCTION NO. 23:
Please produce of all communications between you and/or your counsel and any
representative(s) of the District Attomey's Office for the 22"d Judicial District of Louisiana,
Parishes of Washington and St. Tammany, during the Incident.
REOUEST FOR PRODUCTION NO. 24:
Please produce recordings ofall conversations between you and/or your counsel and any
representative(s) of the of the District Attomey's Office for the 22"d Judicial District of Louisiana, Parishes of Washington and St. Tammany, during the Incident.
REOUEST FOR PRODUCTION NO. 25:
Please produce a copy of the Order of Body Attachment and Order to Recall the Order of
Body Attachment referenced in fls 5(d) and 5(e) of your Arnended Complaint.
Page 15 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 17 of 24
REOUEST FOR PRODUCTION NO. 26:
Please produce copies of all correspondence between the Arkansas Office of Child Support Enforcement in Conway, Arkansas and representatives of the D.A during the relevant
period and Incident.
REOUEST FOR PRODUCTION NO. 27:
Please produce copies of all payments made by you in connection your child support
obligations to Crystal Hughes Magee during the period September 2011 through March 2014.
REQUEST FOR PRODUCTION NO. 28:
Please produce copies of all press releases by the WPSO and/or the D.A which you allege
in fl 15 of your Amended Complaint were issued relating to the Incident.
REOUEST FOR PRODUCTION NO. 29:
Please produce all documents supporting your allegation in in fl 15 of your Amended
Complaint wherein you allege the Louisiana Department of Child & Family Services' ("DCFS")
Covington Division requested the Arkansas Office of Child Support Enforcement to close your
case.
REOUEST FOR PRODUCTION NO. 30
Please provide all Federal Income Tax Retums, State Income Tax Returns, W-2 Forms,
1099 Forms, and all wage and lost wage information or documentation which you have for the
year ofthe Incident and for the four years preceding the Incident. Ifyou are not in possession of
each of these items or missing parts thereof, please cornplete lines 3 and 4, execute, date and
return the attached IRS form 4506.
Page l6 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 18 of 24
REOUEST FOR PRODUCTION NO.31:
Please complete the "Current Address" field, "Place of Birth" field, execute, date and
retum the attached U.S. Dept. of Justice Certification of Identity form.
REOUEST FOR PR ODI]CTION NO.32:
Please produce copies of all documents frorn any experts who (a) will testify at trial of
this matter or (b) you have consulted
REOUEST FOR PRODUCTION NO. 33:
Please produce all documents (if any) showing or tending to show that you subrogated
and/or agreed to reimburse and/or obligated yourself to any person for any part of your claim for
damages relating to the Incident, including for medical services.
REQUEST FOR PRODUCTION NO. 34:
Please provide a copy ofall pictures and/or text-based posts you or anyone else posted on
Facebook and/or other internet social media relating to the alleged incident.
REOUEST FOR PRODUCTION NO. 35:
Please provide copies of all documents subrnitted to or received from Social Security
Administration (if any) relating to disability benefits awarded andlor paid to you.
REOUEST FOR PRODUCTION NO. 36:
Please provide copies of all documents submitted to or received from CMS or Medicare
Advantage Plan or Medicare or Medicaid relating to incident-related treatment and/or billing for
same (if any), including but not limited to, documents relating to Medicare's conditional claim or
lien, any payment by Medicaid, any estimates, interim statements, email exchanges, and/or
written correspondence.
Page l7 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 19 of 24
REOUEST FOR PRODUCTION NO. 37:
Copies of transcripts of depositions of you taken pursuant to litigation initiated by you or
on your behalf, whether in the physical possession of you, your attorney in the above-captioned
case, or any other attomey you have ever employed.
REOUEST FOR PRODUCTION NO.38:
Copies of transcripts of depositions of you taken pursuant to litigation initiated by someone other than you, whether in the physical possession of you, your attomey in the above-
captioned case, or any other attomey you have ever employed.
REOUEST FOR PRODUCTI oN NO.39:
Copies of your engagement letters andlor contracts for representation by attomeys John
Allen, John Burke and Marion Farmer in connection with the Incident.
REOUEST FOR PRODUCTION NO. 40:
Copies of your detailed cell phone statements showing calls by you to and from the FBI
and Debbie Cox.
Respectfully submitted :
WARREN MONTGOMERY DISTRICT TTORNEY. 22IId JUDICIAL DISTRICT
By: C (Bar No. 09426) EMILY G. COUVILLON (Bar No. 3lll4) ALEX L.M. DUCROS (Bar No. 32128) 21454 Koop Drive, Suite 2G Mandeville, Louisiana 1047I Phone: (985)898-3427 Facsimile: (985)867-5124 Counsel for l(alter P. Reed, in his Former Official Capacity us the District Attorney, 22'd Judicial District, Parishes of Wushington and SL Tammany, State of Louisiana
Page 18 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 20 of 24
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served on all counsel of record via
electronic mail to all counsel for all parties this 13tl' day of June , 2019.
ALEX L.M. DUCROS
Page l9 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 21 of 24
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROGER D. MAGEE * CIVIL ACTION NO.: 14-01986 J
VERSUS + JUDGE (SECTION o'B") + IVAN L.R. LEMELLE WALTER P. REED, ET AL * * MAGTSTRATE (1): & JANET VAN MEERVELD ****************** 0
AFFIDAVIT
STATE OF
PARISH/COUNTY OF
BEFORE ME, the undersigned authority, personally came and appeared:
ROGER DALE MAGEE
Who, after being duly sworn, did depose and say that he has reviewed the Answers to Requests
for Admissions, Interrogatories and Requests for Production, which are attached, and they are
true and corect to the best of his knowledge and belief.
ROGER DALE MAGEE
SWORN TO AND SUBSCRIBED before me, Notary Public, this day of 2019.
NOTARY PUBLIC BAR NO. My commission exprres
Page20 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 22 of 24
Form 4506 Request for Copy of Tax Return (March 2019) > Do not sign this form unless all applicable lines have been completed, OMB No.1545-0429 > Request may be rejected if the form is incomplete or illegible. D€partmont of the Treasury lnlernal Revenue Service ) For more information about Form 4506, visit wvvw,irs.govlform4S6,
Tip. You may be able to get your tax return or return information from other sources. lf you had your tax return completed by a paid preparer, they should be able to provide you a copy of the return. The IRS can provide a Tax Return Transcript for many returns free of charge. The transcript provides most of the line entries from the original iax return and usually contains the information that a third party (such as a mortgage company) requires. See Form 4506-T, Request for Transcript of Tax Return, or you can quickly request transcripts by using our automated self-help service tools. Please visit us at lRS.gov and click on "Get a Tax Transcript..." or call 1-800-908-9946.
1a Name shown on tax return. lf a loint return, enter the name 1b security number on tax return, individual taxpayer identificaUon number, or employer identification number (see instructions) ROGER DALE MAGEE XXX-XX-XXXX 2a lf a joint return, enter spouse's name shown on tax return. 2b Second social securitynumberor taxpayer identification number if joint tax retum
3 name, address apl., room, or suite no.), city, state, and ZIP code (see instructions)
4 Previous address shown on the last return filed if different from line 3 (see instructions)
. 5 lf the tax return is to be mailed to a third party (such as a mortgage company), enter the third party's name, address, and telephone number Alex L.M. Ducros, ADA, La.22nd Jud. Dist., 21454 Koop Dr., Ste. 2G, Mandeville, LA 70471 (985) 276-6396
Caution: lf the tax return is being mailed to a third party, ensure that you have filled in lines 6 and 7 before signing. Sign and date the form once you have filled in these lines. Completing these steps helps to protect your privacy. Once the IRS discloses your tax return io the third parly listed on line 5, the IRS has no control over what the third party does with the information. lf you would like to limit the third pady's authority to disclose your return information, you can specify this limitation in your written agreement with the third party.
6 Tax return requested. Form 1040, 1120, 941, etc. and all attachments as originally submitted to the lRS, including Form(s) W-2, schedules, or amended returns. Copies of Forms 1040, 1040A, and 1O4OEZ are generally available for 7 years from filing before they are destroyed by law. Other returns may be available for a longer period of time. Enter only one return number. lf you need more lhan one type of return, you must complete another Form 4506. ) Note: lf the copies must be certified for court or administrative proceedings, check here a 7 Year or period requested. Enter the ending date of the year or period, using the mrn/dd/yyyy format. lf you are requesting more than eighi years or periods, you must attach another Form 4506. 1213112009 1213112010 1213112011 12131120'12
1213112014
Fee. There is a $50 fee for each return requested. Full payment must be included with your request or it will be rejected. Make your check or money order payable to "United States Treasury," Enter your SSN, lTlN, or EIN and "Form 45OO request" on your check or money order. a Cost for each return $ b Number of returns requested on line 7 . 5 c Total cost. Mu line 8a line 8b 250.00 9 lf we cannot find the tax return, we will refund the fee. lf the refund should go to the third pady listed on line 5, check here z Caution: Do not sign this form unless all applicable lines have been completed Signature of taxpayer(s). I declare that I am either the taxpayer whose name is shown on line 1 a or 2a, or a person authorized to obtain the tax return requested. lf the request applies to a joint return, at least one spouse must sign. lf signed by a corporate officer, 1 percent or more shareholder, partner, managing member, guardian, tax matters partner, executor, receiver, administrator, trustee, or party other than the taxpayer, I certify that I have the authority to execute Form 4506 on behalf of the taxpayer. Note: This form must be received by IRS within 1 20 days of the signature date. I Signatory attests that he/she has read the attestation clause and upon so reading Phone number of taxpayer on line declares that he/she has the authority to sign the Form 4506. See instructions. 1a or 2a
Sign ) Signature (se6 instructions) Date
Here ) fitle (if line 1 a abovo is a corporation, partnership, estate, or trust)
) Spouse's signature Date
For Privacy Act and Paperwork Reduction Act Notice, see page 2. Cat. No. 41 721 E rorm 4506 (R€v.3-201s) Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 23 of 24
Form 4506 (Rev. 3-201 9) Page 2
Section reterences are to the lnternal Revenue Code Chart for all other returns Corporations. Generally, Form 4506 can be unless otherwise noted. signed by: (1) an otficer having legal authority to bind lf you lived in the corporation, (2) any person designated by tho Future Developments or your business Mail to: board of directors or other governing body, or (3) any officer or employee on written request by any For the latest information about Form 4506 and its was in; principal officer and attested to by the secretary or instructions, go ro www.irs.gov /form4506. othor ofticer. A bona fide shareholder ol record lnformation about any recent developments affecting Alabama, Alaska, ownlng 1 percent or moro of the outstanding stock Form 4506, Form 4506-T and Form 4506T-EZ will be Arizona, Arkansas, of tho corporation may submit a Form 4506 but must posted on that page. California, Colorado, provide documentation to support the requester's Connecticut, Delaware, right to receive the informalion. General lnstructions District of Columbia, Partnerships. Generally, Form 4506 can bs Florida, Georgia, Hawaii, Caution: Do not sign this form unless all applicable ldaho, lllinois, lndiana, signed by any person who was a member of the lines have been completed. lowa, Kansas, Kentucky, partnership during any part of ths tax period Louisiana, Maine, requested on line 7. Purpose of form, Use Form 4506 to request a copy of your tax return. You can also designate (on line 5) Maryland, All others, See seciion 61 03(e) if tho taxpayer has a thkd party to receive the iax return. Massachusetts, died, is insolvent, is a dissolved corporation, or if a Michigan, Minnesota, trustee, guardian, executor, receiver, or How long will it take? lt may take up to 75 Mississippi, administrator is acting for the taxpayer. calendar days for us to process your r€quest. Missouri, Montana, Note: ll you ar€ Hoir at law, Nexi ot kin, or Tip. Use Form 4506-T, Request tor Transcript of Tax Nebraska, Nevada, New Beneflciary you must be able to esiablish a material Return, to request tax return transcripts, tax account Hampshire, New Jersey, interest in the estate or trust. information, W-2 information, 1099 information, New Mexico, New York, lntornal Revenue Service verification of nonliling, and records of account. North Carolina, RAIVS Team Documentation, For entities other than individuals, North Dakota, Ohio, P.O. Box 9941 you must attach the authorization document. For Automated transcript requesl, You can quickly Oklahoma, Oregon, Mail Stop 6734 example, this could be tho letter from tho principal request transcripts by using our automated self-help Pennsylvania, Rhode Ogdon, UT 84409 officer authorizing an employe€ of tho corporation or service tools. Please visit us at lRs,gov and click on "Get a Tax Transcript..." or call 1 -800-908-9946. lsland, South Carolina, tho letters testamentary authorizing an individual to South Dakota, act for an estate. Where to file, Attach payment and mail Form 4506 Tennessee, Texas, Utah, to the address below for the state you lived in, or the Signature by a representative, A representalive Vermont, Virginia, can sign Form 4506 lor a taxpayer only if this state your business was in, when that return was Washington, West authority has been specifically dslegated to the filed. There are two address charts: one lor Virginia, Wisconsin, representative on Form 2848, line 5a. Form 2848 individual returns (Form 1 040 series) and one for all Wyoming, a foreign showing the delegation must be attached to Form other roturns. country, American 4506. ll you are requesiing a return for more than ono Samoa, Puerto Bico, year or period and the chart below shows two Guam, the Privacy Act and Paperwork Reduction Act different addresses, send your request to lhe Commonwealth of the Notice, W6 ask for the information on this form to address based on the address of your most recent Northern Mariana establish your right io gain access to the requosted return. lslands, the U.S. Virgin return(s) under the lntemal Revenus Cods. W€ need lslands, or A,P.O. or this inlormation to propedy identify the return(s) and Chart for individual returns F.P.O. address rsspond to your request. lf you request a copy of a (Form 1040 series) tax retum, sections 6 l 03 and 61 09 requiro you io provide this information, including your SSN or ElN, lf you filed an individual retum Mail tor Specific lnstructions to process your request. lf you do not provido this information, we may not be able to process your and lived in: Line 1b. Enter your employer identificalion number request. Providing falso or lraudulont information (ElN) if you are requesting a copy of a business may subject you to penaltios. Alabama, Keniucky, retum. Otherwise, enter the first social security Routins uses of this information include giving it to Louisiana, Mississippi, numb6r (SSN) or your individual taxpayer the Department of Justice for civil and criminal Tennessee, Texas, a lntsrnal Bevenue Ssrvics identification number (lTlN) shown on the return. For litigation, and cities, states, th€ Disvict of Columbia, toreign country, American RAIVS Team example, if you are requesting Form 1 040 that and U.S. commonwealths and possessions for use Samoa, Puerto Bico, includes Schedule C (Form 1 040), enter your SSN. in administering their tax laws, We may also Guam, th6 Stop 6716 AUSC Commonwealth of the Austin, TX 73301 Line 3. Enter your current address. lf you use a P.O. disclose this information to othsr countries under a Northern Mariana lslands, box, please include it on this line 3. tax treaty, to federal and state agencies to €nforce the U.S. Vkgin lslands, or Llne 4, Enter the address shown on tho last return tederal nontax criminal laws, or to federal law A.P.O. or F.P.O. address filed if difterent from the address entered on line 3. entorcement and intelligence agencies to combat t6rrorism. Alaska, Adzona, Note: lf th6 addresses on lines 3 and 4 are diflerent You are not required to provide the information Arkansas, California, and you have not changed your address with the lBS, file Form 8822, Change of Address. For a requested on a form that is subiect to the Paperwork Colorado, Hawaii, ldaho, Beduction Act unless the form displays a valid OMB lllinois, lndiana, lowa, business address, file Form 8822-8, Change ol control number. Books or records relating to a form Kansas, Michigan, lntemal Rev6nue Service Address or Responsible Party - Business. or its instructions must be retained as long as their Minnesota, Montana, RAIVS Team Signature and date. Form 4506 must be signed and contents may bscome material in the administration Nebraska, Nevada, New Stop 37106 dated by the taxpayer listed on line 1 a or 2a. The of any lnternal Revenue law. Generally, tax retums Mexico, North Dakota, Fresno, CA 93888 IRS must receivo Form 4506 within 120 days of tho and return information are confideniial, as required Oklahoma, Oregon, date signed by the taxpayer or it will be rejected. by section 61 03. South Dakota, Utah, Ensure that all applicable lines are completed before Washington, Wisconsin, The time needed to complete and fi16 Form 4506 signing. Wyoming will vary depending on individual circumstances. The estimated average time is: Leaming about the law Connecticut, Delaware, District of 71I ::;s::: :::: r"'::;::#:;;",." or th6 form, 10 min.; Preparing tho form, 16 min.; and Copying, assembling, and sending the form Columbia, Florida, Georgia, Maine, Maryland, Edd i::i :i: ;::l::w ;:1,:"ttr :zi";:' processed and returned to you if the box is to the lRS, 20 min. lf you have comments concerning the accuracy of lnternal Revenue Service these time estimates or suggestions for making Massachusstts, RAIVS Team unchecked. Form 4506 simpler, we would be happy to hear from Missouri, New Stop 6705 S-2 you. You can write to: Hampshire, New Jersey lndividuals. Copies of jointly filed tax returns may Kansas City, MO be furnished to €ither spouse. Only one signature is lnternal Revenuo Service New York, North 64999 required. Sign Form 4506 exactly as your name Tax Forms and Publications Division Carolina, Ohio, Pennsylvania, Bhode appeared on the original return. lf you changed your 1111 Constitution Ave. NW, lR-6526 name, also sign your current name. Washington, DC20224. lsland, South Carolina, Vermont, Virginia, West Virginia Do not send the torm lo this address. lnstead, ses Where to flle on this page. Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 24 of 24
U.S Department of Justice Certification of Identity
FORM APPROVED OMB NO. I t03-0016 EXPIRES 05/31/2020
Privacy Act Statement. In accordance with 28 CFR Section 16.41(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974,5 U.S.C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Requests will not be processed if this information is not fumished. False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section l00l and/or 5 U.S.C. Section 552a(iX3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1103-0016), Washington, DC 20503.
1 ROGER DALE MAGEE Full Name of Requester
Citizenship Status 2 UNITED STATES Social Security Number t XXX-XX-XXXX
Current Address
Date of Birth 1112411964 Place of Birth
OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a requester who is authorizing information relating to himself or herself to be released to another person.
Further, pursuant to 5 U.S.C. Section 552a(b),I authorize the U,S. Department of Justice to release any and all information relating to me to:
Alex L.M. Ducros, ADA, La.22nd Jud. Dist., 21454 Koop Dr., Ste. 2G, Mandeville,LA 70471 (985) 276-6396 Print or Type Name
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than $5,000.
n Signature Date
t Nurn" of individual who is the subject of the record(s) sought. 'Individual submitting a request under the Privacy Act of 197 4 must be either "a citizen of the United States or an alien lawfully admitted for permanent residence," pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully admitted for permanent residence. 3 Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you. a Signature of individual who is the subject of the record sought.
FORM DOJ.36I | 2019-12-02 | [
"Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 1 of 24 Warren Montgomery District Attorney 22\"d Judicial District Washington - St. Tammany Parishes Alex L.M. Ducros 21454 Koop Drive, Suite 2G Te lephone : (98 5) 898-3 42 7 Assistant District Attorney, Civil Division Mandeville, Louisiana 7047 I Facsimile: (985) B67-5 124 June 13,2019 VIA EMAIL ONLY Philip J. Kaplan Dylan Leach LRw OpT.ICES OF PHILIP J. KAPLAN Svrrn & FRwBR, LLC 3278 Wilshire Blvd., Suite 106 201 St. Charles Ave., Suite 3702 Los Angeles, CA 90010 New Orleans, LA 70110 Email : philipkaplanlaw@ email. com Email : dleach@smithfawer.",
"com Re Roger D. Magee v. Walter P. Reed, et al. EDLA Case No. 14-1986-ILRL-JVM Dear Philip and Dylan, Attached please find Defendant Walter P. Reed's, in his Former Offrcial Capacity as District Attorney for Washington and St. Tammany Parishes, State of Louisiana, First Set of Requests for Admissions, Interrogatories and Requests for Production of Documents Propounded to Plaintiff Roger Dale Magee. Should you have any trouble opening the attached or any questions, please do not hesitate to contact me. With kindest personal regards, I remain Sincerely Alex L.M. Ducros Encls. Cc: Via Email Only (w/ Encls.) James Knight (iknieht@knightlawllc. com) Rick Simmons (rsimmons@halleymcnamara.com) Cary Menard (cmenard @2\\da.com) Emily Couvillon (ecouvillon @22da.com) Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 2 of 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA u ROGER D. MAGEE CML ACTION NO. : 14-01986 u VERSUS * JUDGE (SECTION \"8\") u IVAN L.R. LEMELLE WALTER P. REED, ET AL * * MAGTSTRATE (1): & JANET VAN MEERVELD ******tr************ rs IN HIS FORMER OFFICIAL CAPACITY FIRST SET OF REOUESTS FOR MISSIONS. INTERROGATORIE,S AND REOUESTS FOR THE PRODUCTION OF DOCUMENTS PROPOUNDED TO PLAINTIFF ROGER DALE MAGEE TO: ROGER DALE MAGEE Through his attorneys ofrecord Philip J. Kaplan Dylan Leach Lew OpncES oF PHILIP J. KAPLAN SvnH & Fewrn, LLC 3278 Wilshire Blvd., Suite 106 201 St. Charles Ave., Suite 3702 Los Angeles, CA 90010 New Orleans, LA 70110 Email : philipkaplanlaw@ email.com Email : dleach@srnithfawer. com NOW COMES Defendant, Walter P. Reed, in his former official capacity as district attomey for the 22\"d Judicial District, Parishes of Washington and St. Tammany (the \"D.A.\"",
"or \"Reed\"), through its undersigned counsel, who propounds the following First Set of Requests for Admissions, Interrogatories and Requests for Document Production (collectively, the \"Requests\") to plaintiff Roger Dale Magee (\"Magee\"), which are to be answered completely in accordance with the Federal Rules of Civil Procedure within thirty (30) days, which Requests are to be deemed continuing. These Requests are additionally governed by the following definitions and instructions. Page I of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 3 of 24 DEFINITIONS INSTRI]CTIONS 1 The tenn \"person\" shall mean the plural as well as the singular and includes, without lirnitation, any individual, partnership, firm or corporation, lirnited liability company, limited liability partnership, association, joint venture, federal, state or local govemment agency or department or any other business, legal or govemmental entity. 2 The terms \"you\" and \"your\" shall mean the person to whom these Requests are directed. a J The tenn oodocument\" shall mean the original or a copy of any written, printed, typed, photocopied, photographic or graphic matter of any kind or bharacter, and any recorded materials, however produced or reproduced, in your possession or control or known by you to exist, including, without limiting the generality of the foregoing, all drafts, contracts, agreements, letters, diaries, calendars, day-timers, desk pads, corespondence, communications (as defined below), telegrams, teletypes, memoranda, notes, summaries, records, graphs, maps, charts, diagrams, plans, sketches, studies, reports, lists, minutes, brochures, pamphlets, circulars, press releases, entries in books of account, computer printouts, computer tapes, computer disks, computer storage andlor backup, microfilm, microfiche, tape recordings, photographs, motion pictures, videotapes, plats, diagrams, surveys, voice tapes or recordings relating or referring in any way to the subject matter of these Requests and all amendments, addenda, or attachments to those such documents.",
"Copies of documents which differ in any way from the original, including drafts or copies bearing notations, are also included in the definition of the term document. The term frdocument\" shall also mean the original or a copy of any data stored electronically, in any.form or fashion, in your possession, custody or control or known by you to exist, including, without limiting the generality of the foregoing, draft and previous versions of documents, or data, including those but not limited to those defined or stored as follows: a. On-Line Data Storage on Mainframes, Minicomputers, PC's, tablets or Laptops; b. Off-Line Data Storage, Backups and Archives, Floppy Diskettes, Zip Dives/Files, Tapes, Compact Disks or Diskettes, Laptops, Flash media, Palm-held devices, Tablet-devices, External Hard Drives or Other Removable Electronic Media; c. Data Storage Devices; d. Fixed Drives on Stand-Alone Personal Computers or Network Workstations; e. Programs and Utilities (necessary for the retrieval or processing of data and files); f. Maintenance of a Log of System Modifications; (} Copies of Software and Operating Manuals; b. h. E-Mail and text-messages; i. Word processing files, computer presentations (e.g., PowerPoint slides), stand- alone databases (e.g., Access), and spreadsheets (e.9., Excel); j.",
"Databases; and k. Electronically stored research and/or reference literature and materials. Page 2 of 20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 4 of 24 4. The tenn oocommunication\" shall rnean the transrnission of infonnation from one person to another or in the presence of another whether written, oral, telephonic, electronic or by any other means, and shall be a document as defined above when recorded in writing or via means of audio or video recording, including, without limitation, letters, emails, faxes, text messages, voice memos, audio recordings, video footage. 5 The term \"obligationtt or \"contract\" or \"agreementtt shall mean a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee. Performance may consist of giving, doing, or not doing something. 6 The terms \"relate to\" and oorelating to\" shall mean: consist of, refer to, indicate, support, evidence, reflect or be in any way basically or factually connected with this matter.",
"7. The terms \"identifytt or t'identification\" and o'describett or'(description\" L. When used in reference to an individual, shall mean to state his or her full name, present or last known home address and telephone number, business affiliation, business address, business telephone number, job title and description of duties; b When used in reference to a corporation, shall mean to state its full legal name, its trade name (if any), its state of incorporation, and the address and telephone number of its principal place of business; c. When used in reference to a person other than an individual or corporation, shall mean to state its fulI legal name, its trade name (if any), its organizational form, and the address and telephone number of its principal place of business; d. When used in reference to a document, shall mean to state the type of document, date, author, addressee, title, its present location, the full name and business address and telephone number of its custodian, and the substance of the contents thereof.",
"In lieu of identifying any document, copies thereof may be furnished; e. When used in reference to an agreement or contract, shall mean to state the full name of each party to the agreement or contract, the date on which it was entered into, the place where it was perfected, its terms andlor conditions, its present location, the fulI name and business address and telephone number of its custodian, and the substance of the contents thereof.",
"If the agreement or contract has been amended, this must be stated and the above information fumished on each such amendment. In lieu of identifying any agreement or contract, copies thereof may be fumished; f. When used in reference to any act, occurrence, occasion, meeting, transaction, investigation, examination, expression or conduct (collectively,\"act\"), shall mean to set forth the event or events constituting such act, its location, the date and Page 3 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 5 of 24 persons participating, including each such person's name, home address and telephone nurnber, business affiliation, business address and telephone nurnber, and occupation, present or involved, and the documents relating or referring in any way thereto, when used in reference to any discussion, conversation, communication, investigation, examination or statement (collectively, \"discussion\"), shall mean in addition to the foregoing to set forth the substance of the discussion.",
"8 Words of the masculine gender include the feminine and neuter gender, and the singular includes the plural (and vice versa). 9 The definitions set forth are expressly incorporated by reference and made aparL of each of the Requests set forth below. 10 Pursuant to the Federal Rules of Civil Procedure, this discovery is deemed continuing requiring supplemental responses thereto to be seasonally given in the event that information is discovered, acquired or becomes known to you which would require amendment or supplementation of the responses to these Requests in order for your responses to be proper, complete andlor truthful. 11. Answer each Request fully, regardless of whether your response is based on information actually or constructively available (1) to you personally or (2) to anyone acting on your behalf, including officers, representatives, accountants, attorneys, and any other person or firm known by any of the foregoing to possess or have access to the pertinent information or documsnts. 12 If you propose an objection to any Request, please state fully the grounds for the objection and the legal authority upon which you will rely in response to a Motion to Compel.",
"13. In this regard, if any Request is subject to objection on the basis of the assertion or claim of privilege or attomey work product, please specify the claimed basis for withholding the information, provide a statement of all circumstances which will be relied upon to support any such claim and the nature of the information withheld including, but not limited to, the following: a. The author(s); b. The recipient(s); c. The sender; d. The date and tirne; e. File type (e.g.,letter, report, memorandum, chart, etc.) e. A description of the nature and subject matter of the document; and f. The basis or bases for the claim of privilege or other reason claimed for withholding or limiting disclosure.",
"Page 4 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 6 of 24 l4 If any document responsive to these Requests was, but is no longer, in your possesslon or custody or subject to its control, or in existence, state whether it (1) is missing or lost, (2) has been destroyed, (3) has been transferred, voluntarily or involuntarily, to others or (4) has been otherwise disposed of, and in each instance, explain the circumstances sumounding the disposition thereof, and state the date or approximate date of such disposition. 15 You are requested to organize your production of documents with reference to the Request in response to which the documents are produced.",
"16. Restate each Request in full prior to a response 17 You are requested to organize your production of documents with reference to the Request in respond to which the documents are provided. 18. Verify you have read and confirm your answers and objections to these interrogatories by signing the attached verification. 19. The term'olncident\" means the plaintiff Magee's March 28 and March 31,2014 amests and resulting incarceration until his release subject to a plea agreement entered on July 7, 2014, which is the subject of this lawsuit. 20 The term \"relevant period\" means the period between January I,2009 and March 28, 2014. 2t.",
"The term \"medical services\" shall mean any service provided by any health care provider. 22 The term \"date\" means the exact date of the occurrence mentioned or altematively the approximate date(s) if the exact date is unknown, under the condition that approximate dates provided are to be identified as such. 23 The term \"location\" means, unless otherwise noted, the exact municipal address if known. If unknown, please identify the state, parish (or county), and city (if such item occurred within a city limit) where the item referred to occurred. Page 5 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 7 of 24 FIRST SET OF REOUESTS FOR ADMISSIONS REOUEST FOR ADMISSIONS NO. 1 Please admit that you had no communications with representatives of the Federal Bureau of Investigation (or \"FBI\") regarding Walter P. Reed prior to your release from the Washington Parish Jail on July 7 ,2014. REOUEST FOR IONS NO. 2 Please admit no Assistant District Attorney was present at the 12 hour hearing held on March 31,2014.",
"REOUEST FOR ADMISSIONS NO. 3 Please admit you hired attorney John Allen to represent you in connection with your March 28,2014 arrest. REOUEST FOR MISSIONS NO. 4 Please admit Commissioner Dan Foil appointed an indigent defender to represent you at the12 hour hearing held on March 31,2074. REOUEST FOR ADMISSIONS N o. 5: Please admit your attomey John Allen did not attend the 72 hour hearing held on March 31,2014 on your behalf. REOUEST FOR ONS NO.6: Please admit your attomey John Allen did not attend any hearing on your behalf relating to your March 28,2014 arrest. RE o UEST FOR ADMISSIONS N o1 Please admit you made no child support payments between September 13, 2011 and March 28, 201 4 inclusive. Page 6 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 8 of 24 FIRST SET OF RROGATORIES INTERROGATORY NO.",
"1: Please provide the following: a. your fulI legal name, and any aliases or nicknames ever used by you; b. your date of birth; c. your place of birth; d. your social security number; e. your marital status (including full names of each spouse, and dates of all marriages, dates of termination); f. the names and dates of birth of all children, natural and adopted; g. current address and previous residence addresses for the past ten years, indicating dates for each; h. the names and addresses of every high school, college, vocational and professional school you have attended, showing beside each whether you graduated or received any degree or certification, and the dates ofattendance; i. your full employment history, including the names and addresses of each and every employer, dates of employment by each, whether employment was full or part-time, a description of the position and its duties, the average number of weekly hours worked, and approximate wage or salary per hour, week or annum.",
"For any period of self-employ, please identify the custodian of and location of all financial records related to such business pursuit. PageT of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 9 of 24 INTERROGATORY NO.2: Please identify all representatives of the FBI you allegedly provided information to with the \"several years\" you reference in fl 4(a) of your First Amended Complaint for Damages, Declaratory Relief, and Injunctive Relief filed on August 29,2014 (Rec. Doc.23) (the \"Amended Cornplaint\"), along with the dates of all meetings, calls andlor other communication with same. INTERROGATORY NO. 3: Please identify the \"personal injury referrals\" you reference in 'lJ 4 of your Amended Complaint, along with the details of the \"settlement of those matters,\" \"issues about how those case were settled,\" and \"questions about how and to whom settlement proceeds were distributed,\" which you allegedly provided to the FBI.",
"INTERROGATORY NO.4: Identify all sources of the quoted excerpts appearing in your Amended Complain, whether there are recordings of same, and identify the location of same; specifically, those alleged quoted excerpts appearing in: (a) Paragraph4(a); (b) Paragraph 5(a); (c) Paragraph 22;and (d) Paragraph23. INTERROGATORY NO. 5: Identify all sources of the information you were allegedly \"informed\" of supporting your allegation in fl 5(e) of your Amended Complaint that \"Cox, Reed, and Sheriff Seal had knowledge of the above Order to Recall Body Attachment ('Recall Order'), particularly in light Page 8 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 10 of 24 of Seal's involvement and partnership with the District Attomey's Office in a 'roundup'--qf parents who were in .\" INTERROGATORY NO. 6: Identify all sources of the information you were allegedly \"informed\" of supporting your allegations in tf 5(f) of your Amended Cornplaint wherein you allege that the issuance of the Recall Order was \"was engineered by Reed, through the channels of the District Attomey's Office, and by Cox.\" INTERROGATORY NO.",
"7: Identify all sources of the information you were allegedly \"informed\" of supporting your allegations in fl 5(g) of your Amended Complaint wherein you allege that you were \"protected by the Recall Order\" issued by the coufi in Arkansas despite your presence in Louisiana - including the specific person(s) you spoke with and the documents you were provided (if any). INTERROGATORY N o. 8: Identify all persons present at the home of Ruby Magee Walley at the time of your arrest on March 28,2074, including their ages at the time.",
"INTERROGATORY NO. 9: Identify the cell phone number and cell-phone carrier you were using when you allegedly received a call from Jerry Wayne Cox's daughter, Debbie Cox, on the day after your release, as referenced inl24 of your Amended Complaint. INTERROGATORY NO. 10: Please identify the full names, last known addresses, telephone numbers and email addresses of all persons whom you may call as a witness at the trial of this matter, including and identifying all expert witnesses (rnedical or otherwise) in support of your loss of consofiium Page9 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 11 of 24 claim, and briefly state the facts and/or opinions to which you anticipate each witness will testify. INTERROGATORY NO. 11: Please identify your employers for the last ten (10) years and, for each job, identify the following: (a) the dates of your employment; (b) position(s) held; (c) the nature of work; (d) the name of your supervisor(s); (e) your salary or hourly wage; and (f) the reason(s) for leaving. INTERROGATORY NO. 12: Please identify all members of your \"family\" and \"criminal defense counsel\" who you allege \"made a number of requests for bail\" during the Incident, specifically who refused them, and who specifically used the phrase \"DA Hold\" during the Incident as referenced in I22 of your Amended Complaint INTERROGATORY NO.",
"13: Please state if you have ever claimed to any local, state or federal agency, that you ever suffered from any mental or physical disability, and if so state: (a) what the disability claimed was; (b) the agency/-ies to which you made such claim; (c) the dates each claim was submitted; and (d) the reason(s) you made such claim(s). INTERROGATORY NO. 14: Please state if whether you are or have ever been a Medicare beneficiary or eligible to receive Medicare benefits or Medicaid benefits. If your answer is in the affirmative, please state: (a) when you became eligible for Medicare or Medicaid; (b) reason for Medicare or Medicaid eligibility; (c) your HICN No. ; (d) have you or anyone on your behalf, including your attomey, contacted the Centers for Medicare & Medicaid Services (CMS) and provided notice of the alleged incident in accordance with 42 C.F.R. Section 411.25; (e) advise the date of the Page 10 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 12 of 24 notification given to CMS noted in section d above; and (f) who is your Medicare Advantage Plan provider?",
"If the answer is negative, please identify the dates you applied for Medicaid benefits, along with the dates you received notice of denial of each. INTERROGATORY NO. 15: Please state if whether you are or have ever been eligible to receive Social Security Administration (\"SSA\") disability benefits. If your answer is in the affirmative, please state: (a) date you became eligible for disability; (b) reason for your disability eligibility; (c) your disability claim number; (d) how much do you receive in disability payments monthly? If your answer to the above question is negative, please identify the dates you applied for Medicaid benefits, along with the dates you received notice of denial of each. Page 11 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 13 of 24 SET OF UESTS FOR REOUEST FOR PRODUCTION NO. 1: Please produce copies of all documents produced to you by any parly or non-pafiy, or produced by you, in connection with discovery in this matter following the D.A. 's dismissal, including, without limitation: (1) written discovery requests (including subpoenas and/or subpoenas duces tecum); (2) written discovery responses; (3) all documents produced by you or any party, third-party and/or non-party in response to written discovery requests, oral requests (e.g., during depositions/hearings) and/or subpoenas duces tecum; and (4) deposition transcripts and exhibits thereto.",
"REOUEST FOR PRODU CTION NO. 2: Please produce a copy of the CD produced to you by the Washington Parish Sheriffls Office (the \"WPSO\") in response to discovery requests propounded herein containing copies of recordings of telephone calls by and between Magee and other persons during the period of his incarceration in the Washington Parish Jail between March 28,2014 and July 7,2014. REOUEST FOR PROD IICTION NO. 3 Please provide a copy of all written, recorded, videotaped, or typed statements you made relating to the incident other than to your attorney REOUEST FOR PRODUCTION NO.4: All documents and communications identified in your responses to the Interrogatories above. REOUEST FOR PR ODIICTION NO. 5: All documents and communications identified in your Amended Complaint Page 12 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 14 of 24 REOUEST FOR PRODU CTION NO.",
"6 Please produce copies of all communications between you and/or your representatives, and the FBI during the relevant period, including all documents produced by you to the FBI (if any) and all documents received by you from the FBI (if any). REQUEST FOR PRODUCTION NO.7: Please produce of all comrnunications between you and Ruby Magee Walley during the relevant period and during the Incident. REOUEST FOR PR ODUCTION NO. 8 Please produce recordings of all conversations between you and defendant Ruby Magee Walle during the relevant period and during the Incident. REQUEST FOR PRODUCTION NO. 9: Please produce of all communications between you and Walter P. Reed during the relevant period. REOUEST FOR PR ODUCTION NO.",
"10: Please produce recordings of all conversations between you and defendant Walter P Reed during the relevant period. REOUEST FOR PRODUCTI oN NO. 1 1: Please produce of all communications between you and defendant Jerry Wayne Cox during the relevant period REOUEST FOR UCTION NO. 12: Please produce recordings of all conversations between you and defendant Jerry Wayne Cox during the relevant period. Page l3 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 15 of 24 REOUEST FOR PRODUCTION NO. 13: Please produce of all comrnunications between you and your former wife, Crystal Hughes Magee (now Crystal Taylor) during the relevant period and during the Incident. REOUEST FOR PRODUCTIO N NO. 14 Please produce recordings of all conversations between you and your fonner wife, Crystal Hughes Magee (now Crystal Taylor) during the relevant period and during the Incident. REOUEST FOR PR ODI]CTION NO. 15: Please produce of all communications between you and Debbie Cox during the relevant period and during the Incident. REOUEST FOR PRODUCTION NO. 16 Please produce recordings of all conversations between you and Debbie Cox during the relevant period and during the Incident REOUEST FOR PRODUCTION NO.",
"17: Please produce of all communications between you and Leon Hickman during the relevant period and during the Incident. REOUEST FOR PR ODI]CTION NO. I8 Please produce recordings of all conversations between you and Leon Hickman during the relevant period and during the Incident. REOUEST FOR PRODUCTION NO. 19: Please produce of all communications between Ruby Magee Walley and any representative(s) of the WPSO during the Incident. Page 14 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 16 of 24 REOUEST FOR PR ODI]CTION NO. 20 Please produce recordings of all conversations between Ruby Magee Walley and any representative(s) of the WPSO during the Incident. REOUEST FOR PRODUCTION NO. 21 Please produce of all communications between you andlor your counsel and any representative(s) of the WPSO during the Incident REOUEST FOR CTION NO. 22: Please produce recordings ofall conversations between you and/or your counsel and any representative(s) of the WPSO during the Incident. REOUEST FOR PRODUCTION NO. 23: Please produce of all communications between you and/or your counsel and any representative(s) of the District Attomey's Office for the 22\"d Judicial District of Louisiana, Parishes of Washington and St. Tammany, during the Incident. REOUEST FOR PRODUCTION NO.",
"24: Please produce recordings ofall conversations between you and/or your counsel and any representative(s) of the of the District Attomey's Office for the 22\"d Judicial District of Louisiana, Parishes of Washington and St. Tammany, during the Incident. REOUEST FOR PRODUCTION NO. 25: Please produce a copy of the Order of Body Attachment and Order to Recall the Order of Body Attachment referenced in fls 5(d) and 5(e) of your Arnended Complaint. Page 15 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 17 of 24 REOUEST FOR PRODUCTION NO. 26: Please produce copies of all correspondence between the Arkansas Office of Child Support Enforcement in Conway, Arkansas and representatives of the D.A during the relevant period and Incident. REOUEST FOR PRODUCTION NO. 27: Please produce copies of all payments made by you in connection your child support obligations to Crystal Hughes Magee during the period September 2011 through March 2014.",
"REQUEST FOR PRODUCTION NO. 28: Please produce copies of all press releases by the WPSO and/or the D.A which you allege in fl 15 of your Amended Complaint were issued relating to the Incident. REOUEST FOR PRODUCTION NO. 29: Please produce all documents supporting your allegation in in fl 15 of your Amended Complaint wherein you allege the Louisiana Department of Child & Family Services' (\"DCFS\") Covington Division requested the Arkansas Office of Child Support Enforcement to close your case. REOUEST FOR PRODUCTION NO. 30 Please provide all Federal Income Tax Retums, State Income Tax Returns, W-2 Forms, 1099 Forms, and all wage and lost wage information or documentation which you have for the year ofthe Incident and for the four years preceding the Incident.",
"Ifyou are not in possession of each of these items or missing parts thereof, please cornplete lines 3 and 4, execute, date and return the attached IRS form 4506. Page l6 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 18 of 24 REOUEST FOR PRODUCTION NO.31: Please complete the \"Current Address\" field, \"Place of Birth\" field, execute, date and retum the attached U.S. Dept. of Justice Certification of Identity form. REOUEST FOR PR ODI]CTION NO.32: Please produce copies of all documents frorn any experts who (a) will testify at trial of this matter or (b) you have consulted REOUEST FOR PRODUCTION NO. 33: Please produce all documents (if any) showing or tending to show that you subrogated and/or agreed to reimburse and/or obligated yourself to any person for any part of your claim for damages relating to the Incident, including for medical services.",
"REQUEST FOR PRODUCTION NO. 34: Please provide a copy ofall pictures and/or text-based posts you or anyone else posted on Facebook and/or other internet social media relating to the alleged incident. REOUEST FOR PRODUCTION NO. 35: Please provide copies of all documents subrnitted to or received from Social Security Administration (if any) relating to disability benefits awarded andlor paid to you. REOUEST FOR PRODUCTION NO. 36: Please provide copies of all documents submitted to or received from CMS or Medicare Advantage Plan or Medicare or Medicaid relating to incident-related treatment and/or billing for same (if any), including but not limited to, documents relating to Medicare's conditional claim or lien, any payment by Medicaid, any estimates, interim statements, email exchanges, and/or written correspondence. Page l7 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 19 of 24 REOUEST FOR PRODUCTION NO. 37: Copies of transcripts of depositions of you taken pursuant to litigation initiated by you or on your behalf, whether in the physical possession of you, your attorney in the above-captioned case, or any other attomey you have ever employed.",
"REOUEST FOR PRODUCTION NO.38: Copies of transcripts of depositions of you taken pursuant to litigation initiated by someone other than you, whether in the physical possession of you, your attomey in the above- captioned case, or any other attomey you have ever employed. REOUEST FOR PRODUCTI oN NO.39: Copies of your engagement letters andlor contracts for representation by attomeys John Allen, John Burke and Marion Farmer in connection with the Incident. REOUEST FOR PRODUCTION NO. 40: Copies of your detailed cell phone statements showing calls by you to and from the FBI and Debbie Cox. Respectfully submitted : WARREN MONTGOMERY DISTRICT TTORNEY.",
"22IId JUDICIAL DISTRICT By: C (Bar No. 09426) EMILY G. COUVILLON (Bar No. 3lll4) ALEX L.M. DUCROS (Bar No. 32128) 21454 Koop Drive, Suite 2G Mandeville, Louisiana 1047I Phone: (985)898-3427 Facsimile: (985)867-5124 Counsel for l(alter P. Reed, in his Former Official Capacity us the District Attorney, 22'd Judicial District, Parishes of Wushington and SL Tammany, State of Louisiana Page 18 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 20 of 24 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record via electronic mail to all counsel for all parties this 13tl' day of June , 2019. ALEX L.M. DUCROS Page l9 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 21 of 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROGER D. MAGEE * CIVIL ACTION NO. : 14-01986 J VERSUS + JUDGE (SECTION o'B\") + IVAN L.R. LEMELLE WALTER P. REED, ET AL * * MAGTSTRATE (1): & JANET VAN MEERVELD ****************** 0 AFFIDAVIT STATE OF PARISH/COUNTY OF BEFORE ME, the undersigned authority, personally came and appeared: ROGER DALE MAGEE Who, after being duly sworn, did depose and say that he has reviewed the Answers to Requests for Admissions, Interrogatories and Requests for Production, which are attached, and they are true and corect to the best of his knowledge and belief.",
"ROGER DALE MAGEE SWORN TO AND SUBSCRIBED before me, Notary Public, this day of 2019. NOTARY PUBLIC BAR NO. My commission exprres Page20 of20 Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 22 of 24 Form 4506 Request for Copy of Tax Return (March 2019) > Do not sign this form unless all applicable lines have been completed, OMB No.1545-0429 > Request may be rejected if the form is incomplete or illegible. D€partmont of the Treasury lnlernal Revenue Service ) For more information about Form 4506, visit wvvw,irs.govlform4S6, Tip. You may be able to get your tax return or return information from other sources. lf you had your tax return completed by a paid preparer, they should be able to provide you a copy of the return.",
"The IRS can provide a Tax Return Transcript for many returns free of charge. The transcript provides most of the line entries from the original iax return and usually contains the information that a third party (such as a mortgage company) requires. See Form 4506-T, Request for Transcript of Tax Return, or you can quickly request transcripts by using our automated self-help service tools. Please visit us at lRS.gov and click on \"Get a Tax Transcript...\" or call 1-800-908-9946. 1a Name shown on tax return. lf a loint return, enter the name 1b security number on tax return, individual taxpayer identificaUon number, or employer identification number (see instructions) ROGER DALE MAGEE XXX-XX-XXXX 2a lf a joint return, enter spouse's name shown on tax return.",
"2b Second social securitynumberor taxpayer identification number if joint tax retum 3 name, address apl., room, or suite no. ), city, state, and ZIP code (see instructions) 4 Previous address shown on the last return filed if different from line 3 (see instructions) . 5 lf the tax return is to be mailed to a third party (such as a mortgage company), enter the third party's name, address, and telephone number Alex L.M. Ducros, ADA, La.22nd Jud. Dist., 21454 Koop Dr., Ste. 2G, Mandeville, LA 70471 (985) 276-6396 Caution: lf the tax return is being mailed to a third party, ensure that you have filled in lines 6 and 7 before signing. Sign and date the form once you have filled in these lines. Completing these steps helps to protect your privacy. Once the IRS discloses your tax return io the third parly listed on line 5, the IRS has no control over what the third party does with the information.",
"lf you would like to limit the third pady's authority to disclose your return information, you can specify this limitation in your written agreement with the third party. 6 Tax return requested. Form 1040, 1120, 941, etc. and all attachments as originally submitted to the lRS, including Form(s) W-2, schedules, or amended returns. Copies of Forms 1040, 1040A, and 1O4OEZ are generally available for 7 years from filing before they are destroyed by law. Other returns may be available for a longer period of time.",
"Enter only one return number. lf you need more lhan one type of return, you must complete another Form 4506. ) Note: lf the copies must be certified for court or administrative proceedings, check here a 7 Year or period requested. Enter the ending date of the year or period, using the mrn/dd/yyyy format. lf you are requesting more than eighi years or periods, you must attach another Form 4506. 1213112009 1213112010 1213112011 12131120'12 1213112014 Fee. There is a $50 fee for each return requested. Full payment must be included with your request or it will be rejected. Make your check or money order payable to \"United States Treasury,\" Enter your SSN, lTlN, or EIN and \"Form 45OO request\" on your check or money order. a Cost for each return $ b Number of returns requested on line 7 .",
"5 c Total cost. Mu line 8a line 8b 250.00 9 lf we cannot find the tax return, we will refund the fee. lf the refund should go to the third pady listed on line 5, check here z Caution: Do not sign this form unless all applicable lines have been completed Signature of taxpayer(s). I declare that I am either the taxpayer whose name is shown on line 1 a or 2a, or a person authorized to obtain the tax return requested. lf the request applies to a joint return, at least one spouse must sign. lf signed by a corporate officer, 1 percent or more shareholder, partner, managing member, guardian, tax matters partner, executor, receiver, administrator, trustee, or party other than the taxpayer, I certify that I have the authority to execute Form 4506 on behalf of the taxpayer. Note: This form must be received by IRS within 1 20 days of the signature date. I Signatory attests that he/she has read the attestation clause and upon so reading Phone number of taxpayer on line declares that he/she has the authority to sign the Form 4506. See instructions. 1a or 2a Sign ) Signature (se6 instructions) Date Here ) fitle (if line 1 a abovo is a corporation, partnership, estate, or trust) ) Spouse's signature Date For Privacy Act and Paperwork Reduction Act Notice, see page 2.",
"Cat. No. 41 721 E rorm 4506 (R€v.3-201s) Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 23 of 24 Form 4506 (Rev. 3-201 9) Page 2 Section reterences are to the lnternal Revenue Code Chart for all other returns Corporations. Generally, Form 4506 can be unless otherwise noted. signed by: (1) an otficer having legal authority to bind lf you lived in the corporation, (2) any person designated by tho Future Developments or your business Mail to: board of directors or other governing body, or (3) any officer or employee on written request by any For the latest information about Form 4506 and its was in; principal officer and attested to by the secretary or instructions, go ro www.irs.gov /form4506. othor ofticer.",
"A bona fide shareholder ol record lnformation about any recent developments affecting Alabama, Alaska, ownlng 1 percent or moro of the outstanding stock Form 4506, Form 4506-T and Form 4506T-EZ will be Arizona, Arkansas, of tho corporation may submit a Form 4506 but must posted on that page. California, Colorado, provide documentation to support the requester's Connecticut, Delaware, right to receive the informalion. General lnstructions District of Columbia, Partnerships. Generally, Form 4506 can bs Florida, Georgia, Hawaii, Caution: Do not sign this form unless all applicable ldaho, lllinois, lndiana, signed by any person who was a member of the lines have been completed. lowa, Kansas, Kentucky, partnership during any part of ths tax period Louisiana, Maine, requested on line 7. Purpose of form, Use Form 4506 to request a copy of your tax return. You can also designate (on line 5) Maryland, All others, See seciion 61 03(e) if tho taxpayer has a thkd party to receive the iax return. Massachusetts, died, is insolvent, is a dissolved corporation, or if a Michigan, Minnesota, trustee, guardian, executor, receiver, or How long will it take? lt may take up to 75 Mississippi, administrator is acting for the taxpayer. calendar days for us to process your r€quest. Missouri, Montana, Note: ll you ar€ Hoir at law, Nexi ot kin, or Tip.",
"Use Form 4506-T, Request tor Transcript of Tax Nebraska, Nevada, New Beneflciary you must be able to esiablish a material Return, to request tax return transcripts, tax account Hampshire, New Jersey, interest in the estate or trust. information, W-2 information, 1099 information, New Mexico, New York, lntornal Revenue Service verification of nonliling, and records of account. North Carolina, RAIVS Team Documentation, For entities other than individuals, North Dakota, Ohio, P.O. Box 9941 you must attach the authorization document. For Automated transcript requesl, You can quickly Oklahoma, Oregon, Mail Stop 6734 example, this could be tho letter from tho principal request transcripts by using our automated self-help Pennsylvania, Rhode Ogdon, UT 84409 officer authorizing an employe€ of tho corporation or service tools. Please visit us at lRs,gov and click on \"Get a Tax Transcript...\" or call 1 -800-908-9946. lsland, South Carolina, tho letters testamentary authorizing an individual to South Dakota, act for an estate.",
"Where to file, Attach payment and mail Form 4506 Tennessee, Texas, Utah, to the address below for the state you lived in, or the Signature by a representative, A representalive Vermont, Virginia, can sign Form 4506 lor a taxpayer only if this state your business was in, when that return was Washington, West authority has been specifically dslegated to the filed. There are two address charts: one lor Virginia, Wisconsin, representative on Form 2848, line 5a. Form 2848 individual returns (Form 1 040 series) and one for all Wyoming, a foreign showing the delegation must be attached to Form other roturns. country, American 4506. ll you are requesiing a return for more than ono Samoa, Puerto Bico, year or period and the chart below shows two Guam, the Privacy Act and Paperwork Reduction Act different addresses, send your request to lhe Commonwealth of the Notice, W6 ask for the information on this form to address based on the address of your most recent Northern Mariana establish your right io gain access to the requosted return.",
"lslands, the U.S. Virgin return(s) under the lntemal Revenus Cods. W€ need lslands, or A,P.O. or this inlormation to propedy identify the return(s) and Chart for individual returns F.P.O. address rsspond to your request. lf you request a copy of a (Form 1040 series) tax retum, sections 6 l 03 and 61 09 requiro you io provide this information, including your SSN or ElN, lf you filed an individual retum Mail tor Specific lnstructions to process your request. lf you do not provido this information, we may not be able to process your and lived in: Line 1b. Enter your employer identificalion number request. Providing falso or lraudulont information (ElN) if you are requesting a copy of a business may subject you to penaltios.",
"Alabama, Keniucky, retum. Otherwise, enter the first social security Routins uses of this information include giving it to Louisiana, Mississippi, numb6r (SSN) or your individual taxpayer the Department of Justice for civil and criminal Tennessee, Texas, a lntsrnal Bevenue Ssrvics identification number (lTlN) shown on the return. For litigation, and cities, states, th€ Disvict of Columbia, toreign country, American RAIVS Team example, if you are requesting Form 1 040 that and U.S. commonwealths and possessions for use Samoa, Puerto Bico, includes Schedule C (Form 1 040), enter your SSN. in administering their tax laws, We may also Guam, th6 Stop 6716 AUSC Commonwealth of the Austin, TX 73301 Line 3. Enter your current address.",
"lf you use a P.O. disclose this information to othsr countries under a Northern Mariana lslands, box, please include it on this line 3. tax treaty, to federal and state agencies to €nforce the U.S. Vkgin lslands, or Llne 4, Enter the address shown on tho last return tederal nontax criminal laws, or to federal law A.P.O. or F.P.O. address filed if difterent from the address entered on line 3. entorcement and intelligence agencies to combat t6rrorism.",
"Alaska, Adzona, Note: lf th6 addresses on lines 3 and 4 are diflerent You are not required to provide the information Arkansas, California, and you have not changed your address with the lBS, file Form 8822, Change of Address. For a requested on a form that is subiect to the Paperwork Colorado, Hawaii, ldaho, Beduction Act unless the form displays a valid OMB lllinois, lndiana, lowa, business address, file Form 8822-8, Change ol control number. Books or records relating to a form Kansas, Michigan, lntemal Rev6nue Service Address or Responsible Party - Business. or its instructions must be retained as long as their Minnesota, Montana, RAIVS Team Signature and date.",
"Form 4506 must be signed and contents may bscome material in the administration Nebraska, Nevada, New Stop 37106 dated by the taxpayer listed on line 1 a or 2a. The of any lnternal Revenue law. Generally, tax retums Mexico, North Dakota, Fresno, CA 93888 IRS must receivo Form 4506 within 120 days of tho and return information are confideniial, as required Oklahoma, Oregon, date signed by the taxpayer or it will be rejected. by section 61 03. South Dakota, Utah, Ensure that all applicable lines are completed before Washington, Wisconsin, The time needed to complete and fi16 Form 4506 signing. Wyoming will vary depending on individual circumstances. The estimated average time is: Leaming about the law Connecticut, Delaware, District of 71I ::;s::: :::: r\"'::;::#:;;\",.\" or th6 form, 10 min. ; Preparing tho form, 16 min. ; and Copying, assembling, and sending the form Columbia, Florida, Georgia, Maine, Maryland, Edd i::i :i: ;::l::w ;:1,:\"ttr :zi\";:' processed and returned to you if the box is to the lRS, 20 min. lf you have comments concerning the accuracy of lnternal Revenue Service these time estimates or suggestions for making Massachusstts, RAIVS Team unchecked. Form 4506 simpler, we would be happy to hear from Missouri, New Stop 6705 S-2 you.",
"You can write to: Hampshire, New Jersey lndividuals. Copies of jointly filed tax returns may Kansas City, MO be furnished to €ither spouse. Only one signature is lnternal Revenuo Service New York, North 64999 required. Sign Form 4506 exactly as your name Tax Forms and Publications Division Carolina, Ohio, Pennsylvania, Bhode appeared on the original return. lf you changed your 1111 Constitution Ave. NW, lR-6526 name, also sign your current name. Washington, DC20224. lsland, South Carolina, Vermont, Virginia, West Virginia Do not send the torm lo this address. lnstead, ses Where to flle on this page. Case 2:14-cv-01986-ILRL-JVM Document 151-3 Filed 12/02/19 Page 24 of 24 U.S Department of Justice Certification of Identity FORM APPROVED OMB NO. I t03-0016 EXPIRES 05/31/2020 Privacy Act Statement. In accordance with 28 CFR Section 16.41(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974,5 U.S.C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Requests will not be processed if this information is not fumished. False information on this form may subject the requester to criminal penalties under 18 U.S.C.",
"Section l00l and/or 5 U.S.C. Section 552a(iX3). Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1103-0016), Washington, DC 20503. 1 ROGER DALE MAGEE Full Name of Requester Citizenship Status 2 UNITED STATES Social Security Number t XXX-XX-XXXX Current Address Date of Birth 1112411964 Place of Birth OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a requester who is authorizing information relating to himself or herself to be released to another person. Further, pursuant to 5 U.S.C. Section 552a(b),I authorize the U,S.",
"Department of Justice to release any and all information relating to me to: Alex L.M. Ducros, ADA, La.22nd Jud. Dist., 21454 Koop Dr., Ste. 2G, Mandeville,LA 70471 (985) 276-6396 Print or Type Name I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C.",
"552a(i)(3) by a fine of not more than $5,000. n Signature Date t Nurn\" of individual who is the subject of the record(s) sought. 'Individual submitting a request under the Privacy Act of 197 4 must be either \"a citizen of the United States or an alien lawfully admitted for permanent residence,\" pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully admitted for permanent residence. 3 Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you. a Signature of individual who is the subject of the record sought. FORM DOJ.36I"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/115758526/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.9 EMAK WORLDWIDE, INC., EQUITY MARKETING, INC., SCI PROMOTION, INC., POP ROCKET, INC. LOGISTIX, INC., UPSHOT, INC., EMAK WORLDWIDE SERVICE CORP., CORINTHIAN MARKETING, INC., JOHNSON GROSSFIELD, INC., and EQUITY MARKETING HONG KONG, LTD., as Borrowers LOAN AND SECURITY AGREEMENT Dated as of March 29, 2006 $25,000,000 CERTAIN FINANCIAL INSTITUTIONS, as Lenders and BANK OF AMERICA, N.A., as Agent
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TABLE OF CONTENTS
Page SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION 1 1.1 Definitions 1 1.2 Accounting Terms 26 1.3 Certain Matters of Construction 26 SECTION 2. CREDIT FACILITIES 27 2.1 Revolver Commitment 27 2.2 Letter of Credit Facility 28 SECTION 3. INTEREST, FEES AND CHARGES 30 3.1 Interest 30 3.2 Fees 31 3.3 Computation of Interest, Fees, Yield Protection 32 3.4 Reimbursement Obligations 32 3.5 Illegality 33 3.6 Increased Costs 33 3.7 Capital Adequacy 34 3.8 Mitigation 34 3.9 Funding Losses 34 3.10 Maximum Interest 34 SECTION 4. LOAN ADMINISTRATION 35 4.1 Manner of Borrowing and Funding Revolver Loans 35 4.2 Defaulting Lender 36 4.3 Number and Amount of LIBOR Loans; Determination of Rate 36 4.4 Borrower Agent 36 4.5 One Obligation 37 4.6 Effect of Termination 37 SECTION 5. PAYMENTS 37 5.1 General Payment Provisions 37 5.2 Repayment of Revolver Loans 37 5.3 Payment of Other Obligations 38 5.4 Marshaling; Payments Set Aside 38 5.5 Post-Default Allocation of Payments 38 5.6 Application of Payments 39
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TABLE OF CONTENTS (continued)
Page 5.7 Loan Account; Account Stated 39 5.8 Taxes 39 5.9 Withholding Tax Exemption 39 5.10 Nature and Extent of Each Borrower’s Liability 40 SECTION 6. CONDITIONS PRECEDENT 43 6.1 Conditions Precedent to Initial Loans 43 6.2 Conditions Precedent to All Credit Extensions 46 6.3 Limited Waiver of Conditions Precedent 47 SECTION 7. COLLATERAL 47 7.1 Grant of Security Interest 47 7.2 Lien on Deposit Accounts; Cash Collateral 48 7.3 Real Estate Collateral 48 7.4 Other Collateral 48 7.5 No Assumption of Liability 49 7.6 Further Assurances 49 7.7 Foreign Subsidiary Stock 49 SECTION 8. COLLATERAL ADMINISTRATION 49 8.1 Borrowing Base Certificates 49 8.2 Administration of Accounts 49 8.3 Administration of Inventory 50 8.4 Administration of Equipment 51 8.5 Administration of Deposit Accounts; Securities Accounts 51 8.6 General Provisions 51 8.7 Power of Attorney 52 SECTION 9. REPRESENTATIONS AND WARRANTIES 53 9.1 General Representations and Warranties 53 9.2 Matters Relating to Collateral 58 9.3 Complete Disclosure 59 SECTION 10. COVENANTS AND CONTINUING AGREEMENTS 59 10.1 Affirmative Covenants 59 10.2 Negative Covenants 65 10.3 Financial Covenants 70
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TABLE OF CONTENTS (continued)
Page SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT 70 11.1 Events of Default 70 11.2 Remedies upon Default 72 11.3 License 72 11.4 Setoff 73 11.5 Remedies Cumulative; No Waiver 73 SECTION 12. AGENT 73 12.1 Appointment, Authority and Duties of Agent 73 12.2 Agreements Regarding Collateral and Field Examination Reports 74 12.3 Reliance By Agent 75 12.4 Action Upon Default 75 12.5 Ratable Sharing 75 12.6 Indemnification of Agent Indemnitees 75 12.7 Limitation on Responsibilities of Agent 76 12.8 Successor Agent and Co-Agents 76 12.9 Due Diligence and Non-Reliance 77 12.10 Replacement of Certain Lenders 77 12.11 Remittance of Payments and Collections 77 12.12 Agent in its Individual Capacity 78 12.13 Agent Titles 78 12.14 No Third Party Beneficiaries 78 SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS 78 13.1 Successors and Assigns 78 13.2 Participations 78 13.3 Assignments 79 13.4 Tax Treatment 80 13.5 Representation of Lenders 80 SECTION 14. MISCELLANEOUS 80 14.1 Consents, Amendments and Waivers 80 14.2 Indemnity 81 14.3 Notices and Communications 81 14.4 Performance of Borrowers’ Obligations 81
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TABLE OF CONTENTS (continued)
Page 14.5 Credit Inquiries 82 14.6 Severability 82 14.7 Cumulative Effect; Conflict of Terms 82 14.8 Counterparts; Facsimile Signatures 82 14.9 Entire Agreement 82 14.10 Obligations of Lenders 82 14.11 Confidentiality 82 14.12 GOVERNING LAW 83 14.13 Consent to Forum; Arbitration 83 14.14 Waivers by Borrowers 84 14.15 Patriot Act Notice 84
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A Revolver Note Exhibit B Assignment and Acceptance Exhibit C Assignment Notice Exhibit D Collateral Access Agreement Exhibit E Domestic Pledge Agreement Exhibit F Additional Borrower Counterpart Exhibit G Non-Offset Letter Exhibit H Imported Goods Agreement
Schedule 1.1A Revolver Commitments of Lenders Schedule 1.1B License Agreements Schedule 1.1C EBITDA Schedule 1.1D Specified Account Debtors Schedule 2.2.1 Existing Letters of Credit Schedule 7.3 Real Estate Schedule 8.5 Deposit Accounts and Securities Accounts Schedule 8.6.1 Business Locations Schedule 9.1.4 Names and Capital Structure Schedule 9.1.5 Former Names and Companies Schedule 9.1.8 Draft Financial Statements Schedule 9.1.12 Patents, Trademarks, Copyrights and Licenses Schedule 9.1.15 Environmental Matters Schedule 9.1.17 Restrictive Agreements Schedule 9.1.18 Litigation Schedule 9.1.20 Pension Plans Schedule 9.1.22 Labor Contracts Schedule 9.2.3 Third-Party Filings Schedule 10.1.2 Specified Liens Schedule 10.2.1 Existing Debt Schedule 10.2.2 Existing Liens Schedule 10.2.17 Existing Affiliate Transactions
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LOAN AND SECURITY AGREEMENT THIS LOAN AND SECURITY AGREEMENT is dated as of March 29, 2006 by and among EMAK WORLDWIDE, INC., a Delaware corporation (“EMAK”), EQUITY MARKETING, INC., a Delaware corporation (“EMI”), SCI PROMOTION, INC., a Delaware corporation (“SCI”), POP ROCKET, INC., a Delaware corporation (“Pop Rocket”), LOGISTIX, INC., a Delaware corporation (“Logistix”), UPSHOT, INC., a Delaware corporation (“Upshot”), EMAK WORLDWIDE SERVICE CORP., a Delaware corporation (“EMAK Worldwide”), CORINTHIAN MARKETING, INC., a Delaware corporation (“Corinthian”), JOHNSON GROSSFIELD, INC., a Delaware corporation (“Johnson”) and EQUITY MARKETING HONG KONG, LTD., a Delaware corporation (“Equity Marketing” and together with EMAK, EMI, SCI, Pop Rocket, Upshot, EMAK Worldwide, Corinthian, Johnson and future Subsidiaries executing this Agreement in accordance with Section 10.1.9, collectively referred to herein as “Borrowers”, and individually as a “Borrower”), the financial institutions party to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as agent for Lenders (“Agent”). R E C I T A L S: Borrowers have requested that Lenders make available a credit facility, to be used by Borrowers to finance their mutual and collective business enterprise. Lenders are willing to provide such credit facility on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows: SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION 1.1 Definitions. As used herein, the following terms have the meanings set forth below: AAA — as defined in Section 14.13. Account — as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered. Account Debtor — a Person who is obligated under an Account, Chattel Paper or General Intangible. Accounts Formula Amount — 85% of the Value of Eligible Accounts; provided, however, that such percentage shall be reduced by 1.0% for each 0.5 percentage point that the Dilution Percent exceeds 7.5%. Acquisition — any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all or any significant portion of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary (other than the creation of a newly formed Subsidiary of a Obligor), or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary); provided that a Borrower or a wholly-owned Subsidiary that becomes a Borrower is the surviving entity. Adjusted LIBOR — for any Interest Period, with respect to LIBOR Loans, the per annum rate of interest (rounded upward, if necessary, to the nearest 1/8th of 1%) appearing on Telerate Page 3750, or if such page is unavailable, the Reuters Screen LIBO Page (or any successor page of either, as applicable),
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as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if the Reuters Screen LIBO Page is used and more than one rate is shown on such page, the applicable rate shall be the arithmetic mean thereof. If for any reason none of the foregoing rates is available, the Offshore Base Rate shall be the rate per annum determined by Agent as the rate of interest at which Dollar deposits in the approximate amount of the applicable LIBOR Loan would be offered to major banks in the offshore Dollar market at or about 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If the Board of Governors shall impose a Reserve Percentage with respect to LIBOR deposits, then Adjusted LIBOR shall equal the amount determined above, divided by 1 minus the Reserve Percentage. Affiliate — with respect to any Person, another Person (a) who directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such first Person; (b) who beneficially owns 10% or more of the voting securities or of Equity Interests of such first Person; (c) at least 10% of whose voting securities or of Equity Interests is beneficially owned, directly or indirectly, by such first Person; or (d) who is an officer, director, partner or managing member of such first Person. “Control” means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person, whether through ownership of Equity Interests, by contract or otherwise. Agency of Record Agreement — any agency of record agreements between a Borrower and its customer providing for the performance of services by such Borrower in exchange for a fixed fee payable over time. Agent Indemnitees — Agent and its officers, directors, employees, Affiliates, agents and attorneys. Agent Professionals — attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent. Agreement — this Loan and Security Agreement, as amended, restated, extended, supplemented or otherwise modified in writing from time to time. Allocable Amount — as defined in Section 5.10.6. Anti-Terrorism Laws — any laws relating to terrorism or money laundering, including the Patriot Act. Applicable Law — all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities. Applicable Margin — with respect to any Base Rate Revolver Loans is 0.75% and with respect to any LIBOR Revolver Loans is 2.50%; provided, that during the Inventory Borrowing Period, to the extent that any portion of the Revolver Loans outstanding on any day would have exceeded the Borrowing Base as of such day but for the availability of the Inventory Formula Amount (such amount of the Revolver Loans being referred to herein as the “Inventory Borrowing Portion”), the Applicable Margin for such Revolver Loans that relate to the Inventory Borrowing Portion is (a) with respect to such Revolver Loans that are Base Rate Revolver Loans, 1.25% and (b) with respect to such Revolver Loans that are LIBOR Revolver Loans, 3.00% (it being understood and agreed that (i) if both Base Rate Revolver Loans and LIBOR Revolver Loans are outstanding on any day during the Inventory Borrowing Period, subject to clause (ii) below, any Base Rate Revolver Loans shall be deemed to relate first to the Inventory Borrowing Portion as of such day before any LIBOR Revolver Loans are deemed to relate to any part of
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such Inventory Borrowing Portion and (ii) if after giving effect to the foregoing clause (i) all or any portion of a LIBOR Loan is deemed to relate to all or any part of the Inventory Borrowing Portion, then the higher Applicable Margin (i.e., 3.00% instead of 2.50%) shall continue to apply to such LIBOR Loan (or the applicable part thereof as of such day) until the end of the applicable Interest Period whether or not the Inventory Borrowing Period terminates prior to the end of such Interest Period and whether or not such LIBOR Loan (or any part thereof) is no longer deemed to relate to all or any part of the Inventory Borrowing Portion (e.g., as a result of an increase in the Accounts Formula Amount or a decrease in the Inventory Borrowing Portion during the applicable Interest Period)); provided, that nothing in this definition shall authorize Borrowers to request a LIBOR Revolver Loan with respect to the Inventory Borrowing Portion. Approved Fund — any Person (other than a natural person) that is engaged in making, holding or investing in extensions of credit in its ordinary course of business and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either. Asset Disposition — a sale, lease, license, consignment, transfer or other disposition of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback transaction or synthetic lease. Assignment and Acceptance — an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit B. Attorney Costs — all reasonable fees and disbursements of any law firm or other external counsel and the reasonable allocated cost of internal legal services and all disbursements of internal counsel. Availability — determined as of any date, the amount that Borrowers are entitled to borrow as Revolver Loans, being the Borrowing Base minus the principal balance of all Revolver Loans. Availability Block — (i) in the event that each of BK, RSI and their respective Affiliates have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before June 30, 2006, the Availability Block from the Closing Date and thereafter shall be $0, (ii) in the event that RSI and its Affiliates (but not all of BK and its Affiliates) have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before June 30, 2006, the Availability Block from the Closing Date until June 30, 2006 shall be $0 and the Availability Block thereafter shall be the lesser of (a) $500,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK and its Affiliates from time to time, and (iii) otherwise, the Availability Block from the Closing Date until June 30, 2006 shall be $0 and the Availability Block thereafter shall be the lesser of (a) $1,000,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK, RSI and their respective Affiliates from time to time; provided, however, that if before June 30, 2006, an Inventory Borrowing Period occurs, (1) in the event that each of BK, RSI and their respective Affiliates have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent on or before the first day of such Inventory Borrowing Period, the Availability Block from the Closing Date and thereafter shall be $0, (2) in the event that RSI and its Affiliates (but not all of BK and its Affiliates) have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before the first day of such Inventory Borrowing Period, the Availability Block from the Closing Date until the day preceding the first day of such Inventory Borrowing Period shall be $0 and the Availability Block thereafter shall be the lesser of (a) $500,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK and its Affiliates from time to time, and (3) otherwise, the Availability Block from the Closing Date until the day preceding the first day of such Inventory Borrowing Period shall be $0 and the Availability Block thereafter shall be the lesser of (a)
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$1,000,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK, RSI and their respective Affiliates from time to time. Availability Reserve — the sum (without duplication) of (a) the Inventory Reserve; (b) the Rent and Charges Reserve; (c) the LC Reserve; (d) the Bank Product Reserve; (e) all accrued Royalties with respect to any Eligible Inventory and/or any Eligible Account that is included in the Borrowing Base, whether or not then due and payable by a Borrower; (f) the aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (g) the Availability Block; and (h) such additional reserves and in such amounts as Agent may determine in its sole discretion including without limitation those based upon (1) its consideration of any factor that it believes could result in the loss of any material customer of any Borrower, a disruption in the relationship between any Borrower or any of its customers or an adverse change in the business prospects or business mix of any Borrower, (2) the termination of, an amendment adverse to any Borrower or Lender, or the failure to renew, any agreement of any Borrower (including without limitation any Related Document), or (3) Agent’s consideration of any factor that it believes creates or could result in a Default or an Event of Default. Bank of America — Bank of America, N.A., a national banking association, and its successors and assigns. Bank of America Indemnitees — Bank of America and its officers, directors, employees, Affiliates, agents and attorneys. Bank Product — any of the following products, services or facilities extended to any Borrower or Subsidiary by Bank of America or any of its Affiliates: (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Borrower or Subsidiary, other than Letters of Credit. Bank Product Debt — Debt and other obligations of an Obligor relating to Bank Products. Bank Product Reserve — the aggregate amount of reserves established by Agent from time to time in its discretion in respect of Bank Product Debt. Bankruptcy Code — Title 11 of the United States Code. Base Rate — the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is a reference rate only and Bank of America may make loans or other extensions of credit at, above or below it. Any change in the prime rate announced by Bank of America shall take effect at the opening of business on the effective date specified in the public announcement of the change. Base Rate Revolver Loan — a Revolver Loan that bears interest based on the Base Rate. BK — Burger King Corporation, a Florida corporation. BK Agreements — the BK Services Agreements, the BK Supply Agreements, the RSI Supply Agreement and any other agreements entered into from time to time between BK, RSI or any of their respective Affiliates, on the one hand, and any Borrower or any of their respective Subsidiaries, on the other hand, and any material purchase orders and similar agreements or arrangements entered into from time to time with respect to any of the foregoing. BK Group — has meaning assigned to such term in the definition of Eligible Accounts. BK Services Agreements- (i) that certain Services Agreement dated as of October 1, 2002 between Equity Marketing, Inc. and BK, (ii) that certain Services Agreement effective as of July 1, 2004
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between EMAK and BK, and (iii) any other services agreements entered into from time to time between BK or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (to the extent in effect on the Closing Date) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21. BK Supply Agreements — (i) that certain Terms and Conditions of Supply Agreement dated as of October 1, 2002 between BK and Equity Marketing, Inc., (ii) that certain International Master Premium Supply Agreement dated as of October 1, 2002 between BK and Equity Marketing, Inc., and (iii) any other supply agreements entered into from time to time between BK or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (in the case of clauses (i) and (ii)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21. Board of Governors — the Board of Governors of the Federal Reserve System. Borrowed Money — with respect to any Obligor, without duplication, its (a) Debt that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Debt of the foregoing types owing by another Person. Borrower Agent — as defined in Section 4.4. Borrowers — has the meaning set forth in the introductory paragraph hereto. Borrowing — a group of Revolver Loans of one Type that are made on the same day or are converted into Revolver Loans of one Type on the same day. Borrowing Base — on any date of determination, an amount equal to the lesser of (a) the aggregate amount of Revolver Commitments, minus the LC Reserve, minus the Availability Block; or (b) the sum of the Accounts Formula Amount, plus, solely during the Inventory Borrowing Period, the Inventory Formula Amount, minus the Availability Reserve. Borrowing Base Certificate — a certificate, in form and substance satisfactory to Agent, by which Borrowers certify calculation of the Borrowing Base. Business Day — any day (a) excluding Saturday, Sunday and any other day on which banks are permitted to be closed under the laws of the States of North Carolina and California; and (b) when used with reference to a LIBOR Loan, also excluding any day on which banks do not conduct dealings in Dollar deposits on the London interbank market. Capital Adequacy Regulation — any law, rule, regulation, guideline, request or directive of any central bank or other Governmental Authority, whether or not having the force of law, regarding capital adequacy of a bank or any Person controlling a bank. Capital Expenditures — all liabilities incurred, expenditures made or payments due (whether or not made) by a Borrower or Subsidiary for the acquisition of any fixed assets, or any improvements, replacements, substitutions or additions thereto with a useful life of more than one year, including the principal portion of Capital Leases. Without limiting the generality of the foregoing, Capital Expenditures shall include, for any period, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized on the consolidated balance sheet of Borrowers and Subsidiaries) by Borrowers and Subsidiaries during that
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period that, in conformity with GAAP, are included in “additions to property, plant or equipment” or comparable items reflected in the consolidated statement of cash flows of Borrowers and Subsidiaries and shall include the aggregate of all expenditures by Borrowers and Subsidiaries during that period to acquire (by purchase or otherwise) the business, property or fixed assets of any Person, or the stock or other evidence of beneficial ownership of any Person that, as a result of such acquisition, becomes a Subsidiary of a Borrower. Notwithstanding the foregoing, to the extent that any Borrower receives a landlord reimbursement on or before June 30, 2006 with respect to certain Capital Expenditures in the form of tenant improvements made by such Borrower in January of 2006, up to $300,000 of such reimbursement received by such Borrower on or before June 30, 2006 shall reduce, dollar for dollar, the amount of Capital Expenditures in the form of tenant improvements made by such Borrower in January of 2006. Capital Lease — any lease that is required to be capitalized for financial reporting purposes in accordance with GAAP. Cash Collateral — cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Obligations. Cash Collateral Account — a demand deposit, money market or other account established by Agent at such financial institution as Agent may select in its discretion, which account shall be subject to Agent’s Liens for the benefit of Secured Parties. Cash Collateralize — the delivery of cash to Agent, as security for the payment of Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC Obligations, and (b) with respect to any inchoate or contingent Obligations (including Obligations arising under Bank Products), Agent’s good faith estimate of the amount due or to become due, including all fees and other amounts relating to such Obligations. “Cash Collateralization” has a correlative meaning. Cash Equivalents — (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the United States government, maturing within 12 months of the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by a commercial bank organized under the laws of the United States or any state or district thereof, rated A-1 (or better) by S&P or P-1 (or better) by Moody’s at the time of acquisition, and (unless issued by a Lender) not subject to offset rights; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank meeting the qualifications specified in clause (b); (d) commercial paper rated A-1 (or better) by S&P or P-1 (or better) by Moody’s, and maturing within nine months of the date of acquisition; and (e) shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Moody’s or S&P. Cash Management Services — any services provided from time to time by Bank of America or any of its Affiliates to any Borrower or Subsidiary in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automatic clearinghouse, controlled disbursement, depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft and/or wire transfer services. CERCLA — the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).
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Certificate of Designation — certain Certificate of Designation of Series AA Preferred Stock of EMAK filed with the Secretary of State of the State of Delaware on December 31, 2004 (and amended on September 2, 2005) pursuant to Section 151 of the General Corporation Law of the State of Delaware. Change of Control — an event or series of events by which: (a) EMAK ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in all Borrowers (other than EMAK), except for the consolidation or merger of one Borrower with another Borrower to the extent permitted under Section 10.2.9; (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and other than Crown so long as any such “person” or “group” does not become the “beneficial owner”, directly or indirectly, of 40% or more of the Equity Interests of EMAK entitled to vote for members of the board of directors of EMAK on a fully diluted basis) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 20% or more of the Equity Interests of EMAK entitled to vote for members of the board of directors or equivalent governing body of EMAK on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); (c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of EMAK cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); (d) any Person or two or more Persons acting in concert (other than Crown) shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of EMAK, or control over the Equity Interests of EMAK entitled to vote for members of the board of directors or equivalent governing body of EMAK on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 20% or more of the combined voting power of such securities; (e) all or substantially all of a Borrower’s assets are sold or transferred, other than sale or transfer to another Borrower; or
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(f) a “Change of Control” (whether as defined in the Certificate of Designation as in effect on the date hereof or as defined in the Certificate of Designation as amended after the date hereof). Chattel Paper — as defined in the UCC. Claims — all liabilities, obligations, losses, damages, penalties, judgments, proceedings, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in any way relating to (a) any Loan Documents or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto. Closing Date — as defined in Section 6.1. Collateral — all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations. Collateral Access Agreement — any landlord waiver, mortgagee waiver, bailee letter or any similar acknowledgement agreement of any landlord or mortgagee in respect of any Real Estate or other location where any Inventory is located or any warehouseman or processor in possession of Inventory (other than immaterial Inventory) (which locations, as of the date hereof, are set forth on Schedule 7.3), substantially in the form of Exhibit D annexed hereto, with such changes thereto as may be agreed to by Agent in the reasonable exercise of its discretion. Commercial Tort Claim — as defined in the UCC. Commitment Fee Rate — as defined in Section 3.2.1. Commitment Termination Date — the earliest to occur of (a) the Revolver Termination Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2. Commitment Utilization Percentage — for any day, the ratio of (a) the sum of (i) the principal amount of the Revolver Loans outstanding on such day plus (ii) the stated amount of Letters of Credit outstanding on such day to (b) the aggregate amount of Revolver Commitments for such day, expressed as a percentage. Common Stock — the common stock, $.001 par value, of EMAK. Common Warrants — those certain warrants dated March 19, 2004 issued to Crown pursuant to which Crown has the right to purchase 357,000 shares of Common Stock at $16.00 per share expiring March 29, 2010, 79,333 shares of Common Stock at $18.00 per share expiring March 29, 2010, 393,000 shares of Common Stock at $16.00 per share expiring June 20, 2010 and 87,333 shares of Common Stock at $18.00 per share expiring June 20, 2010. Compliance Certificate — a certificate, in form and substance satisfactory to Agent, by which Borrowers certify compliance with Sections 10.2.3 and 10.3.
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Conforming Letter of Credit — (a) an irrevocable letter of credit satisfactory to Agent (as to form, substance and issuer) that is assigned to and directory drawable by Agent (unless such assignment and direct drawability is waived by Agent), or (b) an irrevocable letter of credit satisfactory to Agent (as to form, substance and issuer) with respect to which Agent has a perfected first priority Lien in the letter of credit rights thereunder. Contingent Obligation — any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Contractual Obligation — as to any Person, any provision of any security issued by such Person or of any agreement, instrument, mortgage or undertaking to which such Person is a party or by which it or any of its property is bound or to which it or any of its properties is subject. Corinthian — Corinthian Marketing, Inc., a Delaware corporation. Crown — Crown EMAK Partners, LLC, a Delaware limited liability company formerly known as Crown Acquisition Partners, LLC. CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Debt — as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default — an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate — for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto. Deposit Account — as defined in the UCC. Deposit Account Control Agreements — the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a Borrower, in favor of Agent, for the benefit of Secured Parties, as security for the Obligations. Dilution Percent — the percent, determined on a trailing twelve month basis as of the end of Borrowers’ most recent month, equal to (a) credit memos issued for bad debt write-downs or write-offs,
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discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts, divided by (b) gross sales. Disney — The Walt Disney Company and its Affiliates. Document — as defined in the UCC. Dollars — lawful money of the United States. Domestic Pledge Agreement — the pledge agreement substantially in the form of Exhibit E, executed and delivered by Borrowers to Agent on the Closing Date, as amended, supplemented or otherwise modified from time to time. Domestic Subsidiary — a Subsidiary that is not a Foreign Subsidiary. Dominion Account — a special account established by Borrowers at Bank of America or another bank acceptable to Agent, over which Agent has exclusive control for withdrawal purposes, which account shall initially be a Bank of America account, account number 14591-38332 (which account may only be changed with the prior written consent of Agent). Draft Financial Statements — the draft consolidated financial statements of EMAK for Fiscal Year 2005 attached hereto as Schedule 9.1.8. EBITDA — for any period, determined on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries), the sum, without duplication, of the amounts for such period of (i) net income, (ii) interest expense, (iii) provision for income taxes, (iv) depreciation and amortization expense, (v) other non-cash items consisting of stock-based compensation for which no future cash disbursements will be made, and (vi) to the extent not included in any of the foregoing, (a) to the extent such period includes any of the months in Fiscal Year 2005, the non-recurring restructuring charges set forth in Schedule 1.1C hereto for such months, and (b) to the extent such period includes any of the months in Fiscal Year 2006, the lesser of (I) the non-recurring restructuring charges set forth in Schedule 1.1C hereto for such months and (II) the actual amount of such non-recurring restructuring charges that fall within such items for such months, but only, in the case of clauses (ii)-(vi), to the extent deducted in the calculation of net income, less (i) gains arising from the sale of capital assets or from the write-up of assets, (ii) extraordinary gains, and (iii) non-cash items added in the calculation of net income. Eligible Account — an Account owing to a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its discretion, to be an Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days (or, (i) solely if the Account Debtor is a member of the BK Group (as defined below), 60 days and (ii) solely if the Account Debtor is any of Target, Sunoco, Disney, P&G, Kellogg or MBC, 120 days) after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor and its Affiliates are not Eligible Accounts under the foregoing clause; (c) when aggregated with other Accounts owing by such Account Debtor and its Affiliates or any designated group of Account Debtors and their Affiliates, as the case may be, it exceeds 10% of the aggregate Eligible Accounts (or such higher percentage (the “Applicable Concentration Percentage”) as Agent may designate for such Account Debtor and its Affiliates or for any group of Account Debtors and their Affiliates from time to time), provided that (i) the Applicable Concentration Percentage for all of Supply Chain, RSI and BK and their Affiliates, collectively as a group (such group being referred to herein as the “BK Group”), shall be 50%, provided further that the aggregate Value of such Accounts of Account Debtors in the BK Group that remain unpaid between 31 and 60 days after the original invoice date shall not exceed 15% of all Eligible Accounts of Account Debtors in the BK Group included hereunder pursuant to this clause (c)(i) except to
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the extent such Accounts originally arose on extended terms with the prior written approval of Agent in its sole discretion, (ii) the Applicable Concentration Percentage for each of Disney, P&G, Kellogg and MBC is 25%, and (iii) the Applicable Concentration Percentage for MidAmerica Overseas is 15%; (d) it does not conform with a covenant or representation herein; (e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset (including without limitation a potential offset which will permit such Account Debtor to make offset payments to third parties), counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; (g) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada except to the extent the Account is supported by a Conforming Letter of Credit or the Account Debtor is an Affiliate of a company headquartered in the United States and specified on Schedule 1.1D; (h) it is owing by a Government Authority, unless the Account Debtor is the United States or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the Assignment of Claims Act; (i) it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any other Lien; (j) the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis; (m) it arises from a sale to an Affiliate, or from a sale on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis; (n) it represents a progress billing or retainage (other than that portion of such Accounts under an Agency of Record Agreement with respect to which a Borrower has recognized revenue thereunder pursuant to GAAP and has fully rendered services related to the applicable billing period; provided that such portion shall not be subject to any dispute or any claims of offset); (o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; (p) it arises from a retail sale to a Person who is purchasing for personal, family or household purposes; (q) if the applicable Account Debtor is not a member of the BK Group and if the contract or agreement under or with respect to which any Account of such Account Debtor or any of its Affiliates arises contains a liquidated damages provision or any express offset provision and such Account Debtor or any of its Affiliates has not delivered a fully executed Non-Offset Letter to Agent that would apply to such Account; or (r) if the applicable Account Debtor is not a member of the BK Group and if the contract or agreement under or with respect to which any Account of such Account Debtor or any of its Affiliates arises does not contain any liquidated damages provision or any express offset provision and such Account Debtor or any of its Affiliates has not delivered a fully executed Non-Offset Letter to Agent that would apply to such Account (other than such Accounts described in this clause (r) (that would otherwise be Eligible Accounts) to the extent that inclusion of such Accounts pursuant to this parenthetical would not result in an aggregate increase in Eligible Accounts in an amount greater than (i) during the period from the Closing Date until September 30, 2006, the lesser of (1) $3,500,000 and (2) 30% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, (ii) during the period from October 1, 2006 until March 31, 2007, the lesser of (1) $3,000,000 and (2) 25% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, (iii) during the period from April 1, 2007 until September 30, 2007, the lesser of (1) $2,000,000 and (2) 20% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, and (iv) thereafter, the lesser of (1) $1,000,000 and (2) 15% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group) at any time. In calculating delinquent portions of Accounts, credit balances more than 90 days old will be excluded.
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Eligible Assignee — a Person that is (a) a Lender, U.S.-based Affiliate of a Lender or Approved Fund; (b) any other financial institution approved by Agent and Borrower Agent (which approval by Borrower Agent shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within two Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset-based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Agent in its discretion. Eligible Inventory — Inventory owned by a Borrower that Agent, in its discretion, deems to be Eligible Inventory. Without limiting the foregoing, no Inventory shall be Eligible Inventory unless it (a) is finished goods, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies; (b) is not held on consignment, nor subject to any deposit or downpayment; (c) is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale; (d) is not slow-moving, obsolete or unmerchantable, and does not constitute returned or repossessed goods; (e) meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any Environmental Law; (f) conforms with the covenants and representations herein; (g) is subject to Agent’s duly perfected, first priority Lien, and no other Lien; (h) is within the continental United States or Canada and is not in transit except between locations of Borrowers, other than Inventory in transit to the United States from vendors or suppliers (or from any Borrower or any of their respective Subsidiaries) with respect to which Agent’s first priority Lien is duly perfected and otherwise protected to Agent’s satisfaction in its sole discretion (which shall include, without limitation, a fully executed Imported Goods Agreement with respect to such Inventory in transit, satisfactory cargo insurance, a negotiable bill of lading naming Agent as the consignee thereof, and any other requirements required by Agent in its sole discretion); (i) is not subject to any warehouse receipt or negotiable Document and is not consigned to any Person; (j) is owned solely by the applicable Borrower or such Borrower has good, valid and marketable title thereto; (k) it is subject to a purchase order or other firm delivery contract (which may be an oral agreement that is followed by a written contract in the ordinary course of business) under a Program Sales Contract or other similar contract with Persons satisfactory to Agent (which approval shall not be unreasonably withheld); and (l) is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established. EMAK — EMAK Worldwide, Inc., a Delaware corporation. EMI — Equity Marketing, Inc., a Delaware corporation. Enforcement Action — any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Agreement — each agreement of Borrowers with respect to any Real Estate subject to a Mortgage, pursuant to which Borrowers agree to indemnify and hold harmless Agent and Lenders from liability under any Environmental Laws. Environmental Laws — all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice — a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation
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relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release — a release as defined in CERCLA or under any other Environmental Law. Equipment — as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest — the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. Equity Marketing — Equity Marketing Hong Kong, Ltd., a Delaware corporation. ERISA — the Employee Retirement Income Security Act of 1974. Event of Default — as defined in Section 11.1. Excluded Tax — Tax on the overall net income or gross receipts of a Lender imposed by the jurisdiction in which such Lender’s principal executive office is located. Existing Credit Agreement — the Credit Agreement dated as of April 21, 2001 among EMAK, as borrower, Bank of America, as administrative agent, swingline lender and letter of credit issuing lender and the other financial institutions party thereto, as amended, supplemented or otherwise modified from time to time on or prior the date hereof. Existing Letters of Credit — as defined in Section 2.2.1(e). Extraordinary Expenses — all costs, expenses or advances that Agent may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents or Obligations, including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; or (g) Protective Advances. Such costs, expenses and advances include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses. Fiscal Quarter — a fiscal quarter of any Fiscal Year, which ends on March 31, June 30, September 30 and December 31 of each calendar year. Fiscal Year — the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes, ending on December 31 of each year.
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Fixed Charge Coverage Ratio — the ratio, determined on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) for the most recent 12-month period, of (a) EBITDA, to (b) Fixed Charges. Fixed Charges — for any period, the sum of cash interest expense paid or payable, Capital Expenditures, principal payments made on Borrowed Money (other than repayments of principal under this Agreement), net cash taxes paid or payable during such period (but in any event not less than zero) and Restricted Payments made (excluding Restricted Payments made to the extent permitted under Section 10.2.4(b) and (c), it being understood that such exclusion shall not exclude from Fixed Charges interest expense, Capital Expenditures, principal payments or taxes paid with such Restricted Payments). FLSA — the Fair Labor Standards Act of 1938. Foreign Lender — any Lender that is organized under the laws of a jurisdiction other than the laws of the United States, or any state or district thereof. Foreign Plan — any employee benefit plan or arrangement maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States, or any employee benefit plan or arrangement mandated by a government other than the United States for employees of any Obligor or Subsidiary. Foreign Security Agreement — each security agreement or similar instrument governed by the laws of a country other than the United States, executed (i) on the Closing Date by EMAK, Equity Marketing and certain UK Subsidiaries, and (ii) from time to time after the Closing Date in accordance with Section 10.1.9, in each case in form and substance reasonably satisfactory to Agent, as such Foreign Security Agreement may be amended, supplemented or otherwise modified from time to time. Foreign Subsidiary — a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Internal Revenue Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on the assets of such Subsidiary to secure the Obligations would result in material tax liability to Borrowers. Full Payment — with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its discretion, in the amount of required Cash Collateral); and (c) a release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the payment date. No Loans shall be deemed to have been paid in full until all Revolver Commitments related to such Loans have expired or been terminated. GAAP — generally accepted accounting principles in the United States in effect from time to time. General Intangibles — as defined in the UCC, including causes in action, causes of action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all rights to indemnification, and all other intangible Property of any kind. Goods — as defined in the UCC. Governmental Approvals — all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.
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Governmental Authority — any federal, state, municipal, foreign or other governmental department, agency, commission, board, bureau, court, tribunal, instrumentality, political subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or administrative functions for or pertaining to any government or court, in each case whether associated with the United States, a state, district or territory thereof, or a foreign entity or government. Guarantor Payment — as defined in Section 5.10.6. Guarantors — collectively, each Person who guarantees payment or performance of any Obligations. Guaranty — each guaranty agreement executed by a Guarantor in favor of Agent. Hedging Agreement — an agreement relating to any swap, cap, floor, collar, option, forward, cross right or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign exchange, currency, commodity, credit or equity risk. HK Subsidiaries — collectively, EMAK Asia Holdings Company Limited, a Hong Kong company, EMAK China Limited, a Hong Kong company, EMAK Hong Kong Limited, a Hong Kong company, and any other Foreign Subsidiary organized under the laws of Hong Kong. Imported Goods Agreement — an agreement among any Borrower, its customs broker and Agent, substantially in the form of Exhibit H annexed hereto, with such changes hereto as may be agreed to by Agent in its discretion. Indemnitees — Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees. Insolvency Proceeding — any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors. Instrument — as defined in the UCC. Insurance Assignment — each collateral assignment of insurance pursuant to which an Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s rights under key-man life, business interruption or other insurance policies as Agent deems appropriate, as security for the Obligations. Intellectual Property — all intellectual and similar Property of a Person, including inventions, designs, patents, patent applications, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, registrations and franchises; all books and records describing or used in connection with the foregoing; and all licenses or other rights to use any of the foregoing. Intellectual Property Claim — any claim or assertion (whether in writing, by suit or otherwise) that a Borrower’s or Subsidiary’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property. Interest Period — as defined in Section 3.1.3.
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Inventory — as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment). Inventory Borrowing Period — up to three 30-day periods during Fiscal Year 2006 as determined by Borrower Agent in its discretion by written notice to Agent not less than ten Business Days prior to the commencement of such period; provided however that no Inventory Borrowing Period shall commence until Agent shall have completed a field examination with respect to the Inventory of Borrowers in form and substance satisfactory to Agent. Inventory Borrowing Portion — as defined in the definition of “Applicable Margin.” Inventory Formula Amount — the lesser of (a) $1,500,000; or (b) 15% of the Value of Eligible Inventory. Inventory Reserve — reserves established by Agent to reflect factors that may negatively impact the Value of Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor chargebacks. Investment — any acquisition of all or substantially all assets of a Person; any acquisition of record or beneficial ownership of any Equity Interests of a Person or any significant portion of the assets of a Person or of any business or division of a Person; or any advance or capital contribution to or other investment in a Person. Investment Property — as defined in the UCC. Issuing Bank — Bank of America or an Affiliate of Bank of America. Issuing Bank Indemnitees — Issuing Bank and its officers, directors, employees, Affiliates, agents and attorneys. Johnson — Johnson Grossfield, Inc., a Delaware corporation. Kellogg — Kellogg Company and its Affiliates. LC Application — an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance satisfactory to Issuing Bank. LC Conditions — the following conditions necessary for issuance of a Letter of Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no Revolver Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of Credit, (ii) no more than 120 days from issuance, in the case of documentary Letters of Credit, and (iii) at least 20 Business Days prior to the Revolver Termination Date; (d) the Letter of Credit and payments thereunder are denominated in Dollars; and (e) the form of the proposed Letter of Credit is satisfactory to Agent and Issuing Bank in their discretion. LC Documents — all documents, instruments and agreements (including LC Requests and LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any Letter of Credit.
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LC Obligations — the sum (without duplication) of (a) all amounts owing by Borrowers for any drawings under Letters of Credit; (b) the aggregate undrawn amount of all outstanding Letters of Credit; and (c) all fees and other amounts owing with respect to Letters of Credit. LC Request — a request for issuance of a Letter of Credit, to be provided by Borrower Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank. LC Reserve — the aggregate of all LC Obligations, other than (a) those that have been Cash Collateralized, and (b) if no Default or Event of Default exists, those constituting charges owing to the Issuing Bank. Lender Indemnitees — Lenders and their officers, directors, employees, Affiliates, agents and attorneys. Lenders — as defined in the preamble to this Agreement, including Agent in its capacity as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance. Letter of Credit — any standby or documentary letter of credit issued by Issuing Bank for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower and the Existing Letters of Credit. Letter-of-Credit Right — as defined in the UCC. Letter of Credit Subline — $10,000,000. LIBOR Loan — each set of LIBOR Revolver Loans having a common length and commencement of Interest Period. LIBOR Revolver Loan — a Revolver Loan that bears interest based on Adjusted LIBOR. License — any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business. License Agreements — each of the license agreements listed on Schedule 1.1B annexed hereto, as such agreements are in effect on the Closing Date and as such agreements may be amended from time to time thereafter to the extent permitted under Section 10.2.21 of this Agreement. Licensor — any Person from whom an Obligor obtains the right to use any Intellectual Property. Lien — any Person’s interest in Property securing an obligation owed to, or a claim by, such Person, whether such interest is based on common law, statute or contract, including liens, security interests, pledges, hypothecations, statutory trusts, reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting Property. Lien Waiver — an agreement, in form and substance satisfactory to Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral (including, without limitation Collateral Access Agreements); (b) for any Collateral held by a warehouseman, processor, shipper or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents
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in its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License. Loan — any advance made by any Lender to Borrowers as provided in Section 2.1 (collectively, the “Loans”), and may be a Base Rate Revolver Loan or an LIBOR Loan, and includes any Revolver Loan. Loan Account — the loan account established by each Lender on its books pursuant to Section 5.7.1. Loan Documents — this Agreement, Other Agreements and Security Documents. Loan Year — each calendar year commencing on the Closing Date and on each anniversary of the Closing Date. Logistix — Logistix, Inc., a Delaware corporation. Margin Stock — as defined in Regulation U of the Board of Governors. Material Adverse Effect — the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, operations, Properties, prospects or condition (financial or otherwise) of EMI or Borrowers taken as a whole, on the value of any material Collateral, on the enforceability of any Loan Documents, or on the validity or priority of Agent’s Liens on any Collateral; (b) impairs the ability of any Obligor to perform any obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise impairs the ability of Agent or any Lender to enforce or collect any Obligations or to realize upon any Collateral. Material Contract — any agreement or arrangement to which a Borrower or Subsidiary is party (other than the Loan Documents) (a) that is a Related Document, (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect, or (c) that relates to Subordinated Debt, or Debt in an aggregate amount of $1,000,000 or more. MBC — Miller Brewing Company and its Affiliates. Moody’s — Moody’s Investors Service, Inc., and its successors. Mortgage — each mortgage, deed of trust or deed to secure debt pursuant to which a Borrower grants to Agent, for the benefit of Secured Parties, Liens upon the Real Estate owned by such Borrower, as security for the Obligations. Multiemployer Plan — any employee benefit plan or arrangement described in Section 4001(a)(3) of ERISA that is maintained or contributed to by any Obligor or Subsidiary. Net Proceeds — with respect to an Asset Disposition, proceeds (including, when received, any deferred or escrowed payments) received by a Borrower or Subsidiary in cash from such disposition, net of (a) reasonable and customary costs and expenses actually incurred in connection therewith, including legal fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien
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senior to Agent’s Liens on Collateral sold; (c) transfer or similar taxes; and (d) reserves for indemnities, until such reserves are no longer needed. Negative Pledge — a Contractual Obligation that restricts Liens on Property. Non-Offset Letter — any letter or any similar acknowledgement agreement of any Account Debtor of any Borrower, substantially in the form of Exhibit G annexed hereto, with such changes thereto as may be agreed to by Agent in its discretion. Notice of Borrowing — a Notice of Borrowing to be provided by Borrower Agent to request the funding of a Borrowing of Revolver Loans, in form satisfactory to Agent. Notice of Conversion/Continuation — a Notice of Conversion/Continuation to be provided by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in form satisfactory to Agent. Obligations — all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees and other sums payable by Obligors under Loan Documents, (d) obligations of Obligors under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several. Obligor — each Borrower, Guarantor, or other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations. Ordinary Course of Business — the ordinary course of business of any Borrower or Subsidiary, consistent with past practices and undertaken in good faith. Organic Documents — with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person. OSHA — the Occupational Safety and Hazard Act of 1970. Other Agreement — each Note; LC Document; Lien Waiver; Real Estate Related Document; Collateral Access Agreement; Borrowing Base Certificate, Compliance Certificate, financial statement or report delivered hereunder; or other document, instrument or agreement (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transactions relating hereto. Other Customer Agreements — (i) that certain Promotional Services and Materials Agreement dated as of March 1, 2005 between P&G and Upshot, Inc., (ii) that certain Consultant Services Agreement dated as of April 1, 2003 between Disney Vacation Development, Inc. and Equity Marketing, Inc., (iii) that certain Master Promotional Services Agreement dated as of April 1, 2005 between Miller Products Company and Upshot, Inc., (iv) that certain Premium Supply Agreement dated as of March 14, 2006 among Kellogg North America Company, Kellogg Canada, Inc. and Logistix, Inc., (v) that certain Promotional Services Agreement dated as of April 1, 2005 among Foster’s USA, LLC and Upshot, Inc., (vi) that certain Premium Supplier Agreement dated as of January 1, 2005 among Kraft Foods Global,
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Inc. (North America Commercial) and SCI and (vii) any other services or supply agreements entered into from time to time between Borrower or any of its Subsidiaries and any of its customers, in each case as such agreement is in effect on the Closing Date (in the case of clauses (i) through (vi)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21. Overadvance — as defined in Section 2.1.5. Overadvance Loan — a Base Rate Revolver Loan made when an Overadvance exists or is caused by the funding thereof. P&G — The Proctor & Gamble Company and its Affiliates. Participant — as defined in Section 13.2. Patent Assignment — each patent collateral assignment agreement pursuant to which an Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s interests in its patents, as security for the Obligations. Patriot Act — the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). Payment Intangible — as defined in the UCC. Payment Item — each check, draft or other item of payment payable to a Borrower, including those constituting proceeds of any Collateral. Permitted Asset Disposition — as long as no Default or Event of Default exists and all Net Proceeds are remitted to the Dominion Account, an Asset Disposition that is (a) a sale of Inventory in the Ordinary Course of Business; (b) a disposition of Equipment that, in the aggregate during any 12 month period, has a fair market or book value (whichever is more) of $250,000 or less; (c) a disposition of Inventory that is obsolete, unmerchantable or otherwise unsalable in the Ordinary Course of Business; (d) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from an Obligor’s default; or (e) approved in writing by Agent and Required Lenders. Permitted Contingent Obligations — Contingent Obligations (a) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (e) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of Equipment permitted hereunder; (f) arising under the Loan Documents; or (g) in an aggregate amount of $250,000 or less at any time. Permitted Lien — as defined in Section 10.2.2. Permitted Purchase Money Debt — Purchase Money Debt of Borrowers and Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount does not exceed $1,000,000 at any time and its incurrence does not violate Section 10.2.3. Person — any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity.
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Plan — an employee pension benefit plan that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and that is either (a) maintained by a Borrower or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which a Borrower or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions. Pledged Collateral — means the “Pledged Collateral” as defined in the Domestic Pledge Agreement or any Foreign Security Agreement. Pop Rocket — Pop Rocket, Inc., a Delaware corporation. Preferred Stock — the Series AA Preferred Stock. Pro Rata — with respect to any Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined (a) while Revolver Commitments are outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and (b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate amount of all outstanding Loans and LC Obligations. Prodesign — as defined in Section 10.1.16. Program Sales — the promotional programs for BK or RSI, and any Affiliates thereof, which are serviced by Borrowers or Subsidiaries. Program Sales Contract — any contract or other arrangement relating to Program Sales between BK or RSI, or any Affiliates thereof, and any Borrowers or Subsidiaries. Properly Contested — with respect to any obligation of an Obligor, (a) the obligation is subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment could not have a Material Adverse Effect, nor result in forfeiture or sale of any assets of the Obligor; (e) no Lien is imposed on assets of the Obligor, unless bonded and stayed to the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review. Property — any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible. Protective Advances — as defined in Section 2.1.6. PTO — the United States Patent and Trademark Office or any successor or substitute office in the United States in which filings are necessary or, in the opinion of Agent, desirable in order to create or perfect Liens on any Intellectual Property Collateral. Purchase Money Debt — (a) Debt (other than the Obligations) for payment of any of the purchase price of fixed assets; (b) Debt (other than the Obligations) incurred within ten days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof. Purchase Money Lien — a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Debt and constituting a Capital Lease or a purchase money security interest under the UCC.
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RCRA — the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i). Real Estate — all right, title and interest (whether as owner, lessor or lessee) in any real Property or any buildings, structures, parking areas or other improvements thereon. Refinancing Conditions — the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that does not exceed the principal amount of the Debt being extended, renewed or refinanced; (b) it has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed or refinanced; (d) the representations, covenants and defaults applicable to it are no less favorable to Borrowers than those applicable to the Debt being extended, renewed or refinanced; (e) no additional Lien is granted to secure it; (f) no additional Person is obligated on such Debt; and (g) upon giving effect to it, no Default or Event of Default exists. Refinancing Debt — Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(d). Registration Rights Agreement - that certain Registration Rights Agreement dated as of March 29, 2000 by and between EMAK and Crown, as such agreement is in effect on the Closing Date and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21 of this Agreement. Reimbursement Date — as defined in Section 2.2.2. Related Documents — the Securities Purchase Agreement, the Warrants, the Registration Rights Agreement, the Certificate of Designation, the BK Services Agreements, the BK Supply Agreements, the Other Customer Agreements, any other BK Agreements, and the RSI Supply Agreements. Related Real Estate Documents — with respect to any Real Estate subject to a Mortgage, the following, in form and substance satisfactory to Agent and received by Agent for review at least 15 days prior to the effective date of the Mortgage: (a) a mortgagee title policy (or binder therefor) covering Agent’s interest under the Mortgage, in a form and amount and by an insurer acceptable to Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as Agent may require with respect to other Persons having an interest in the Real Estate; (c) a current, as-built survey of the Real Estate, containing a metes-and-bounds property description and flood plain certification, and certified by a licensed surveyor acceptable to Agent; (d) flood insurance in an amount, with endorsements and by an insurer acceptable to Agent, if the Real Estate is within a flood plain; (e) a current appraisal of the Real Estate, prepared by an appraiser acceptable to Agent, and in form and substance satisfactory to Required Lenders; (f) an environmental assessment, prepared by environmental engineers acceptable to Agent, and accompanied by such reports, certificates, studies or data as Agent may reasonably require, which shall all be in form and substance satisfactory to Required Lenders; and (g) an Environmental Agreement and such other documents, instruments or agreements as Agent may reasonably require with respect to any environmental risks regarding the Real Estate. Rent and Charges Reserve — the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve at least equal to three months rent and other charges that could be payable to any such Person less the amount of any L/C Obligations securing such obligations, unless it has executed a Lien Waiver. Report — as defined in Section 12.2.3.
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Reportable Event — any event set forth in Section 4043(b) of ERISA. Required Lenders — Lenders (subject to Section 4.2) having (a) Revolver Commitments in excess of 66 2/3% of the aggregate Revolver Commitments; and (b) if the Revolver Commitments have terminated, Loans in excess of 66 2/3% of all outstanding Loans. Reserve Percentage — the reserve percentage (expressed as a decimal, rounded upward to the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the Board of Governors for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”). Restricted Investment — any Investment by a Borrower or Subsidiary, other than (a) Investments in Subsidiaries to the extent existing on the Closing Date; (b) Cash Equivalents that are subject to Agent’s Lien and control, pursuant to documentation in form and substance satisfactory to Agent; and (c) loans and advances permitted under Section 10.2.7. Restricted Payment — (a) the declaration or payment of any dividend or distribution by a Borrower or Subsidiary, either in cash or property, on any shares of the capital stock of any class or any other Equity Interests of such Borrower or Subsidiary (other than dividends or other distributions payable solely in shares of capital stock of a Borrower or Subsidiary or payable by a Subsidiary to a Borrower); (b) the purchase, redemption or retirement by a Borrower or Subsidiary of any shares of its capital stock of any class or any warrants, rights or options to purchase or acquire any shares of its capital stock or any other Equity Interests, whether directly or indirectly; (c) any other payment or distribution by a Borrower or Subsidiary in respect of its capital stock, either directly or indirectly (other than dividends or other distributions payable solely in shares of capital stock or any other Equity Interests of a Borrower or Subsidiary or payable by a Subsidiary to a Borrower); (d) any prepayment, repayment, redemption, defeasance or other acquisition or retirement for value (i) of any Debt to a holder of Equity Interests or (ii) of Subordinated Debt; and (e) any payment of cash by any Borrower to any HK Subsidiary, any UK Subsidiary or any other Foreign Subsidiary. Restrictive Agreement — an agreement (other than a Loan Document) that conditions or restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed Money, to grant Liens on any assets, to declare or make Restricted Payments, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Debt. Revolver Commitment — for any Lender, its obligation to make Revolver Loans and to participate in the LC Obligations up to the maximum principal amount shown on Schedule 1.1A, or as specified hereafter in the most recent Assignment and Acceptance to which it is a party. “Revolver Commitments” means the aggregate amount of such commitments of all Lenders. Revolver Loan — a loan made pursuant to Section 2.1, and any Swingline Loan, Overadvance Loan or Protective Advance. Revolver Note — a promissory note to be executed by Borrowers in favor of a Lender in the form of Exhibit A, which shall be in the amount of such Lender’s Revolver Commitment and shall evidence the Revolver Loans made by such Lender. Revolver Termination Date — March 29, 2009. Royalties — all royalties, fees, expense reimbursement and other amounts payable by a Borrower under a License. RSI — Restaurant Services, Inc., a Delaware corporation.
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RSI Supply Agreements — (i) that certain Fifth Amended and First Restated Master Supply Agreement, dated as of May 15, 2002, by and between RSI and EMAK, and (ii) any other supply agreements entered into from time to time between RSI or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (in the case of clause (i)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.2. SCI — SCI Promotion, Inc., a Delaware corporation. S&P — Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors. Secured Parties — Agent, Issuing Bank, Lenders and providers of Bank Products. Securities Account — as defined in the UCC. Securities Account Control Agreement — each securities account control agreement executed and delivered by an Obligor, Agent and a securities intermediary, in form and substance satisfactory to Agent, covering each of the Securities Accounts established with such securities intermediary, as such Securities Account Control Agreement may be amended, supplemented or otherwise modified from time to time, and “Securities Account Control Agreements” means all such Securities Account Control Agreements, collectively. Securities Purchase Agreement — that certain Securities Purchase Agreement dated as of March 29, 2000 by and between Crown and EMAK, as amended (i) by that certain Amendment No. 1 to Securities Purchase Agreement dated as of May 5, 2000 by and between Crown and EMAK, (ii) by that certain Amendment No. 2 to Securities Purchase Agreement dated as of June 1, 2000 by and between Crown and EMAK, and (iii) may be amended from to time to time to the extent permitted under Section 10.2.21 of this Agreement. Security Documents — the Domestic Pledge Agreement, Foreign Security Agreements, Guaranties, Mortgages, Patent Assignments, Trademark Security Agreements, Insurance Assignments, Deposit Account Control Agreements, Securities Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations. Senior Officer — the chairman of the board, president, chief executive officer or chief financial officer (or vice president-finance or vice president-controller) or executive vice president of a Borrower or, if the context requires, an Obligor. Series AA Preferred Stock — the Series AA Senior Cumulative Participating Convertible Preferred Stock of EMAK, par value $0.001 per share. Settlement Report — a report delivered by Agent to Lenders summarizing the Revolver Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Revolver Commitments. Software — as defined in the UCC. Solvent — as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they
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mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase. Statutory Reserves — the percentage (expressed as a decimal) established by the Board of Governors as the then stated maximum rate for all reserves (including those imposed by Regulation D of the Board of Governors, all basic, emergency, supplemental or other marginal reserve requirements, and any transitional adjustments or other scheduled changes in reserve requirements) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency Liabilities (or any successor category of liabilities under Regulation D). Subordinated Debt — Debt incurred by a Borrower that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) satisfactory to Agent. Subsidiary — any entity at least 50% of whose voting securities or Equity Interests is owned by a Borrower or any combination of Borrowers (including indirect ownership by a Borrower through other entities in which the Borrower directly or indirectly owns 50% of the voting securities or Equity Interests). Supporting Obligation — as defined in the UCC. Supply Chain — Supply Chain Services LLC and its Affiliates. Swingline Loan — any Borrowing of Base Rate Revolver Loans funded with Agent’s funds, until such Borrowing is settled among Lenders pursuant to Section 4.1.3. Sunoco — Sunoco, Inc. and its Affiliates. Target — Target Corporation and its Affiliates. Taxes — any taxes, levies, imposts, duties, fees, assessments, deductions, withholdings or other charges of whatever nature, including income, receipts, excise, property, sales, use, transfer, license, payroll, withholding, social security, franchise, intangibles, stamp or recording taxes imposed by any Governmental Authority, and all interest, penalties and similar liabilities relating thereto. Threshold Amount — $500,000. Trademark Security Agreement — each trademark security agreement pursuant to which an Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in trademarks, as security for the Obligations. Transferee — any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations. Type — any type of a Revolver Loan (i.e., Base Rate Revolver Loan or LIBOR Loan) that has the same interest option and, in the case of LIBOR Loans, the same Interest Period.
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UCC — the Uniform Commercial Code as in effect in the State of California or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction. UK Subsidiaries — EMAK Europe Holdings, Limited, a United Kingdom company and any other Foreign Subsidiary organized under the laws of United Kingdom or Northern Ireland. Upshot — Upshot, Inc., a Delaware corporation. Value — (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis; and (b) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person. Warrants — the Common Warrants. 1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified herein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrowers’ certified public accountants concur in such change, the change is disclosed to Agent, and Section 10.3 is amended in a manner satisfactory to Required Lenders to take into account the effects of the change. Notwithstanding the foregoing and any other provision of this Agreement, the financial covenants set forth in Section 10.3 shall be calculated with respect to Borrowers and their Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) on a consolidated basis. 1.3 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors and assigns; (f) time of day mean time of day at Agent’s notice address under Section 14.3.1; or (g) discretion of Agent, Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, fundings of Loans, issuances of Letters of Credit and payments of Obligations shall be in Dollars and, unless the context otherwise requires, all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Whenever the phrase “to the best of Borrowers’ knowledge” or words of similar import are
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used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter to which such phrase relates. SECTION 2. CREDIT FACILITIES 2.1 Revolver Commitment. 2.1.1 Revolver Loans. Each Lender agrees, severally on a Pro Rata basis up to its Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers from time to time through the Commitment Termination Date. The Revolver Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any obligation to honor a request for a Revolver Loan if the unpaid balance of Revolver Loans outstanding at such time (including the requested Revolver Loan) would exceed the Borrowing Base. 2.1.2 Revolver Notes. The Revolver Loans made by each Lender and interest accruing thereon shall be evidenced by the records of Agent and such Lender. At the request of any Lender, Borrowers shall deliver a Revolver Note to such Lender. 2.1.3 Use of Proceeds. The proceeds of Revolver Loans shall be used by Borrowers solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d) for working capital and other lawful corporate purposes of Borrowers. 2.1.4 Voluntary Reduction or Termination of Revolver Commitments. (a) The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this Agreement. Upon at least 90 days prior written notice to Agent at any time after the first Loan Year, Borrowers may, at their option, terminate the Revolver Commitments and this credit facility. Any notice of termination given by Borrowers shall be irrevocable. On the termination date, Borrowers shall make Full Payment of all Obligations. (b) Borrowers may permanently reduce the Revolver Commitments, on a Pro Rata basis for each Lender, from time to time upon written notice to Agent, which notice shall specify the amount of the reduction, shall be irrevocable once given, shall be given at least five Business Days prior to the end of a month and shall be effective as of the first day of the next month. Each reduction shall be in a minimum amount of $1,000,000, or an increment of $1,000,000 in excess thereof; provided, however, that Borrowers may not permanently reduce the Revolver Commitments below $20,000,000. 2.1.5 Overadvances. If the aggregate Revolver Loans exceed the Borrowing Base (“Overadvance”) or the aggregate Revolver Commitments at any time, the excess amount shall be payable by Borrowers on demand by Agent, but all such Revolver Loans shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in writing by Required Lenders, Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is known to Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed $2,000,000; and (b) regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance (i) is not increased by more than $2,000,000 (including such discovered Overadvance), and (ii) does not continue for more than 30 consecutive days. In no event shall Overadvance Loans be required that would cause
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the outstanding Revolver Loans and LC Obligations to exceed the aggregate Revolver Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized to enforce any of its terms. 2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at any time that a Default or Event of Default exists or any conditions in Section 6 are not satisfied, and without regard to the aggregate Revolver Commitments, to make Base Rate Revolver Loans (“Protective Advances”) (a) up to an aggregate amount of $2,000,000 outstanding at any time, if Agent deems such Loans necessary or desirable to preserve or protect any Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other amounts chargeable to Obligors under any Loan Documents, including costs, fees and expenses. All Protective Advances shall be Obligations, secured by the Collateral, and shall be treated for all purposes as Extraordinary Expenses. Each Lender shall participate in each Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke Agent’s authorization to make further Protective Advances by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. 2.2 Letter of Credit Facility. 2.2.1 Issuance of Letters of Credit. Issuing Bank agrees to issue Letters of Credit from time to time until 30 days prior to the Revolver Termination Date (or until the Commitment Termination Date, if earlier), on the terms set forth herein, including the following: (a) Each Borrower acknowledges that Issuing Bank’s willingness to issue any Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; and (ii) each LC Condition is satisfied. If Issuing Bank receives written notice from a Lender at least one Business Day before issuance of a Letter of Credit that any LC Condition has not been satisfied, Issuing Bank shall have no obligation to issue the requested Letter of Credit (or any other) until such notice is withdrawn in writing by that Lender or until Required Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions. (b) Letters of Credit may be requested by a Borrower only (i) to support obligations of such Borrower incurred in the Ordinary Course of Business; or (ii) for other purposes as Agent and Lenders may approve from time to time in writing. The renewal or extension of any Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that delivery of a new LC Application shall be required at the discretion of Issuing Bank. (c) Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Borrower; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical
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terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of Issuing Bank under the Loan Documents shall be cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Borrowers are discharged with proceeds of any Letter of Credit. (d) In connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, notice or other communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected with reasonable care. (e) As of the Closing Date, Bank of America has under the Existing Credit Agreement issued for the account of Borrowers certain existing letters of credit listed in Schedule 2.2.1 hereto (collectively the “Existing Letters of Credit”). Upon satisfaction of the conditions set forth in Section 6.1, the Existing Letters of Credit shall, effective as of the Closing Date, become Letters of Credit under this Agreement to the same extent as if initially issued hereunder and each Lender shall be deemed to have irrevocably purchased from the Issuing Bank of such Existing Letters of Credit a participation in such Letters of Credit and drawings thereunder in an amount equal to such Lender’s Pro Rata share of the maximum amount which is or at any time may become available to be drawn thereunder. All such Existing Letters of Credit which become Letters of Credit under this Agreement shall be fully secured by the Collateral commencing on the Closing Date to the same extent as if initially issued hereunder on such date. 2.2.2 Reimbursement; Participations. (a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Revolver Loans from the Reimbursement Date until payment by Borrowers. The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate Revolver Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees to fund its Pro Rata share of such Borrowing whether or not the Revolver Commitments have terminated, an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied. (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit. If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not reimburse such payment on the Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment. Upon request by a Lender, Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its possession at such time.
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(c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Obligor may have with respect to any Obligations. Issuing Bank does not assume any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Documents. Issuing Bank does not make to Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, LC Documents or any Obligor. Issuing Bank shall not be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor. (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any LC Documents except as a result of its actual gross negligence or willful misconduct. Issuing Bank shall not have any liability to any Lender if Issuing Bank refrains from any action under any Letter of Credit or LC Documents until it receives written instructions from Required Lenders. 2.2.3 Cash Collateral. If any LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that Availability is less than zero, (c) after the Commitment Termination Date, or (d) within 20 Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing Bank’s or Agent’s request, pay to Issuing Bank the amount of all outstanding LC Obligations and Cash Collateralize all outstanding Letters of Credit. If Borrowers fail to Cash Collateralize outstanding Letters of Credit as required herein, Lenders may (and shall upon direction of Agent) advance, as Revolver Loans, the amount of the Cash Collateral required (whether or not the Revolver Commitments have terminated, an Overadvance exists, or the conditions in Section 6 are satisfied). SECTION 3. INTEREST, FEES AND CHARGES 3.1 Interest. 3.1.1 Rates and Payment of Interest. (a) The Obligations shall bear interest (i) if a Base Rate Revolver Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at Adjusted LIBOR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Revolver Loans. Interest shall accrue from the date the Revolver Loan is advanced or the Obligation is incurred or payable, until paid by Borrowers. If a Revolver Loan is repaid on the same day made, one day’s interest shall accrue. Borrowers shall not be permitted to request LIBOR Revolver Loans with respect to the Inventory Borrowing Portion. (b) During an Insolvency Proceeding with respect to any Borrower, or during any other Event of Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate. Each Borrower acknowledges that the cost and expense to Agent and each Lender due to an Event of Default are difficult to ascertain and that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders for such added cost and expense.
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(c) Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of each month and, for any LIBOR Loan, the last day of its Interest Period; (ii) on any date of prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the Revolver Commitment Termination Date. Interest accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no payment date is specified, shall be due and payable on demand. Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and payable on demand. 3.1.2 Application of Adjusted LIBOR to Outstanding Revolver Loans. (a) Borrowers may on any Business Day, subject to delivery of a Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Revolver Loans to, or to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a LIBOR Loan. (b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least two Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the aggregate principal amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate Revolver Loans. 3.1.3 Interest Periods. In connection with the making, conversion or continuation of any LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to apply, which interest period shall be one, two, three or six months; provided, however, that: (a) the Interest Period shall commence on the date the Loan is made or continued as, or converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar month at its end; (b) if any Interest Period commences on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month; and if any Interest Period would expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the Revolver Termination Date. 3.1.4 Interest Rate Not Ascertainable. If Agent shall determine that on any date for determining Adjusted LIBOR, due to any circumstance affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided herein, then Agent shall immediately notify Borrowers of such determination. Until Agent notifies Borrowers that such circumstance no longer exists, the obligation of Lenders to make LIBOR Loans shall be suspended, and no further Loans may be converted into or continued as LIBOR Loans. 3.2 Fees. 3.2.1 Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee which shall accrue at a rate per annum equal to the percentage set forth below opposite the Commitment Utilization Percentage with respect to each day (the “Commitment Fee Rate”) of the daily
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unused amount of the respective Revolver Commitments of such Lenders (excluding with respect to Agent the amount of any Swingline Loans) during the period from and including the Closing Date to the Commitment Termination Date:
Commitment Utilization Percentage Commitment Fee Rate Less than or equal to 25% 0.500 % Greater than 25% 0.375 %
Such fee shall be payable in arrears, on the first day of each month and on the Commitment Termination Date. 3.2.2 LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal 2.50% per annum times the average daily stated amount of Letters of Credit, which fee shall be payable monthly in arrears, on the first day of each month; (b) to Agent, for its own account, a fronting fee equal to 0.25% of the stated amount of each Letter of Credit, which fee shall be payable upon issuance of the Letter of Credit and on each anniversary date of such issuance, and shall be payable on any increase in stated amount made between any such dates; and (c) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (a) shall be increased by 2% per annum. With respect to Existing Letters of Credit, the fees described in clauses (a), (b) and (c) above shall accrue from and including the Closing Date. 3.2.3 Closing Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of the Lenders, a closing fee of $100,000, which shall be paid concurrently with the funding of the initial Loans hereunder. 3.2.4 Agent Fees. In consideration of Agent’s syndication of the Revolver Commitments and service as Agent hereunder, Borrowers shall pay to Agent, for its own account, a non-refundable annual administrative agent’s fee of $15,000 per annum, payable in advance on the Closing Date and on each anniversary thereof. 3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days. Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject to rebate or refund, nor subject to proration except as specifically provided herein. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by Borrowers under Section 3.4, 3.6, 3.7, 3.9 or 5.8, submitted to Borrowers by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all purposes, absent manifest error. 3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary Expenses. Borrowers shall also reimburse Agent for all legal, accounting, appraisal, consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation and preparation of any Loan Documents, including any amendment or other modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) each inspection, audit or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party. All legal, accounting and
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consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly rates, regardless of any reduced or alternative fee billing arrangements that Agent, any Lender or any of their Affiliates may have with such professionals with respect to this or any other transaction. All amounts reimbursable by Borrowers under this Section shall constitute Obligations secured by the Collateral and shall be payable on demand. 3.5 Illegality. Notwithstanding anything to the contrary herein, if (a) any change in any law or interpretation thereof by any Governmental Authority makes it unlawful for a Lender to make or maintain a LIBOR Loan or to maintain any Revolver Commitment with respect to LIBOR Loans or (b) a Lender determines that the making or continuance of a LIBOR Loan has become impracticable as a result of a circumstance that adversely affects the London interbank market or the position of such Lender in such market, then such Lender shall give notice thereof to Agent and Borrowers and may (i) declare that LIBOR Loans will not thereafter be made by such Lender, whereupon any request for a LIBOR Loan from such Lender shall be deemed to be a request for a Base Rate Revolver Loan unless such Lender’s declaration has been withdrawn (and it shall be withdrawn promptly upon cessation of the circumstances described in clause (a) or (b) above); and/or (ii) require that all outstanding LIBOR Loans made by such Lender be converted to Base Rate Revolver Loans immediately, in which event all outstanding LIBOR Loans of such Lender shall be immediately converted to Base Rate Revolver Loans. 3.6 Increased Costs. If, by reason of (a) the introduction of or any change (including any change by way of imposition or increase of Statutory Reserves or other reserve requirements) in any law or interpretation thereof, or (b) the compliance with any guideline or request from any Governmental Authority or other Person exercising control over banks or financial institutions generally (whether or not having the force of law): (i) a Lender shall be subject to any Tax with respect to any LIBOR Loan or Letter of Credit or its obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations, or a change shall result in the basis of taxation of any payment to a Lender with respect to its LIBOR Loans or its obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations (except for Excluded Taxes); or (ii) any reserve (including any imposed by the Board of Governors), special deposits or similar requirement against assets of, deposits with or for the account of, or credit extended by, a Lender shall be imposed or deemed applicable, or any other condition affecting a Lender’s LIBOR Loans or obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations shall be imposed on such Lender or the London interbank market; and as a result there shall be an increase in the cost to such Lender of agreeing to make or making, funding or maintaining LIBOR Loans, Letters of Credit or participations in LC Obligations (except to the extent already included in determination of Adjusted LIBOR), or there shall be a reduction in the amount receivable by such Lender, then the Lender shall promptly notify Borrowers and Agent of such event, and Borrowers shall, within five days following demand therefor, pay such Lender the amount of such increased costs or reduced amounts. If a Lender determines that, because of circumstances described above or any other circumstances arising hereafter affecting such Lender, the London interbank market or the Lender’s position in such market, Adjusted LIBOR or its Applicable Margin, as applicable, will not adequately and fairly reflect the cost to such Lender of funding LIBOR Loans, issuing Letters of Credit or participating in LC Obligations, then (A) the Lender shall promptly notify Borrowers and Agent of such event; (B) such Lender’s obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations shall be immediately suspended, until each condition giving rise to such suspension no longer exists; and (C) such Lender shall make a Base Rate Revolver Loan as part of any requested Borrowing of LIBOR Loans, which Base Rate Revolver Loan shall, for all purposes, be considered part of such Borrowing.
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3.7 Capital Adequacy. If a Lender determines that any introduction of or any change in a Capital Adequacy Regulation, any change in the interpretation or administration of a Capital Adequacy Regulation by a Governmental Authority charged with interpretation or administration thereof, or any compliance by such Lender or any Person controlling such Lender with a Capital Adequacy Regulation, increases the amount of capital required or expected to be maintained by such Lender or Person (taking into consideration its capital adequacy policies and desired return on capital) as a consequence of such Lender’s Revolver Commitments, Loans, participations in LC Obligations or other obligations under the Loan Documents, then Borrowers shall, within five days following demand therefor, pay such Lender an amount sufficient to compensate for such increase. A Lender’s demand for payment shall set forth the nature of the occurrence giving rise to such compensation and a calculation of the amount to be paid. In determining such amount, the Lender may use any reasonable averaging and attribution method. 3.8 Mitigation. Each Lender agrees that, upon becoming aware that it is subject to Section 3.5, 3.6, 3.7 or 5.8, it will take reasonable measures to reduce Borrowers’ obligations under such Sections, including funding or maintaining its Revolver Commitments or Loans through another office, as long as use of such measures would not adversely affect the Lender’s Revolver Commitments, Loans, business or interests, and would not be inconsistent with any internal policy or applicable legal or regulatory restriction. 3.9 Funding Losses. If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, or (c) Borrowers fail to repay a LIBOR Loan when required hereunder, then Borrowers shall pay to Agent its customary administrative charge and to each Lender all losses and expenses that it sustains as a consequence thereof, including any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds. Lenders shall not be required to purchase Dollar deposits in the London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund its LIBOR Loans. 3.10 Maximum Interest. In no event shall interest, charges or other amounts that are contracted for, charged or received by Agent and Lenders pursuant to any Loan Documents and that are deemed interest under Applicable Law (“interest”) exceed the highest rate permissible under Applicable Law (“maximum rate”). If, in any month, any interest rate, absent the foregoing limitation, would have exceeded the maximum rate, then the interest rate for that month shall be the maximum rate and, if in a future month, that interest rate would otherwise be less than the maximum rate, then the rate shall remain at the maximum rate until the amount of interest actually paid equals the amount of interest which would have accrued if it had not been limited by the maximum rate. If, upon Full Payment of the Obligations, the total amount of interest actually paid under the Loan Documents is less than the total amount of interest that would, but for this Section, have accrued under the Loan Documents, then Borrowers shall, to the extent permitted by Applicable Law, pay to Agent, for the account of Lenders, (a) the lesser of (i) the amount of interest that would have been charged if the maximum rate had been in effect at all times, or (ii) the amount of interest that would have accrued had the interest rate otherwise set forth in the Loan Documents been in effect, minus (b) the amount of interest actually paid under the Loan Documents. If a court of competent jurisdiction determines that Agent or any Lender has received interest in excess of the maximum amount allowed under Applicable Law, such excess shall be deemed received on account of, and shall automatically be applied to reduce, Obligations other than interest (regardless of any erroneous application thereof by Agent or any Lender), and upon Full Payment of the Obligations, any balance shall be refunded to Borrowers. In determining whether any excess interest has been charged or received by Agent or any Lender, all interest at any time charged or received from Borrowers in connection with the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations.
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SECTION 4. LOAN ADMINISTRATION 4.1 Manner of Borrowing and Funding Revolver Loans. 4.1.1 Notice of Borrowing. (a) Whenever Borrowers desire funding of a Borrowing of Revolver Loans, Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 11:00 a.m. (i) on the Business Day of the requested funding date, in the case of Base Rate Revolver Loans, and (ii) at least two Business Days prior to the requested funding date, in the case of LIBOR Loans. Notices received after 11:00 a.m. shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the principal amount of the Borrowing, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Revolver Loans or LIBOR Loans, and (D) in the case of LIBOR Loans, the duration of the applicable Interest Period (which shall be deemed to be one month if not specified). (b) Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations (whether principal, interest, fees or other charges, including Extraordinary Expenses, LC Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate Revolver Loans on the due date, in the amount of such Obligations. The proceeds of such Revolver Loans shall be disbursed as direct payment of the relevant Obligation. (c) If Borrowers establish a controlled disbursement account with Agent or any Affiliate of Agent, then the presentation for payment of any check or other item of payment drawn on such account at a time when there are insufficient funds to cover it shall be deemed to be a request for Base Rate Revolver Loans on the date of such presentation, in the amount of the check and items presented for payment. The proceeds of such Revolver Loans may be disbursed directly to the controlled disbursement account or other appropriate account. 4.1.2 Fundings by Lenders. Each Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is properly requested hereunder. Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 12:00 noon on the proposed funding date for Base Rate Revolver Loans or by 3:00 p.m. at least two Business Days before any proposed funding of LIBOR Loans. Each Lender shall fund to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in immediately available funds not later than 2:00 p.m. on the requested funding date, unless Agent’s notice is received after the times provided above, in which event Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from Lenders, Agent shall disburse the proceeds of the Revolver Loans as directed by Borrower Agent. Unless Agent shall have received (in sufficient time to act) written notice from a Lender that it does not intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lender’s share of any Borrowing is not in fact received by Agent, then Borrowers agree to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to such Borrowing. 4.1.3 Swingline Loans; Settlement. (a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers out of Agent’s own funds, up to an aggregate outstanding amount of $2,500,000, unless the funding is specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account.
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The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any promissory note. (b) To facilitate administration of the Revolver Loans, Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that settlement among them with respect to Swingline Loans and other Revolver Loans may take place periodically on a date determined from time to time by Agent, which shall occur at least once every five Business Days. On each settlement date, settlement shall be made with each Lender in accordance with the Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline Loans, regardless of any designation by Borrower or any provision herein to the contrary. Each Lender’s obligation to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other defense, and whether or not the Revolver Commitments have terminated, an Overadvance exists, or the conditions in Section 6 are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such participation to Agent, in immediately available funds, within one Business Day after Agent’s request therefor. 4.1.4 Notices. Each Borrower authorizes Agent and Lenders to extend, convert or continue Loans, effect selections of interest rates, and transfer funds to or on behalf of Borrowers based on telephonic or e-mailed instructions. Borrowers shall confirm each such request by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any material respect from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to be a person authorized to give such instructions on a Borrower’s behalf. 4.2 Defaulting Lender. If a Lender fails to make any payment to Agent that is required hereunder, Agent may (but shall not be required to), in its discretion, retain payments that would otherwise be made to such defaulting Lender hereunder, apply the payments to such Lender’s defaulted obligations or readvance the funds to Borrowers in accordance with this Agreement. The failure of any Lender to fund a Loan or to make a payment in respect of a LC Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall be responsible for default by another Lender. Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of determining a defaulting Lender’s right to vote on matters relating to the Loan Documents and to share in payments, fees and Collateral proceeds thereunder, a defaulting Lender shall not be deemed to be a “Lender” until all its defaulted obligations have been cured. 4.3 Number and Amount of LIBOR Loans; Determination of Rate. For ease of administration, all LIBOR Revolver Loans having the same length and beginning date of their Interest Periods shall be aggregated together, and such Loans shall be allocated among Lenders on a Pro Rata basis. No more than eight aggregated LIBOR Loans may be outstanding at any time, and each aggregate LIBOR Loan when made, continued or converted shall be in a minimum amount of $1,000,000, or an increment of $100,000 in excess thereof. Upon determining Adjusted LIBOR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing. 4.4 Borrower Agent. Each Borrower hereby designates EMAK (“Borrower Agent”) as its representative and agent for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications with Agent, Issuing
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Bank or any Lender, preparation and delivery of Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Agent shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it. 4.5 One Obligation. The Loans, LC Obligations and other Obligations shall constitute one general obligation of Borrowers and (unless otherwise expressly provided in any Loan Document) shall be secured by Agent’s Lien upon all Collateral; provided, however, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower. 4.6 Effect of Termination. On the effective date of any termination of the Revolver Commitments, all Obligations shall be immediately due and payable, and any Lender may terminate its and its Affiliates’ Bank Products (including, with the consent of Agent, any Cash Management Services). All undertakings of Borrowers contained in the Loan Documents shall survive any termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents until Full Payment of the Obligations. Notwithstanding Full Payment of the Obligations, Agent shall not be required to terminate its Liens in any Collateral unless, with respect to any damages Agent may incur as a result of the dishonor or return of Payment Items applied to Obligations, Agent receives (a) a written agreement, executed by Borrowers and any Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Agent and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its discretion, deems necessary to protect against any such damages. The provisions of Sections 2.3, 3.4, 3.6, 3.7, 3.9, 5.4, 5.8, 12, 14.2 and this Section, and the obligation of each Obligor and Lender with respect to each indemnity given by it in any Loan Document, shall survive Full Payment of the Obligations and any release relating to this credit facility. SECTION 5. PAYMENTS 5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars, without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes, and in immediately available funds, not later than 12:00 noon on the due date. Any payment after such time shall be deemed made on the next Business Day. Borrowers may, at the time of payment, specify to Agent the Obligations to which such payment is to be applied, but Agent shall in all events retain the right to apply such payment in such manner as Agent, subject to the provisions hereof, may determine to be appropriate. If any payment under the Loan Documents shall be stated to be due on a day other than a Business Day, the due date shall be extended to the next Business Day and such extension of time shall be included in any computation of interest and fees. Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section 3.9. Any prepayment of Loans shall be applied first to Base Rate Revolver Loans and then to LIBOR Loans. 5.2 Repayment of Revolver Loans. Revolver Loans shall be due and payable in full on the Revolver Termination Date, unless payment is sooner required hereunder. Revolver Loans may be prepaid from time to time, without penalty or premium. If any Asset Disposition includes the disposition of Accounts or Inventory, then Net Proceeds equal to the greater of (a) the net book value of such Accounts and Inventory, or (b) the reduction in the Borrowing Base upon giving effect to such disposition, shall be applied to the Revolver Loans. Notwithstanding anything herein to the contrary, if
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an Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an amount sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base. 5.3 Payment of Other Obligations. Obligations other than Revolver Loans, including LC Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan Documents or, if no payment date is specified, on demand. 5.4 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any Obligor makes a payment to Agent or Lenders, or if Agent or any Lender receives payment from the proceeds of Collateral, exercise of setoff or otherwise, and such payment is subsequently invalidated or required to be repaid to a trustee, receiver or any other Person, then the Obligations originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been received and any enforcement or setoff had not occurred. 5.5 Post-Default Allocation of Payments. 5.5.1 Allocation. Notwithstanding anything herein to the contrary, during an Event of Default, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows: (a) first, to all costs and expenses, including Extraordinary Expenses, owing to Agent; (b) second, to all amounts owing to Agent on Swingline Loans or Protective Advances; (c) third, to all amounts owing to Issuing Bank on LC Obligations; (d) fourth, to all Obligations constituting fees (excluding amounts relating to Bank Products); (e) fifth, to all Obligations constituting interest (excluding amounts relating to Bank Products); (f) sixth, to provide Cash Collateral for outstanding Letters of Credit; (g) seventh, to all other Obligations, other than Bank Product Debt; and (h) last, to Bank Product Debt. Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof and then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a pro rata basis among the Obligations in the category. The allocations set forth in this Section are solely to determine the rights and priorities of Agent and Lenders as among themselves, and may be changed by agreement among them without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Borrower. 5.5.2 Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by any Lender, such Lender hereby agrees to return it).
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5.6 Application of Payments. The ledger balance in the main Dominion Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. Each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds, and agrees that Agent shall have the continuing, exclusive right to apply and reapply same against the Obligations, in such manner as Agent deems advisable, notwithstanding any entry by Agent in its records. If, as a result of Agent’s receipt of Payment Items or proceeds of Collateral, a credit balance exists, the balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Default or Event of Default exists. 5.7 Loan Account; Account Stated. 5.7.1 Loan Account. Agent shall maintain in accordance with its usual and customary practices an account or accounts (“Loan Account”) evidencing the Debt of Borrowers resulting from each Loan or issuance of a Letter of Credit from time to time. Any failure of Agent to record anything in the Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Agent may maintain a single Loan Account in the name of Borrower Agent, and each Borrower confirms that such arrangement shall have no effect on the joint and several character of its liability for the Obligations. 5.7.2 Entries Binding. Entries made in the Loan Account shall constitute presumptive evidence of the information contained therein. If any information contained in the Loan Account is provided to or inspected by any Person, then such information shall be conclusive and binding on such Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing within 30 days after receipt or inspection that specific information is subject to dispute. 5.8 Taxes. If any Taxes (except Excluded Taxes) shall be payable by any party due to the execution, delivery, issuance or recording of any Loan Documents, or the creation or repayment of any Obligations, Borrowers shall pay (and shall promptly reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and penalties thereon, and will indemnify and hold harmless Indemnitees against all liability in connection therewith. If Borrowers shall be required by Applicable Law to withhold or deduct any Taxes (except Excluded Taxes) with respect to any sum payable under any Loan Documents, (a) the sum payable to Agent or such Lender shall be increased as may be necessary so that, after making all required withholding or deductions, Agent or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such withholding or deductions been made; (b) Borrowers shall make such withholding or deductions; and (c) Borrowers shall pay the full amount withheld or deducted to the relevant taxing or other authority in accordance with Applicable Law. 5.9 Withholding Tax Exemption. At least five Business Days prior to the first date for payment of interest or fees hereunder to a Foreign Lender, the Foreign Lender shall deliver to Borrowers and Agent two duly completed copies of IRS Form W-8BEN or W-8ECI (or any subsequent replacement or substitute form therefor), certifying that such Lender can receive payment of Obligations without deduction or withholding of any United States federal income taxes. Each Foreign Lender shall deliver to Borrowers and Agent two additional copies of such form before the preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the form, as well as any amendments, extensions or renewals thereof as may be reasonably requested by Borrowers or Agent, in each case, certifying that the Foreign Lender can receive payment of Obligations without deduction or withholding of any such taxes, unless an event (including any change in treaty or law) has occurred that renders such forms inapplicable or prevents the Foreign Lender from certifying that it can receive payments without deduction or withholding of such taxes. During any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any change in treaty or law) that occurs after it becomes a Lender, Agent may withhold taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and
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Borrowers shall not be required to pay any additional amounts under this Section as a result of such withholding. 5.10 Nature and Extent of Each Borrower’s Liability. 5.10.1 Joint and Several Liability; Obligations Absolute. Each Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders the prompt payment and performance of, all Obligations and all agreements under the Loan Documents. Each Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and performance and not of collection, that such obligations shall not be discharged until Full Payment of the Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Obligor is or may become a party or liable; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for the Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of all Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Borrower agrees that: (i) Agent and any Lender may enforce this obligation upon the occurrence of an Event of Default hereunder notwithstanding the existence of any dispute between any other Borrower and Agent or any Lender with respect to the existence of such Event of Default; (ii) the obligations of each Borrower hereunder are independent of each of the obligations of each other Borrower under the Loan Documents and the obligations of any other Person and a separate action or actions may be brought and prosecuted against each Borrower whether or not any action is brought against any other Borrower or any other Person and whether or not any other Borrower or any other Person is joined in any such action or actions; and (iii) a payment of a portion, but not all, of the Obligations by any Borrower shall in no way limit, affect, modify or abridge the liability of such or any other Borrower for any portion of the Obligations that has not been paid. Each Borrower agrees that its obligation under this Section 5.10.1 with respect to the obligations of each other Borrower is a continuing guaranty and shall be binding upon each Borrower and its successors and assigns, and each Borrower irrevocably waives any right to revoke its obligations under this Section 5.10.1 as to future transactions giving rise to any Obligations. 5.10.2 Actions by Agent and the Lenders. Agent and any Lender may from time to time, without notice or demand and without affecting the validity or enforceability of this Section 5.10 or giving rise to any limitation, impairment or discharge of any Borrower’s liability hereunder (a) renew, extend, accelerate or otherwise change the time, place, manner or terms of payment of the Obligations of any other Borrower with the consent of such other Borrower, (b) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations of any other Borrower or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations, (c) request and accept other guaranties of the Obligations of any other Borrower and take and hold security for the payment of such Obligations, (d) release, exchange, compromise, subordinate or modify, with or without consideration, any security for payment of the Obligations of any other Borrower, any other guaranties of such Obligations, or any other obligation of any Person with respect to such Obligations, (e) enforce and apply any security now or hereafter held from any other Borrower by or for the benefit of Agent or any Lender in respect of the Obligations of any
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other Borrower and direct the order or manner of sale thereof, or exercise any other right or remedy that Agent or the Lenders, or any of them, may have against any such security, in each case as Agent or the Lenders in their discretion may determine consistent with this Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable and (f) exercise any other rights available to Agent or the Lenders, or any of them, under the Loan Documents. 5.10.3 No Discharge. The obligations of each Borrower under this Section 5.10 shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including the occurrence of any of the following, whether or not any Borrower shall have had notice or knowledge of any of them: (a) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations of any other Borrower or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of such Obligations, (b) any waiver or modification of, or any consent to departure from, any of the terms or provisions of this Agreement or any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Obligations of any other Borrower, (c) the Obligations of any other Borrower, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (d) the application of payments received from any source to the payment of indebtedness other than the Obligations of any other Borrower, even though Agent or the Lenders, or any of them, might have elected to apply such payment to any part or all of the Obligations of any other Borrower, (e) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Obligations of any other Borrower, (f) any defenses, set-offs or counterclaims which any other Borrower or any other Person may assert against Agent or any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury and (g) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Borrower as an obligor in respect of the Obligations. 5.10.4 Waivers. Each Borrower waives, for the benefit of Agent and each Lender: (a) any right to require Agent or any Lender, as a condition of payment or performance by such Borrower, to (i) proceed against any other Borrower or any other Person, (ii) proceed against or exhaust any security held from any other Borrower or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of Agent or any Lender in favor of any other Borrower or any other Person, or (iv) pursue any other remedy in the power of Agent or any Lender; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any other Borrower including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any other Borrower from any cause other than payment in full of the Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon Agent’s or any Lender’s errors or omissions in the administration of the Obligations, except behavior that amounts to gross negligence or willful misconduct; (e) (i) any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of this Section 5.10 and any legal or equitable discharge of such Borrower’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Borrower’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Section 5.10, notices of default under this Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to any other Borrower and
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notices of any of the matters referred to in Sections 5.10.2 and 5.10.3 and any right to consent to any thereof; and (g) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Section 5.10. As used in this paragraph, any reference to “the principal” includes each Borrower and any reference to “the creditor” includes Agent and each of the Lenders. In accordance with Section 2856 of the California Civil Code each Borrower waives any and all rights and defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code, including any and all rights or defenses such Borrower may have because the Obligations are secured by real property or by reason of protection afforded to the principal with respect to any of the Obligations, or to any other guarantor of any of the Obligations with respect to any of such guarantor’s obligations under its guaranty, in either case pursuant to the antideficiency or other laws of the State of California limiting or discharging the principal’s indebtedness or such guarantor’s obligations, including Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Consequently, among other things: (1) the creditor may collect from such Borrower without first foreclosing on any real or personal property collateral pledged by the principal; and (2) if the creditor forecloses on any real property collateral pledged by the principal: (x) the amount of the Obligations may be reduced only by the price for which the collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price and (y) the creditor may collect from such Borrower even if the creditor, by foreclosing on the real property collateral, has destroyed any right such Borrower may have to collect from the principal. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. Each Borrower also waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for an Obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise; and even though that election of remedies by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any other guarantor of any of the Obligations, has destroyed such Borrower’s rights of contribution against such other Borrower or any other guarantor. No other provision of this Section 5.10 shall be construed as limiting the generality of any of the covenants and waivers set forth in this paragraph. 5.10.5 Borrowers’ Rights of Subrogation, Contribution, Etc.; Subordination of Other Obligations. Each Borrower waives any claim, right or remedy, direct or indirect, that such Borrower now has or may hereafter have against any other Borrower or any of its assets in connection with this Section 5.10 or the performance by such Borrower of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute (including under California Civil Code Section 2847, 2848 or 2849), under common law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Borrower now has or may hereafter have against any other Borrower, (b) any right to enforce, or to participate in, any claim, right or remedy that Agent or any Lender now has or may hereafter have against any other Borrower and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by Agent or any Lender. In addition, until the Obligations shall have been paid in full, the Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Borrower shall withhold exercise of any right of contribution such Borrower may have against any other Borrower. Each Borrower further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Borrower may have against any other Borrower or against any collateral or security, and any rights of contribution such Borrower may have against such other Borrower, shall be junior and subordinate to any rights Agent or any Lender may have against such Borrower to all right, title and interest Agent or any Lender may have in any such collateral or security, and to any right Agent or any Lender may have against such other Borrower.
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Any indebtedness of any other Borrower now or hereafter held by any Borrower is subordinated in right of payment to the Obligations, and any such indebtedness of such other Borrower to such Borrower collected or received by such Borrower after an Event of Default has occurred and is continuing, and any amount paid to any Borrower on account of any subrogation, reimbursement, indemnification or contribution rights referred to in the preceding paragraph when all Obligations have not been paid in full, shall be held in trust for Agent and the Lenders and shall forthwith be paid over to Agent for the benefit of the Lenders to be credited and applied against the Obligations. 5.10.6 Extent of Liability; Contribution. (a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this Section 5.10 shall be limited to the greater of (i) all amounts for which such Borrower is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount. (b) If any Borrower makes a payment under this Section 5.10 of any Obligations (other than amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum amount that could then be recovered from such Borrower under this Section 5.10 without rendering such payment voidable or avoidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law. (c) Nothing contained in this Section 5.10 shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Obligations relating to Letters of Credit issued to support such Borrower’s business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of such Loans and Letters of Credit to such Borrower. 5.10.7 Joint Enterprise. Each Borrower has requested that Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease the administration of their relationship with Lenders, all to the mutual advantage of Borrowers. Borrowers acknowledge and agree that Agent’s and Lenders’ willingness to extend credit to Borrowers and to administer the Collateral on a combined basis, as set forth herein, is done solely as an accommodation to Borrowers and at Borrowers’ request. SECTION 6. CONDITIONS PRECEDENT 6.1 Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
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(a) Revolver Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Revolver Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) [Intentionally Omitted.] (c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent. (d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) Agent shall have received a written opinion of General Counsel of Borrowers, in form and substance satisfactory to Agent. (g) Agent shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or another official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification. (h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers and their Subsidiaries, all in compliance with the Loan Documents, outlining all material insurance coverage maintained by the Borrowers and their Subsidiaries, including directors and officers insurance coverage and all insurance required to be maintained pursuant to Sections 8.6.2 and 10.1.7. Agent, on behalf of Lenders, shall have been named as additional insured, mortgagee and/or loss payee thereunder (other than any directors and officers insurance and life insurance) to the extent required under Sections 8.6.2 and 10.1.7. (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination and completion of its collateral audit with respect to Inventory and Accounts, with results satisfactory to Agent. Except as disclosed in the Draft Financial Statements, no material adverse change in the financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2004. (j) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date. (k) Agent shall have received a Borrowing Base Certificate prepared as of March 24, 2006. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the
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payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $5,500,000. (l) Borrowers shall have (a) repaid in full all outstanding Debt of Borrowers under the Existing Credit Agreement and all other outstanding Debt of Borrowers (other than Permitted Debt described in Section 10.2.1), (b) terminated any commitments to lend or make other extensions of credit thereunder (other than Permitted Debt described in Section 10.2.1), (c) delivered to Agent all documents or instruments necessary to release all Liens securing existing Debt or other obligations of Borrowers thereunder (other than Permitted Debt described in Section 10.2.1), and (d) made arrangements satisfactory to Agent with respect to the cancellation of any letters of credit outstanding thereunder (other than the Existing Letters of Credit) or the issuance of Letters of Credit to support the obligations of Borrowers and their respective Subsidiaries with respect thereto. Borrowers shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrowers and Agent). (m) Agent shall have received evidence satisfactory to it that Borrowers shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of Agent, desirable in order to create in favor of Agent, for the benefit of Lenders, a valid and perfected first priority security interest in the Collateral. Such actions shall include the following: (i) Schedules to Security Documents. Delivery to Agent of accurate and complete schedules to all of the applicable Security Documents. (ii) Stock Certificates and Instruments. Delivery to Agent of (a) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Agent) representing all capital stock pledged pursuant to the Security Documents, and (b) all promissory notes (including a master intercompany note) or other instruments (duly endorsed, where appropriate, in a manner satisfactory to Agent) evidencing any Collateral. (iii) Lien Searches and UCC Termination Statements. Delivery to Agent of (a) the results of a recent search, by a Person satisfactory to Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal or mixed property of each Obligor, together with copies of all such filings disclosed by such search, and (b) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than Permitted Liens). (iv) UCC Financing Statements and Fixture Filings. Delivery to Agent of acknowledgements of all filings and recordations of UCC financing statements and, where appropriate, fixture filings, duly executed by each applicable Obligor with respect to all personal and mixed property Collateral of such Obligor, in all jurisdictions as may be necessary or, in the opinion of Agent, desirable to perfect the security interests created in such Collateral pursuant to the Security Documents. (v) Cash Management. Delivery to Agent of lock box agreements in form and substance satisfactory to Agent and Deposit Account Control Agreements executed by each Person that is a party thereto with respect to the Deposit Accounts listed therein.
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(vi) Securities Accounts. Delivery to Agent of Securities Account Control Agreements, in form and substance satisfactory to Agent, executed by each Person that is a party thereto with respect to each of the Securities Accounts of each applicable Borrower. (n) Borrowers shall have delivered to Agent any Lien Waivers as may be reasonably required by Agent. (o) Borrowers shall have delivered an accurate copy of each Related Document, together with any amendments, exhibits and schedules thereto. (p) Each Obligors shall have obtained all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and the continued operation of the business conducted by Borrowers and their Subsidiaries in substantially the same manner as conducted prior to the Closing Date. Each such Governmental Approval or consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Approval or consent, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired. (q) There shall not be pending or, to the knowledge of any Senior Officer of any Borrower, threatened, any action, suit, proceeding, governmental investigation or arbitration against or affecting Borrowers or any of their Subsidiaries or any property of Borrowers or any of their Subsidiaries that has not been disclosed to Agent by Borrowers in writing prior to the execution of this Agreement, and there shall have occurred no development not so disclosed in any such action, suit, proceeding, governmental investigation or arbitration so disclosed, that, in either event, in the opinion of Agent could reasonably be expected to have a Material Adverse Effect; and no injunction or other restraining order shall have been issued and no hearing to cause an injunction or other restraining order to be issued shall be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement or the making of Revolver Loans hereunder. (r) Agent shall have received and be satisfied with such other information as Agent may reasonably request. 6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Borrowers, unless the following conditions are satisfied: (a) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant; (b) The representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date); (c) All conditions precedent in any other Loan Document shall be satisfied; (d) No event shall have occurred or circumstance exist that has or could reasonably be expected to have a Material Adverse Effect; and
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(e) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied. Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation shall constitute a representation by Borrowers that the foregoing conditions are satisfied on the date of such request and on the date of such funding, issuance or grant. As an additional condition to any funding, issuance or grant, Agent shall have received such other information, documents, instruments and agreements as it deems appropriate in connection therewith. 6.3 Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or Lenders fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Bank and Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of conditions or otherwise. SECTION 7. COLLATERAL 7.1 Grant of Security Interest. To secure the prompt payment and performance of all Obligations, each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all personal Property of such Borrower, including all of the following Property, whether now owned or hereafter acquired, and wherever located: (a) all Accounts; (b) all Chattel Paper, including electronic chattel paper; (c) all Commercial Tort Claims; (d) all Deposit Accounts and Securities Accounts; (e) all Documents; (f) all General Intangibles, including Payment Intangibles, Software and Intellectual Property; (g) all Goods, including Inventory, Equipment and fixtures; (h) all Instruments; (i) all Investment Property; (j) all Letter-of-Credit Rights; (k) all Supporting Obligations; (l) all monies, whether or not in the possession or under the control of Agent, a Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral; (m) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and
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(n) all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) pertaining to the foregoing. 7.2 Lien on Deposit Accounts; Cash Collateral. 7.2.1 Deposit Accounts and Securities Accounts. To further secure the prompt payment and performance of all Obligations, each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all of such Borrower’s right, title and interest in and to each Deposit Account and Securities Account of such Borrower and any deposits or other sums at any time credited to any such Deposit Account or Securities Account, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Each Borrower authorizes and directs each bank or other depository to deliver to Agent, on a daily basis, all balances in each Deposit Account maintained by such Borrower with such depository for application to the Obligations then outstanding. Each Borrower irrevocably appoints Agent as such Borrower’s attorney-in-fact to collect such balances to the extent any such delivery is not so made. 7.2.2 Cash Collateral. Any Cash Collateral may be invested, in Agent’s discretion, in Cash Equivalents, but Agent shall have no duty to do so, regardless of any agreement, understanding or course of dealing with any Borrower, and shall have no responsibility for any investment or loss. Each Borrower hereby grants to Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Obligations, whether such Cash Collateral is held in the Cash Collateral Account or elsewhere. Agent may apply Cash Collateral to the payment of any Obligations, in such order as Agent may elect, as they become due and payable. The Cash Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent. No Borrower or other Person claiming through or on behalf of any Borrower shall have any right to any Cash Collateral, until Full Payment of all Obligations. 7.3 Real Estate Collateral. The Obligations shall also be secured by Mortgages upon all Real Estate owned by Borrowers, including the Real Estate listed on Schedule 7.3. The Mortgages shall be duly recorded, at Borrowers’ expense, in each office where such recording is required to constitute a fully perfected Lien on the Real Estate covered thereby. If any Borrower acquires Real Estate hereafter, Borrowers shall, within 30 days, execute, deliver and record a Mortgage sufficient to create a first priority Lien in favor of Agent on such Real Estate, and shall deliver all Related Real Estate Documents within such 30 days. 7.4 Other Collateral. 7.4.1 Commercial Tort Claims. Borrowers shall promptly notify Agent in writing if any Borrower has a Commercial Tort Claim (other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less than $250,000) and, upon Agent’s request, shall promptly execute such documents and take such actions as Agent deems appropriate to confer upon Agent (for the benefit of Secured Parties) a duly perfected, first priority Lien upon such claim. 7.4.2 Certain After-Acquired Collateral. Borrowers shall promptly notify Agent in writing if, after the Closing Date, any Borrower obtains any interest in any Collateral consisting of Deposit Accounts, Chattel Paper, Documents, Instruments, Intellectual Property, Investment Property or Letter-of-Credit Rights and, upon Agent’s request, shall promptly execute such documents and take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral, including obtaining any appropriate possession, control agreement or Lien Waiver. If any Collateral is in the possession of a third party, at Agent’s request, Borrowers shall obtain an acknowledgment that such third party holds the Collateral for the benefit of Agent.
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7.5 No Assumption of Liability. The Lien on Collateral granted hereunder is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Borrowers relating to any Collateral. 7.6 Further Assurances. Promptly upon request, Borrowers shall deliver such instruments, assignments, title certificates, or other documents or agreements, and shall take such actions, as Agent deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Borrower authorizes Agent to file any financing statement that indicates the Collateral as “all assets” or “all personal property” of such Borrower, or words to similar effect, and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral. 7.7 Foreign Subsidiary Stock. Notwithstanding Section 7.1, the Collateral shall include only 65% of the voting stock of any Foreign Subsidiary. SECTION 8. COLLATERAL ADMINISTRATION 8.1 Borrowing Base Certificates. Unless extended in writing by Agent in its sole discretion, by Wednesday (or, if the preceding Monday or Friday is not a Business Day, then Thursday) of each week, Borrowers shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous week, with such supporting schedules and at such other times as Agent may request. All calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrowers and certified by a Senior Officer, provided that Agent may from time to time review and adjust any such calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (c) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve. 8.2 Administration of Accounts. 8.2.1 Records and Schedules of Accounts. Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent, on such periodic basis as Agent may request (and in any event no less frequently than on a weekly basis) a sales and collections report, in form satisfactory to Agent. Each Borrower shall also provide to Agent, on or before Wednesday (or, if the preceding Monday or Friday is not a Business Day, then Thursday) of each week (unless extended in writing by Agent in its sole discretion), a detailed aged trial balance of all Accounts as of the end of the preceding week, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate face amount of $250,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly (and in any event within one Business Day) after any Borrower has knowledge thereof. 8.2.2 Taxes. If an Account of any Borrower includes a charge for any Taxes, Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Borrower and to charge Borrowers therefor; provided, however, that neither Agent nor Lenders shall be liable for any Taxes that may be due from Borrowers or with respect to any Collateral. 8.2.3 Account Verification. Whether or not a Default or Event of Default exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent or any Borrower to verify the validity, amount or any other matter relating to any Accounts of Borrowers by mail, telephone or
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otherwise. Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such verification process. 8.2.4 Maintenance of Dominion Account. Borrowers shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Agent. Borrowers shall obtain an agreement (in form and substance satisfactory to Agent) from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account and, if such Dominion Account is not maintained with Bank of America, requiring immediate transfer of all funds in the Dominion Account to a Dominion Account maintained with Bank of America, and waiving offset rights of such servicer or bank against any funds in the lockbox or Dominion Account, except offset rights for customary administrative charges. Neither Agent nor Lenders assume any responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank. 8.2.5 Proceeds of Collateral. Borrowers shall request in writing and otherwise take all reasonable steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If any Borrower or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account. 8.3 Administration of Inventory. 8.3.1 Records and Reports of Inventory. Each Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent inventory reports in form satisfactory to Agent, on such periodic basis as Agent may request (and in any event no less frequently than on a monthly basis). Each Borrower shall conduct a physical inventory at least once per calendar year (and on a more frequent basis if requested by Agent when an Event of Default exists) and periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request. Agent may participate in and observe each inventory or physical count. 8.3.2 Returns of Inventory. During Inventory Borrowing Period, no Borrower shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or would result therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds $100,000; and (d) any payment received by a Borrower for a return is promptly remitted to Agent for application to the Obligations. 8.3.3 Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any Inventory on consignment or approval, and shall take all steps to assure that all Inventory is produced in accordance with Applicable Law, including the FLSA. No Borrower shall sell any Inventory on consignment or approval or any other basis under which the customer may return or require a Borrower to repurchase such Inventory (other than customary right of customers to return merchandise in the Ordinary Course of Business). Borrowers shall use, store and maintain all Inventory with reasonable care and caution, in accordance with applicable standards of any insurance and in conformity with all Applicable Law, and shall make current rent payments (within applicable grace periods provided for in leases) at all locations where any Collateral is located.
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8.4 Administration of Equipment. 8.4.1 Records and Schedules of Equipment. Each Borrower shall keep accurate and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may request, a current schedule thereof, in form satisfactory to Agent. Promptly upon request, Borrowers shall deliver to Agent evidence of their ownership or interests in any Equipment. 8.4.2 Dispositions of Equipment. No Borrower shall sell, lease or otherwise dispose of any Equipment, without the prior written consent of Agent, other than (a) a Permitted Asset Disposition; and (b) replacement of Equipment that is worn, damaged or obsolete with Equipment of like function and value, if the replacement Equipment is acquired substantially contemporaneously with such disposition and is free of Liens other than Purchase Money Liens securing Permitted Purchase Money Debt. 8.4.3 Condition of Equipment. The Equipment is in good operating condition and repair, and all necessary replacements and repairs have been made so that the value and operating efficiency of the Equipment is preserved at all times, reasonable wear and tear excepted. Each Borrower shall ensure that the Equipment is mechanically and structurally sound, and capable of performing the functions for which it was designed, in accordance with the manufacturer’s published and recommended specifications. No Borrower shall permit any Equipment to become affixed to real Property unless any landlord or mortgagee delivers a Lien Waiver or similar instrument. 8.5 Administration of Deposit Accounts; Securities Accounts. Schedule 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Borrowers, including all Dominion Accounts. Each Borrower shall take all actions necessary to establish Agent’s control of each such Deposit Account and such Securities Account (other than an account exclusively used for payroll, payroll taxes or employee benefits, or an account containing not more that $10,000 at any time). Each Borrower shall be the sole account holder of each Deposit Account and Securities Account and shall not allow any other Person (other than Agent) to have control over a Deposit Account or a Securities Account or any Property deposited therein. Each Borrower shall promptly notify Agent of any opening or closing of a Deposit Account or a Securities Account and, with the consent of Agent, will amend Schedule 8.5 to reflect same. 8.6 General Provisions. 8.6.1 Location of Collateral. All tangible items of Collateral, other than Inventory in transit, shall at all times be kept by Borrowers at the business locations set forth in Schedule 8.6.1, except that Borrowers may (a) make sales or other dispositions of Collateral in accordance with Section 10.2.6; and (b) move Collateral to another location in the United States, upon 30 Business Days prior written notice to Agent. 8.6.2 Insurance of Collateral; Condemnation Proceeds. (a) Each Borrower shall maintain insurance with respect to the Collateral, covering casualty, hazard, public liability, theft, malicious mischief, and such other risks, in such amounts, with such endorsements, and with such insurers (rated A+ or better by A.M. Best Rating Guide) as are satisfactory to Agent. All proceeds under each policy shall be payable to Agent. From time to time upon request, Borrowers shall deliver to Agent the originals or certified copies of its insurance policies. Unless Agent shall agree otherwise, each policy shall include satisfactory endorsements (i) showing Agent as sole loss payee or additional insured, as appropriate; (ii) requiring 30 days prior written notice to Agent in the event of cancellation of the policy for any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by any act or neglect of any Borrower or the owner of the Property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy. If any Borrower fails to provide and pay for such insurance, Agent may, at its option, but shall
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not be required to, procure the insurance and charge Borrowers therefor. Each Borrower agrees to deliver to Agent, promptly as rendered, copies of all reports made to insurance companies. While no Event of Default exists, Borrowers may settle, adjust or compromise any insurance claim, as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be authorized to settle, adjust and compromise such claims. (b) Any proceeds of insurance (other than proceeds from workers’ compensation or D&O insurance or proceeds related to a Permitted Lien which are expressly required by the terms of the document under which such Permitted Lien was created to be used to repay the Debt secured by such Permitted Lien upon the occurrence of the event which resulted in such proceeds (so long as such Debt is permanently reduced thereby)) and any awards arising from condemnation of any Collateral shall be deposited into the Dominion Account. Any such proceeds or awards that relate to Inventory shall be applied to payment of the Revolver Loans, and then to any other Obligations outstanding. Subject to clause (c) below, any proceeds or awards that relate to Equipment or Real Estate shall be applied first to Revolver Loans and then to other Obligations. (c) If requested by Borrowers in writing within 15 days after Agent’s receipt of any insurance proceeds or condemnation awards relating to any loss or destruction of Equipment or Real Estate, Borrowers may use such proceeds or awards to repair or replace such Equipment or Real Estate (and until so used, the proceeds shall be held by Agent as Cash Collateral) as long as (i) no Default or Event of Default exists; (ii) such repair or replacement is promptly undertaken and concluded, in accordance with plans satisfactory to Agent; (iii) replacement buildings are constructed on the sites of the original casualties and are of comparable size, quality and utility to the destroyed buildings; (iv) the repaired or replaced Property is free of Liens, other than Permitted Liens that are not Purchase Money Liens; (v) Borrowers comply with disbursement procedures for such repair or replacement as Agent may reasonably require; and (vi) the aggregate amount of such proceeds or awards from any single casualty or condemnation does not exceed $250,000. 8.6.3 Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Borrowers. Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Borrowers’ sole risk. 8.6.4 Defense of Title to Collateral. Each Borrower shall at all times defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands whatsoever, except Permitted Liens. 8.7 Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Borrower’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without notice and in either its or a Borrower’s name, but at the cost and expense of Borrowers: (a) Endorse a Borrower’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and (b) During an Event of Default, (i) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts, by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to
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collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv) take control, in any manner, of any proceeds of Collateral; (v) prepare, file and sign a Borrower’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail addressed to a Borrower, and notify postal authorities to change the address for delivery thereof to such address as Agent may designate; (vii) endorse any Chattel Paper, Document, Instrument, invoice, freight bill, bill of lading, or similar document or agreement relating to any Accounts, Inventory or other Collateral; (viii) use a Borrower’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix) use the information recorded on or contained in any data processing equipment and computer hardware and software relating to any Collateral; (x) make and adjust claims under policies of insurance; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of credit or banker’s acceptance for which a Borrower is a beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill any Borrower’s obligations under the Loan Documents. SECTION 9. REPRESENTATIONS AND WARRANTIES 9.1 General Representations and Warranties. To induce Agent and Lenders to enter into this Agreement and to make available the Revolver Commitments, Loans and Letters of Credit, each Borrower represents and warrants that: 9.1.1 Existence and Qualification; Power. Each Borrower and its Subsidiaries is a corporation, duly organized, validly existing and in good standing under the laws of the state of its organization as specified in Schedule 9.1.4 annexed hereto, has the corporate power and authority to own and operate its properties, to lease the properties it operates and to conduct its business, is duly qualified and in good standing under the Applicable Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that that lack of good standing in any jurisdiction does not have a Material Adverse Effect. 9.1.2 Power; Authority; Enforceable Obligations. (a) Each Obligor has the corporate power and authority to make, deliver and perform each Loan Document to which it is a party and each Borrower has power and authority to borrow hereunder and has taken all necessary action to authorize the borrowings on the terms and conditions of this Agreement and each Obligor has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents to which it is a party. (b) No Governmental Approval is required in connection with the Borrowings hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the other Loan Documents. (c) The Loan Documents have been duly executed and delivered by each Obligor which is a party thereto, and constitute a legal, valid and binding obligation of each Obligor party thereto, enforceable against each such Obligor in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles. 9.1.3 No Legal Bar. The execution, delivery, and performance by each Obligor of the Loan Documents to which it is a party and compliance with the provisions thereof have been duly authorized by all requisite action on the part of such Obligor and do not and will not (i) violate or conflict with, or result in a breach of, or require any consent under (x) any Organic Documents or charter documents of such Obligor or any of its Subsidiaries, (y) any Applicable Laws, rules, or regulations or any order, writ, injunction, or decree of any Governmental Authority or arbitrator applicable to such
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Obligor, or (z) any material Contractual Obligation of such Obligor or any of its Subsidiaries or by which any of them or any of their property is bound or subject, (ii) constitute a default under any such Contractual Obligation, or (iii) result in, or require, the creation or imposition of any Lien on any of the properties of such Obligor or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of the Agent on behalf of Lenders). 9.1.4 Capital Structure. Schedule 9.1.4 shows, for each Borrower and Subsidiary, its name, its jurisdiction of organization, its authorized and issued Equity Interests, the holders of its Equity Interests (other than EMAK), and all agreements binding on such holders with respect to their Equity Interests. Each Borrower and Subsidiary has good title to its Equity Interests in its Subsidiaries, subject only to Agent’s Lien, and all such Equity Interests are duly issued, fully paid and non-assessable none of such Equity Interest constitute Margin Stock. There are no outstanding options to purchase, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to any Equity Interests of any Borrower or Subsidiary (other than EMAK). As of the Closing date, no Borrower or Subsidiary has any equity investment in any other Person other than specifically disclosed in Schedule 9.1.4. 9.1.5 Corporate Names; Locations. During the five years preceding the Closing Date, except as shown on Schedule 9.1.5, no Borrower or Subsidiary has been known as or used any corporate, fictitious or trade names, has been the surviving corporation of a merger or combination, or has acquired any substantial part of the assets of any Person. The chief executive offices and other places of business of Borrowers and Subsidiaries are shown on Schedule 8.6.1. During the five years preceding the Closing Date, no Borrower or Subsidiary has had any other office or place of business. 9.1.6 Title to Properties; Priority of Liens. Each Borrower and Subsidiary has good and marketable title to (or valid leasehold interests in) all of its Real Estate, and good title to all of its personal Property, including all Property reflected in any financial statements delivered to Agent or Lenders, in each case free of Liens except Permitted Liens. Each Borrower and Subsidiary has paid and discharged all lawful claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens. All Liens of Agent in the Collateral are duly perfected, first priority Liens, subject only to Permitted Liens that are expressly allowed to have priority over Agent’s Liens. As of the Closing Date, Schedule 7.3 annexed hereto contains a true, accurate and complete list of (i) all fee Real Estate owned by any Obligor, and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate of any Obligor, regardless of whether such Obligor is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. 9.1.7 Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Borrowers with respect thereto. Borrowers warrant, with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that: (a) it is genuine and in all respects what it purports to be, and is not evidenced by a judgment; (b) it arises out of a completed, bona fide sale and delivery of goods or rendition of services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto; (c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition of services, a copy of which has been furnished or is available to Agent on request;
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(d) it is not subject to any offset, Lien (other than Agent’s Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect; (e) no purchase order, agreement, document or Applicable Law restricts assignment of the Account to Agent (regardless of whether, under the UCC, the restriction is ineffective); (f) no extension, compromise, settlement, modification, credit, deduction or return has been authorized with respect to the Account, except discounts or allowances granted in the Ordinary Course of Business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to Agent hereunder; and (g) to the best of Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectibility of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Account Debtor’s financial condition. 9.1.8 Financial Statements. The consolidated and consolidating balance sheets, and related statements of income, cash flow and shareholder’s equity, of Borrowers and Subsidiaries that have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with GAAP, and fairly present the financial positions and results of operations of Borrowers and Subsidiaries at the dates and for the periods indicated. All projections delivered from time to time to Agent and Lenders have been prepared in good faith, based on reasonable assumptions in light of the circumstances at such time. Except as disclosed in the Draft Financial Statements attached hereto as Schedule 9.1.8, since December 31, 2004, there has been no change in the condition, financial or otherwise, of any Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect. No financial statement delivered to Agent or Lenders at any time contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading. Each of (i) EMAK, (ii) any other Borrower that borrows directly hereunder, and (iii) EMAK and its Subsidiaries on a consolidated basis is Solvent. 9.1.9 Surety Obligations. No Borrower or Subsidiary is obligated as surety or indemnitor under any bond or other contract that assures payment or performance of any obligation of any Person, except as permitted hereunder. 9.1.10 Taxes. Each Borrower and Subsidiary has filed all federal, state and local tax returns and other reports that it is required by law to file, and has paid, or made provision for the payment of, all Taxes upon it, its income and its Properties that are due and payable, except to the extent being Properly Contested. The provision for Taxes on the books of each Borrower and Subsidiary is adequate for all years not closed by applicable statutes, and for its current Fiscal Year. No Obligor is a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations. 9.1.11 Brokers. There are no brokerage commissions, finder’s fees or investment banking fees payable in connection with any transactions contemplated by the Loan Documents, and each Borrower hereby indemnifies Agent and Lenders against, and agrees that it will hold Agent and Lenders harmless from, any claim, demand or liability for any such brokerage commissions, lender’s fees or investment banking fees alleged to have been incurred in connection herewith and therewith and any expense including lease fees, expense and disbursements of counsel arising in connection with any such claim, demand or liability.
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9.1.12 Intellectual Property. Each Borrower and Subsidiary owns or has the lawful right to use all Intellectual Property necessary for the conduct of its business, without conflict with any rights of others. There is no pending or, to any Borrower’s knowledge, threatened Intellectual Property Claim with respect to any Borrower, any Subsidiary or any of their Property (including any Intellectual Property). Except as disclosed on Schedule 9.1.12, no Borrower or Subsidiary pays or owes any Royalty or other compensation to any Person with respect to any Intellectual Property. All Intellectual Property owned, used or licensed by, or otherwise subject to any interests of, any Borrower or Subsidiary is shown on Schedule 9.1.12. To the knowledge of any Borrower, the use of the Intellectual Property by Borrowers and Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 9.1.13 Governmental Approvals. Each Borrower and Subsidiary has, is in compliance with, and is in good standing with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Borrowers and Subsidiaries have complied with all foreign and domestic laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. 9.1.14 Compliance with Laws. Each Borrower and Subsidiary has duly complied, and its Properties and business operations are in compliance, in all material respects with all Applicable Law, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been no citations, notices or orders of material noncompliance issued to any Borrower or Subsidiary under any Applicable Law. No Inventory has been produced in violation of the FLSA. 9.1.15 Compliance with Environmental Laws. Except as disclosed on Schedule 9.1.15, no Borrower’s or Subsidiary’s past or present operations, Real Estate or other Properties are subject to any federal, state or local investigation to determine whether any remedial action is needed to address any environmental pollution, hazardous material or environmental clean-up. No Borrower or Subsidiary has received any Environmental Notice. No Borrower or Subsidiary has any contingent liability with respect to any Environmental Release, environmental pollution or hazardous material on any Real Estate now or previously owned, leased or operated by it. The representations and warranties contained in the Environmental Agreement (if any) are true and correct on the Closing Date. 9.1.16 Insurance. The properties of each Borrower and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Borrower or such Subsidiary operates, and all other insurance required to be maintained pursuant to Section 10.1.7. 9.1.17 Burdensome Contracts. No Borrower or Subsidiary is a party or subject to any contract, agreement or charter restriction that could reasonably be expected to have a Material Adverse Effect. No Borrower or Subsidiary is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.17, none of which prohibit the execution or delivery of any Loan Documents by an Obligor nor the performance by an Obligor of any obligations thereunder. 9.1.18 Litigation. Except as shown on Schedule 9.1.18, there are no proceedings or investigations pending or, to any Borrower’s knowledge, threatened against any Borrower or Subsidiary, or any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined adversely to any Borrower or Subsidiary. No Borrower or Subsidiary is in default with respect to any order, injunction or judgment of any Governmental Authority.
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9.1.19 No Defaults. To the knowledge of Borrowers, no event or circumstance has occurred or exists that constitutes a Default or Event of Default. No Borrower or Subsidiary is in default, and no event or circumstance has occurred or exists that with the passage of time or giving of notice would constitute a default, under any Material Contract or any other Related Document or in the payment of any Borrowed Money. To the knowledge of Borrowers, there is no basis upon which any party (other than a Borrower or Subsidiary) could terminate a Material Contract prior to its scheduled termination date. 9.1.20 ERISA. Except as disclosed on Schedule 9.1.20, no Borrower or Subsidiary has any Multiemployer Plan or Foreign Plan. Each Borrower and Subsidiary is in full compliance with the requirements of all Applicable Law, including ERISA, relating to each Multiemployer Plan and Foreign Plan. No fact or situation exists that could reasonably be expected to result in a Material Adverse Effect in connection with any Multiemployer Plan or Foreign Plan. No Borrower or Subsidiary has any withdrawal liability in connection with a Multiemployer Plan or Foreign Plan. All employer and employee contributions to Foreign Plans, to the extent required by law or the terms of such plans, have been made or accrued in accordance with normal accounting principles. The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance and/or the book reserve established for each Foreign Plan, together with any accrued contributions, are sufficient to provide the accrued benefit obligations of all participants in such plans according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles. Each Foreign Plan required to be registered has been registered and is maintained in good standing with all applicable regulatory authorities. 9.1.21 Trade Relations. There exists no actual or threatened termination, limitation or modification of any business relationship between any Borrower or Subsidiary and any customer or supplier, or any group of customers or suppliers, who individually or in the aggregate are material to the business of such Borrower or Subsidiary. There exists no condition or circumstance that could reasonably be expected to impair the ability of any Borrower or Subsidiary to conduct its business at any time hereafter in substantially the same manner as conducted on the Closing Date. 9.1.22 Labor Relations. Except as described on Schedule 9.1.22, no Borrower or Subsidiary is party to or bound by any collective bargaining agreement, management agreement or consulting agreement. There are no material grievances, disputes or controversies with any union or other organization of any Borrower’s or Subsidiary’s employees, or, to any Borrower’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective bargaining. 9.1.23 Payable Practices. No Borrower or Subsidiary has made any material change in its historical accounts payable practices from those in effect on the Closing Date. 9.1.24 Not a Regulated Entity. No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940; (b) a “holding company,” a “subsidiary company” of a “holding company,” or an “affiliate” of either, within the meaning of the Public Utility Holding Company Act of 1935; or (c) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Debt. 9.1.25 Margin Stock. No Borrower or Subsidiary is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds or Letters of Credit will be used by Borrowers to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors.
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9.1.26 Plan Assets. No Borrower is an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA or any “plan” (within the meaning of Section 4975 of the Internal Revenue Code), and neither the execution of this Agreement nor the funding of any Loans gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code. 9.1.27 Shareholder Agreements. As of the Closing Date, no Obligor is a party to any material agreement with Donald A. Kurz or Crown, or their Affiliates, other than, the Securities Purchase Agreement, the Warrants, the Registration Rights Agreement and the Certificate of Designation. 9.1.28 BK Agreements and Other Customer Agreements. Borrowers have delivered to Agent a copy of each BK Services Agreement, BK Supply Agreement, RSI Supply Agreement, Other Customer Agreement or, to the knowledge of Borrowers, any other written customer supply or service agreement in effect on or after the Closing Date (other than a purchase order) to the extent an Account owing to any Borrower has arisen from an Account Debtor party to such other written customer supply or service agreement or any of its Affiliates or is reasonably expected to arise from an Account Debtor party to such agreement or any of its Affiliates within 12 months from any date of determination. 9.1.29 Permits. Each of the Borrowers and their Subsidiaries has such certificates, permits, licenses (including trademark and other Intellectual Property licenses), franchises, consents, approvals, authorizations and clearances that are material to the condition (financial or otherwise), business or operations of any Borrower or Subsidiary (“Permits”), except to the extent the lack thereof would not have a Material Adverse Effect; and all such Permits are valid and in full force and effect and will be valid and in full force and effect immediately after the Closing Date, except for those where the failure to be valid or in effect could not reasonably be expected to result in a Material Adverse Effect. Each of the Borrowers and their Subsidiaries is in compliance in all respects with its obligations under such Permits, except where failure to be in compliance could not reasonably be expected to result in a Material Adverse Effect, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination of such Permits, except where such revocation or termination could not reasonably be expected to result in a Material Adverse Effect. 9.1.30 Inventory Locations. Schedule 8.6.1 attached hereto lists all locations at which any Borrower or any of its Domestic Subsidiaries has any personal Property (including without limitation Inventory) stored or otherwise located. None of the Borrowers or any of its Subsidiaries have any personal Property (including without limitation any Inventory) stored in or otherwise located on any of the following locations: 19400 Western Avenue, Torrance, California 90502; 553-A South Joliet Road, Bollingbrook, Illinois 60440; 5335 West 74th Street, Indianapolis, Indiana 46268; and 490 Supreme Drive, Bensenville, Illinois 60106. 9.2 Matters Relating to Collateral. 9.2.1 Creation, Perfection and Priority of Liens. The execution and delivery of the Security Documents by each Obligor party thereto and the delivery to Agent of the Pledged Collateral (all of which Pledged Collateral has been so delivered) are effective to create in favor of Agent for the benefit of Lenders, as security for the respective Secured Obligations (as defined in the applicable Security Document in respect of any Collateral), a valid and perfected first priority Lien on all of the Collateral, and all filings and other actions necessary or desirable to perfect and maintain the perfection and first priority status of such Liens have been duly made or taken and remain in full force and effect, other than the filing of any UCC financing statements delivered to Agent for filing (but not yet filed) and the periodic filing of UCC continuation statements in respect of UCC financing statements filed by or on behalf of Agent.
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9.2.2 Governmental Approvals. No Governmental Approval is required for either (i) the pledge or grant by any Obligor of the Liens purported to be created in favor of Agent pursuant to any of the Security Documents, or (ii) the exercise by Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created pursuant to any of the Security Documents or created or provided for by applicable law), except for filings or recordings contemplated by Section 9.2.1 and except as may be required, in connection with the disposition of any Pledged Collateral, by laws generally affecting the offering and sale of securities. As of the Closing Date, Borrowers and Subsidiaries have received no written notice of any pending or threatened condemnation proceeding, exercise of the power of eminent domain by any Governmental Authority, or any similar proceeding affecting any facility or any interest therein. As of the Closing Date, no such proceeding is pending, contemplated or threatened. 9.2.3 Absence of Third-Party Filings. Except such as may have been filed in favor of Agent as contemplated by Section 9.2.1 and as set forth on Schedule 9.2.3 annexed hereto, (i) no effective UCC financing statement, fixture filing or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office, and (ii) no effective filing covering all or any part of the Intellectual Property Collateral is on file in the PTO. 9.2.4 Margin Stock. The pledge of the Pledged Collateral pursuant to the Security Documents does not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. 9.2.5 Information Regarding Collateral; Representations and Warranties. All information supplied to Agent by or on behalf of any Obligor with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects. All representations and warranties of the Obligors set forth in the Security Documents are true and correct. 9.3 Complete Disclosure. No statement, information, report, representation, or warranty made by any Obligor in any Loan Document or furnished to Agent or any Lender in connection with any Loan Document contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein not misleading. Any projections, budgets, and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by any Borrower or the Obligors to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. There are no facts known (or which should upon the reasonable exercise of diligence be known) to any Borrower (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby. SECTION 10. COVENANTS AND CONTINUING AGREEMENTS 10.1 Affirmative Covenants. For so long as any Revolver Commitments or Obligations are outstanding, each Borrower shall, and shall cause each Subsidiary to: 10.1.1 Inspections; Appraisals. (a) Permit Agent (or any of its authorized representatives) from time to time, subject (except when a Default or Event of Default exists) to reasonable notice and normal business hours, to visit and inspect the Properties of any Borrower or Subsidiary, inspect, audit and make extracts from any Borrower’s or Subsidiary’s books and records, conduct audit field examinations and appraisals and discuss with its officers, employees, agents, advisors and independent accountants such Borrower’s or
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Subsidiary’s business, financial condition, assets, prospects and results of operations. Lenders may participate in any such visit or inspection, at their own expense. Neither Agent nor any Lender shall have any duty to any Borrower to make any inspection, nor to share any results of any inspection, appraisal or report with any Borrower. To the extent any appraisal or other information is shared by Agent or a Lender with any Borrower, such Borrower acknowledges that it was prepared by Agent and Lenders for their purposes and Borrowers shall not be entitled to rely upon it. (b) Reimburse Agent for all charges, costs and expenses of Agent in connection with (i) examinations of any Obligor’s books and records or any other financial or Collateral matters as Agent deems appropriate; and (ii) appraisals of Inventory, Equipment and Real Estate (if any). Borrowers shall pay Agent’s then standard charges for each day that an employee of Agent or its Affiliates is engaged in any examination activities, and shall pay the standard charges of Agent’s internal appraisal group. This Section shall not be construed to limit Agent’s right to conduct examinations or to obtain appraisals at any time in its discretion, nor to use third parties for such purposes. 10.1.2 Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent and Lenders (unless extended in writing by Agent in its sole discretion): (a) as soon as available, and in any event within 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating basis for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent; (b) as soon as available, and in any event within 45 days after the close of each Fiscal Quarter (excluding the Fiscal Quarter ending on December 31), (i) balance sheets as of the end of such Fiscal Quarter and the related statements of income, cash flow and shareholders’ equity for such Fiscal Quarter, on consolidated and consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes, and (ii) the Form 10-Q filed by Borrower Agent with the Securities and Exchange Commission with respect to such Fiscal Quarter; (c) as soon as available, and in any event within 30 days after the end of each month, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal quarter or year-end adjustments and the absence of footnotes; (d) concurrently with delivery of financial statements under clauses (a), (b) and (c) above, (i) balance sheets as of the end of the applicable period and the related statements of income, cash flow and shareholders’ equity for such period, on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries), setting forth in comparative form corresponding figures for the preceding applicable period and certified by the chief
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financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such period (together with reconciliation information reconciling the exclusion of EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) and (ii) a Compliance Certificate executed by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent; (e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such financial statements; (f) not later than the end of each Fiscal Year (and in any event prior to approval thereof by the Board of Directors of any Borrower), projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the next three Fiscal Years, year by year, and for the next Fiscal Year, month by month; (g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent; (h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower; (i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; (j) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business; (k) as soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Agent; (l) (i) no later than 20 days after the Closing Date, Borrowers shall have delivered to Agent a fully executed Collateral Access Agreement substantially in the form of Exhibit D annex hereto or as otherwise agreed to by Agent (or in cases where Borrowers have an existing Collateral Access Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and its landlord with respect to each location identified on Schedule 8.6.1, which schedule includes the locations where any Inventory (other than immaterial Inventory) is located, including locations of warehousemen and shipping companies in possession of Inventory (other than immaterial Inventory) and (ii) no later than 20 days after Agent’s request with respect to any Borrower’s location created after the Closing Date where any Inventory (other than immaterial Inventory) is located, including locations of warehousemen and shipping companies in possession of Inventory (other than immaterial Inventory), Borrowers shall have delivered to Agent a fully executed Collateral Access Agreement substantially in the form of Exhibit D annex hereto or any other form of Lien Waiver reasonably requested by Agent with respect thereto. (m) (i) ten days prior to the formation of any Subsidiary or ten days prior to the consummation of any Acquisition (or such shorter period agreed to by Agent), notice of such formation or such Acquisition, together with all of the data required to be set forth in Schedule 9.1.4 annexed hereto with respect to all Borrowers and Subsidiaries (it being understood that such written notice shall be
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deemed to supplement Schedule 9.1.4 annexed hereto for all purposes of this Agreement) and such other information regarding such Subsidiary or such Acquisition as may be reasonably requested by Agent; and (ii) promptly upon any Person becoming a Subsidiary of any Borrower, a written notice setting forth with respect to such Person the date on which such Person became a Subsidiary of such Borrower; provided that nothing in this paragraph should be deemed to authorize any Acquisition and no Acquisition shall be consummated unless consented to by Agent and Required Lenders in the their sole discretion; (n) annually, within 120 days after the end of each Fiscal Year, a certificate of Borrower Agent executed by its Senior Officer (and, if requested by Agent, any insurance broker of Borrowers) setting forth the nature and extent of all insurance maintained by Borrowers and their Subsidiaries in accordance with Section 10.1.7 or any Security Documents (and which, in the case of a certificate of a broker, were placed through such broker) and certifying that Borrowers are in compliance with Sections 8.6.2(a) and 10.1.7; (o) as soon as practicable following receipt thereof, copies of all environmental audits and reports, whether prepared by personnel of Borrowers or Subsidiaries or by independent consultants, with respect to significant environmental matters at any real Property or which relate to an Environmental Notice in either case which could reasonably be expected to result in a Material Adverse Effect; (p) promptly after any Senior Officer of any Borrower knows of any actual liability (other than contractual liability incurred in purchase orders in the Ordinary Course of Business) or potential contingent liabilities where the amount involved exceeds the Threshold Amount and such actual or potential contingent liabilities are not reflected in the most recent financial statements delivered to Lenders pursuant to Sections 10.1.2(a), 10.1.2(b) or 10.1.2(c) written notice thereof; (q) promptly, and in any event within five Business Days (i) after any material change in or termination of any contractual arrangement between any Borrower on the one hand and any member of the BK Group or any other material customer of any Borrower on the other hand (including without limitation any BK Agreements), or (ii) after learning of any impending material change or termination of any contractual arrangement between any Borrower on the one hand and any member of the BK Group or any other material customer of any Borrower on the other hand (including without limitation any of the BK Agreements or any of the Other Customer Agreements), written notice thereof; (r) promptly, and in any event within five Business Days of entering into any new BK Services Agreement, BK Supply Agreement, RSI Supply Agreement, Other Customer Agreement or any other customer agreement (other than a purchase order) after the Closing Date, a copy of such agreement; (s) promptly, and in any event within five Business Days of any Borrower having any other location on which they store or otherwise place Inventory or other personal Property that is not already disclosed to Agent pursuant to Section 9.1.30 a notice of such location together with such other details reasonably satisfactory to Agent. (t) promptly, and in any event before engaging any new customs broker (other than the customs broker that has executed an Imported Goods Agreement), a fully executed Imported Goods Agreement executed by the applicable Borrower(s) and such new customs broker; (u) promptly, and in any event within 20 Business Days of the Closing Date, evidence in form and substance satisfactory to Agent that the Liens set forth in Schedule 10.1.2 have been released or terminated;
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(v) promptly, and in any event within 20 Business Days of the Closing Date, a fully executed Securities Account Control Agreement (or in cases where Borrowers have an existing Securities Account Control Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and Fidelity Investments; (w) promptly, and in any event within 20 Business Days of the Closing Date, a fully executed Securities Account Control Agreement (or in cases where Borrowers have an existing Securities Account Control Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and UBS or evidence in form and substance satisfactory to Agent that the relevant Securities Account has been terminated; (x) promptly, and in any event within 10 days of the Closing Date, a fully executed Imported Goods Agreement executed by any Borrower that imports Inventory into the United States and its customs broker. (y) promptly, and in any event within ten Business Days of the Closing Date, evidence in form and substance satisfactory to Agent that the Securities Account (account number 22024479) and the bank accounts (account numbers 14592-02663, 14590-29277 and 3299837643), in each case with Bank of America has been closed; and (z) promptly, such other data and information as from time to time may be reasonably requested by Agent. 10.1.3 Notices. Notify Agent and Lenders in writing, promptly after a Borrower’s obtaining knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement of any proceeding or investigation, whether or not covered by insurance, if an adverse determination could have a Material Adverse Effect; (b) any pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract; (c) any default under or termination of a Material Contract or any other Related Document; (d) the existence of any Default or Event of Default; (e) any material change in accounting policies or financial reporting practices of Borrowers and Subsidiaries; (f) any judgment in an amount exceeding the Threshold Amount; (g) the assertion of any Intellectual Property Claim, if an adverse resolution could have a Material Adverse Effect; (h) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), if an adverse resolution could have a Material Adverse Effect; (i) any Environmental Release by an Obligor or on any Property owned, leased or occupied by an Obligor; or receipt of any Environmental Notice; (j) the discharge of or any withdrawal or resignation by Borrowers’ independent accountants; or (k) any opening of a new office or place of business, at least 30 days prior to such opening. 10.1.4 Landlord and Storage Agreements. Upon request, provide Agent with copies of all existing agreements, and promptly after execution thereof provide Agent with copies of all future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any Collateral may be kept or that otherwise may possess or handle any Collateral. 10.1.5 Compliance with Laws. Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release occurs at or on any Properties of any Borrower or Subsidiary, it shall act promptly and diligently to investigate and report to Agent and all appropriate
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Governmental Authorities the extent of, and to make appropriate remedial action to eliminate, such Environmental Release, whether or not directed to do so by any Governmental Authority. 10.1.6 Taxes. Pay and discharge all Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested. 10.1.7 Insurance. In addition to the insurance required hereunder with respect to Collateral, maintain insurance with insurers (rated A+ or better by Best Rating Guide) satisfactory to Agent, (a) with respect to the Properties and business of Borrowers and Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as are customary for companies similarly situated, and (b) business interruption insurance in an amount not less than $2,000,000, with deductibles and subject to an Insurance Assignment satisfactory to Agent. 10.1.8 Licenses. Keep each License affecting any Collateral (including the manufacture, distribution or disposition of Inventory) or any other material Property of Borrowers and Subsidiaries in full force and effect; promptly notify Agent of any proposed modification to any such License, or entry into any new License, in each case at least 30 days prior to its effective date; pay all Royalties when due; and notify Agent of any default or breach asserted by any Person to have occurred under any License. 10.1.9 Future Subsidiaries. Within five Business Days of the date of the formation or on or before the date of Acquisition (provided that nothing in this paragraph shall be deemed to authorize the Acquisition of any entity) of any Subsidiary or Borrowers shall deliver, or cause to be delivered, to Agent the following items applicable to such Subsidiary, each in form and substance satisfactory to Agent: (a) If such Subsidiary is a Domestic Subsidiary, (i) an Additional Borrower counterpart of this Agreement executed by such Subsidiary in the form of Exhibit F annexed hereto, (ii) a counterpart of the Domestic Pledge Agreement executed by such Subsidiary, together with any required supplements to any schedules hereto or thereto, and (iii) the applicable items required by Sections 6.1(d) and 6.1(e) as if such Subsidiary were executing this Agreement on the date hereof and, if requested by Agent, such other items that would be required by Section 6.1 if such Subsidiary were executing this Agreement on the date hereof; provided that notwithstanding compliance with this Section 10.1.9 and any other provision of this Agreement, none of the Accounts and Inventory of such Subsidiary shall be included in Eligible Accounts and Eligible Inventory, as applicable, until such time as Agent shall have obtained field examination reports and appraisals with respect thereto in form and substance satisfactory to Agent; (b) If such Subsidiary is a Foreign Subsidiary, any required counterparts of, or supplements to, the applicable Foreign Security Agreement in order to pledge 65% of the equity interests of such Foreign Subsidiary; and (c) Such other assurances, certificates, documents, consents or opinions as Agent, Issuing Lender or the Required Lenders reasonably may require. In addition, Borrowers shall execute such documents, instruments and agreements and take such other actions as Agent shall require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Subsidiary, including delivery of such legal opinions, in form and substance satisfactory to Agent, as it shall deem appropriate. 10.1.10 Preservation of Existence. Except to the extent permitted by Section 10.2.9 preserve and maintain its existence, licenses, permits, rights, franchises and privileges necessary or
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desirable in the normal conduct of its business, except where failure to do so does not have a Material Adverse Effect. 10.1.11 Maintenance of Properties. Maintain, preserve and protect all of its material Properties and Equipment necessary in the operation of its business in good order and condition, subject to wear and tear in the ordinary course of business. 10.1.12 Compliance with ERISA. Except with respect to each Multiemployer Plan, (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended, and other federal or state law; (b) cause each Plan which is qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412 of the Internal Revenue Code of 1986, as amended. 10.1.13 Compliance With Agreements. Comply with all Contractual Obligations to which any one or more of them is a party, except for any such Contractual Obligations (a) the performance of which would cause a Default or Event of Default, (b) then being contested by any of them in good faith by appropriate proceedings, or (c) if the failure to comply therewith does not have a Material Adverse Effect. 10.1.14 Use of Proceeds. Use the proceeds of Revolver Loans solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d) for working capital and other lawful corporate purposes of Borrowers. 10.1.15 Securities Account Control Agreements. Execute and cause to be executed a Securities Account Control Agreement for any additional Securities Account established with a securities intermediary subsequent to the Closing Date within five (5) Business Days of establishment thereof. 10.1.16 Prodesign Marketing. Cause Prodesign Marketing Limited, a Northern Ireland company (“Prodesign”), to be liquidated within 15 months of the Closing Date and in any event (i) not transfer any assets of any Obligor to Prodesign and not guarantee any obligations of Prodesign at any time on or after the Closing Date and (ii) not permit Prodesign to own assets exceeding $10,000 in the aggregate at any time. 10.1.17 Bank Products. In order to facilitate the administration of this Agreement and Agent’s security interest in the Collateral, maintain Bank of America and its Affiliates as Borrowers’ principal depository bank, including for the maintenance of operating, administrative, cash management, collection activity and other deposit accounts for the conduct of Borrowers’ business, and as the principal provider of cash management services. 10.2 Negative Covenants. For so long as any Revolver Commitments or Obligations are outstanding, each Borrower shall not, and shall cause each Subsidiary not to: 10.2.1 Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except: (a) the Obligations; (b) Debt of any Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK to any other Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK; provided that (a) all such intercompany Debt shall be evidenced by promissory notes that are pledged to Agent pursuant to the terms of the applicable Security Document, (b) all such intercompany Debt owed by any such Borrower to any such other Borrower shall be subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an
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intercompany subordination agreement, and (c) any payment by any such Borrower under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any intercompany Debt owed by such Borrower to any such other Borrower for whose benefit such payment is made; (c) Permitted Purchase Money Debt; (d) Borrowed Money (other than the Obligations, Subordinated Debt and Permitted Purchase Money Debt), but only to the extent outstanding on the Closing Date and listed on Schedule 10.2.1 and not satisfied with proceeds of the initial Loans; (e) Bank Product Debt; (f) Debt of Foreign Subsidiaries to banks for working capital purposes not exceeding 5,000,000 in the aggregate at any time outstanding; (g) Permitted Contingent Obligations; (h) Refinancing Debt as long as each Refinancing Condition is satisfied; and (i) Debt that is not included in any of the preceding clauses of this Section, is not secured by a Lien and does not exceed $1,000,000 in the aggregate at any time. 10.2.2 Permitted Liens. (i) Create or suffer to exist any Lien or Negative Pledge upon any of its Property, except the following (collectively, “Permitted Liens”): (a) Liens in favor of Agent; (b) Purchase Money Liens securing Permitted Purchase Money Debt; (c) Liens for Taxes not yet due or being Properly Contested; (d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; (e) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts (except those relating to Borrowed Money), statutory obligations and other similar obligations, or arising as a result of progress payments under government contracts, as long as such Liens are at all times junior to Agent’s Liens; (f) Liens arising by virtue of a judgment or judicial order against any Borrower or Subsidiary, or any Property of a Borrower or Subsidiary, as long as such Liens are (i) in existence for less than 20 consecutive days or being Properly Contested, and (ii) at all times junior to Agent’s Liens; (g) easements, rights-of-way, restrictions, covenants or other agreements of record, and other similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business;
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(h) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection; (i) existing Liens and Negative Pledges shown on Schedule 10.2.2; and (j) Liens on the assets of Foreign Subsidiaries to secure the Debt permitted by Section 10.2.1(f). (ii) Equitable Lien in Favor of Lenders. If Borrowers or Subsidiaries shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Liens excepted by the provisions of Section 10.2.2(i), they shall make or cause to be made effective provision whereby the Obligations will be secured by such Lien equally and ratably with any and all other Debt secured thereby as long as any such Debt shall be so secured; provided that, notwithstanding the foregoing, this covenant shall not be construed as a consent by Required Lenders to the creation or assumption of any such Lien not permitted by the provisions of Section 10.2.2(i). (iii) No Further Negative Pledges. Except with respect to (i) specific property encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to an Asset Disposition, and (ii) any debt facility of a Foreign Subsidiary in connection with Indebtedness of such Foreign Subsidiary permitted by Section 10.2.1(f), enter into any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired. (iv) No Restrictions on Subsidiary Distributions to Borrowers or Other Subsidiaries. Except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.17 and except with respect to any debt facility of a Foreign Subsidiary in connection with Debt of such Foreign Subsidiary permitted by Section 10.2.1(f), create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to (i) pay dividends or make any other distributions on any of such Subsidiary’s capital stock owned by any Borrower or any other Subsidiary of such Borrower, (ii) repay or prepay any Debt owed by such Subsidiary to any Borrower or any other Subsidiary of such Borrower, (iii) make loans or advances to any Borrower or any other Subsidiary of such Borrower, or (iv) transfer any of its property or assets to any Borrower or any other Subsidiary of such Borrower. 10.2.3 Capital Expenditures. Make Capital Expenditures in excess of $2,500,000 in the aggregate during any Fiscal Year; provided, however, that if the amount of Capital Expenditures permitted to be made in any Fiscal Year exceeds the amount actually made, up to $500,000 of such excess may be carried forward to the next Fiscal Year. 10.2.4 Restricted Payments. Declare or make any Restricted Payments, except for: (a) so long as no Default or Event of Default or material adverse alteration in the relationship between Borrowers and any member of the BK Group has occurred and is continuing or would result therefrom and so long as after giving pro forma effect thereto, the Fixed Charge Coverage Ratio is at least 1.10:1.00, EMAK may make dividend payments to the holders of its Preferred Stock; provided that no such dividend payments shall be made (i) unless and until Lenders shall have received the Compliance Certificate due with the audited financial statements for the Fiscal Year ending on December 31, 2006 that certifies that Borrowers are in full compliance with all of the covenants under the Credit Agreement and that there are no Defaults or Events of Default that have occurred and are continuing or (ii) during the Inventory Borrowing Period; provided further that the aggregate amount of
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such payments (including dividends to Crown with respect to Preferred Stock) shall not exceed $1,500,000 in any twelve-month period (it being understood and agreed that the aggregate amount of such amount may exceed such $1,500,000 for such twelve month period if such excess payment is for the sole purpose of catching up on dividend payments with respect to the Preferred Stock that were not made in a timely manner in accordance with the Certificate of Designation and if at the time of any such excess payment, (A) all of the conditions required to make such $1,500,000 payment are also met with respect to such excess payment and (B) after giving effect to such excess payment, there is an Availability of at least $3,500,000 and Lenders shall have been delivered a Borrowing Base Certificate showing such Availability and a Compliance Certificate showing that Borrowers are in compliance with all of the other provisions of this Agreement after giving effect to such excess payment); (b) Borrowers may make cash payments to HK Subsidiaries in an aggregate amount not exceeding the lesser of (i) $5,000,000 in any Fiscal Year (and in any event not exceeding $1,000,000 in any of the first three Fiscal Quarters and $2,000,000 in the fourth Fiscal Quarter) and (ii) an amount equal to the operating costs (including Taxes and Capital Expenditures) incurred and payable by HK Subsidiaries during such Fiscal Year (or such Fiscal Quarter, as applicable); and (c) Borrowers may make a loan to UK Subsidiaries on or prior to June 30, 2006 in an aggregate amount not exceeding $500,000 for the sole purpose of such UK Subsidiaries paying amounts to settle working capital adjustment claims arising from the acquisition of Megaprint Group Limited. 10.2.5 Restricted Investments. Make any Restricted Investment. 10.2.6 Disposition of Assets. Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of Equipment under Section 8.4.2, a transfer of Property by a Subsidiary or Obligor to a Borrower, or Asset Dispositions permitted by Section 10.2.9. 10.2.7 Loans. Make any loans or other advances of money to any Person, except (a) advances to an officer or employee for salary, travel expenses, commissions and similar items in the Ordinary Course of Business and in any event not exceeding $250,000 in the aggregate at any time; (b) prepaid expenses and extensions of trade credit made in the Ordinary Course of Business; (c) deposits with financial institutions permitted hereunder; and (d) as long as no Default or Event of Default exists, intercompany loans by a Borrower to another Borrower so long as such intercompany loans meet the requirements described in Section 10.2.1(b). 10.2.8 Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent). 10.2.9 Fundamental Changes. Merge, combine or consolidate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions, except for mergers or consolidations of a wholly-owned Subsidiary with another wholly-owned Subsidiary or into a Borrower; change its name or conduct business under any fictitious name; change its tax, charter or other organizational identification number; or change its form or state of organization.
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10.2.10 Subsidiaries. Form or acquire any Subsidiary after the Closing Date, except in accordance with Sections 10.1.9 and 10.2.5; or permit any existing Subsidiary to issue any additional Equity Interests except director’s qualifying shares. 10.2.11 [Intentionally Omitted.] 10.2.12 Tax Consolidation. File or consent to the filing of any consolidated income tax return with any Person other than Borrowers and Subsidiaries. 10.2.13 Accounting Changes. Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.2; or change its Fiscal Year. 10.2.14 Restrictive Agreements. Become a party to any Restrictive Agreement, except (a) a Restrictive Agreement as in effect on the Closing Date and shown on Schedule 9.1.17; (b) a Restrictive Agreement relating to secured Debt permitted hereunder, if such restrictions apply only to the collateral for such Debt; and (c) customary provisions in leases and other contracts restricting assignment thereof. 10.2.15 Hedging Agreements. Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of Business and not for speculative purposes. 10.2.16 Conduct of Business. Engage in any business, other than its business as conducted on the Closing Date and any activities incidental thereto. 10.2.17 Affiliate Transactions. Enter into or be party to any transaction with any holder of 10% or more of any class of capital stock of any Borrower or with an Affiliate, except (a) transactions contemplated by the Loan Documents; (b) payment of reasonable compensation to officers and employees for services actually rendered, and loans and advances permitted by Section 10.2.7; (c) payment of customary directors’ fees and indemnities; (d) transactions solely among Borrowers; (e) transactions with Affiliates that were consummated prior to the Closing Date, as shown on Schedule 10.2.17; and (f) transactions with Affiliates in the Ordinary Course of Business, upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate. 10.2.18 Plans. Become party to any Multiemployer Plan or Foreign Plan, other than any in existence on the Closing Date; or at any time engage in a transaction which could be subject to Sections 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt “prohibited transaction” (as defined in Section 4975 of the Internal Revenue Code of 1986, as amended); (b) fail to comply with ERISA or any other Applicable Laws; or (c) incur any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), which, with respect to each event listed above, has a Material Adverse Effect. 10.2.19 Amendments to Subordinated Debt. Amend, supplement or otherwise modify any document, instrument or agreement relating to any Subordinated Debt, if such modification (a) increases the principal balance of such Debt, or increases any required payment of principal or interest; (b) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (c) shortens the final maturity date or otherwise accelerates amortization; (d) increases the interest rate; (e) increases or adds any fees or charges; (f) modifies any covenant in a manner or adds any representation, covenant or default that is more onerous or restrictive in any material respect for any Borrower or Subsidiary, or that is otherwise materially adverse to any Borrower, any Subsidiary or Lenders; or (g) results in the Obligations not being fully benefited by the subordination provisions thereof.
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10.2.20 Margin Regulations. Use the proceeds of any Extensions of Credit hereunder for “purchasing” or “carrying” Margin Stock within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time or for any purpose which violates, or which would be inconsistent with, the provisions of Regulations T, U or X of such Board of Governors. 10.2.21 Amendments or Waivers of the Related Documents. Agree to any amendment materially adverse to any Borrower or to Agent or any Lender, or waive any of its material rights in favor of any Obligor under, any Related Document or any Organic Document of any Obligor after the Closing Date, without in each case obtaining the prior written consent of Required Lenders to such amendment or waiver. 10.2.22 Amendments to Transfer Pricing. Agree to or otherwise implement or institute any change to the transfer pricing between Borrowers on the one hand and Subsidiaries that are not Borrowers on the other hand if such change is less favorable to any Borrower. 10.2.23 Bills of Lading. Permit any bill of lading relating to any Inventory of any Borrower or any Inventory (whether or not then owned by any Borrower) being sold to BK, RSI and their respective Affiliates, in each case in transit to the United States leaving for the United States on or after April 10, 2006 to name any Person other than Agent as consignee of such bill of lading. 10.3 Financial Covenants. For so long as any Revolver Commitments or Obligations are outstanding, Borrowers shall: 10.3.1 Minimum EBITDA. Achieve EBITDA (i) that is no less than negative $2,250,000 calculated as of March 31, 2006 and April 30, 2006, for the three and four month period, respectively, then ended, (ii) that is no less than $2,000,000 calculated as of May 31, 2006, June 30, 2006 and July 31, 2006 for the five, six and seven month period, respectively, then ended, (iii) that is no less than negative $2,500,000 calculated as of August 31, 2006 for the eight month period then ended, and (iv) that is no less than $0 calculated as of September 30, 2006 for the nine month period then ended. 10.3.2 Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio of at least 1.10 to 1.0 at the end of each month (starting on the month ended on September 30, 2006) with respect to the twelve-month period then ended. SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT 11.1 Events of Default. Each of the following shall be an “Event of Default” hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise: (a) Any Borrower fails to pay any Obligations when due (whether at stated maturity, on demand, upon acceleration or otherwise); (b) Any representation, warranty or other written statement of any Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given; (c) Any Borrower breaches or fail to perform any covenant contained in Section 7.2, 7.4, 7.6, 8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2, 10.2 or 10.3; (d) Any Obligor breaches or fails to perform any other covenant contained in any Loan Documents (not specified in subsections (a), (b) or (c)), and such breach or failure is not cured within 15 days after a Senior Officer of such Obligor has knowledge thereof or receives notice thereof
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from Agent, whichever is sooner; provided, however, that such notice and opportunity to cure shall not apply if the breach or failure to perform is not capable of being cured within such period or is a willful breach by an Obligor; (e) Any Guarantor repudiates, revokes or attempts to revoke its Guaranty; any Obligor denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Agent and Lenders); (f) Any breach or default of an Obligor occurs under any document, instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating to any Debt (other than the Obligations) in excess of $250,000, if the maturity of or any payment with respect to such Debt may be accelerated or demanded due to such breach; (g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $500,000 (net of any insurance coverage therefor acknowledged in writing by the insurer), unless a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal or otherwise; (h) Any loss, theft, damage or destruction occurs with respect to any Collateral if the amount not covered by insurance exceeds $250,000; (i) Any Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material part of its business; any Obligor suffers the loss, revocation or termination of any material license, permit, lease or agreement necessary to its business; there is a cessation of any material part of an Obligor’s business for a material period of time; any material Collateral or Property of an Obligor is taken or impaired through condemnation; any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) to or commences any liquidation, dissolution or winding up of its affairs; or any Obligor ceases to be Solvent; (j) Any Insolvency Proceeding is commenced by any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral); an Insolvency Proceeding is commenced against any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) and such Obligor or such Subsidiary consents to the institution of the proceeding against it, the petition commencing the proceeding is not timely controverted by such Obligor or such Subsidiary, such petition is not dismissed within 30 days after its filing, or an order for relief is entered in the proceeding; a trustee (including an interim trustee) is appointed to take possession of any substantial Property of or to operate any of the business of any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral); or any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) makes an offer of settlement, extension or composition to its unsecured creditors generally; (k) A Reportable Event occurs that constitutes grounds for termination by the Pension Benefit Guaranty Corporation of any Multiemployer Plan or appointment of a trustee for any Multiemployer Plan; any Multiemployer Plan is terminated or any such trustee is requested or appointed; any Obligor is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan resulting from any withdrawal therefrom; or any event similar to the foregoing occurs or exists with respect to a Foreign Plan;
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(l) Any Obligor or any of its Senior Officers is criminally indicted or convicted for (i) a felony committed in the conduct of such Obligor’s business, or (ii) any state or federal law (including the Controlled Substances Act, Money Laundering Control Act of 1986 and Illegal Exportation of War Materials Act) that could lead to forfeiture of any material Property or any Collateral; or (m) A Change of Control occurs, or any event occurs or condition exists that has a Material Adverse Effect. 11.2 Remedies upon Default. If an Event of Default described in Section 11.1(j) occurs with respect to any Borrower, then to the extent permitted by Applicable Law, all Obligations shall become automatically due and payable and all Revolver Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time: (a) declare any Obligations immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Borrowers to the fullest extent permitted by law; (b) terminate, reduce or condition any Revolver Commitment, or make any adjustment to the Borrowing Base; (c) require Obligors to Cash Collateralize LC Obligations, Bank Product Debt and other Obligations that are contingent or not yet due and payable, and, if Obligors fail promptly to deposit such Cash Collateral, Agent may (and shall upon the direction of Required Lenders) advance the required Cash Collateral as Revolver Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied); and (d) exercise any other rights or remedies afforded under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Borrowers to assemble Collateral, at Borrowers’ expense, and make it available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by a Borrower, Borrowers agree not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems advisable. Each Borrower agrees that ten days notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable. Agent shall have the right to conduct such sales on any Obligor’s premises, without charge, and such sales may be adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may set off the amount of such price against the Obligations. 11.3 License. Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of Borrowers, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral. Each Borrower’s rights and interests under Intellectual Property shall inure to Agent’s benefit.
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11.4 Setoff. Agent, Lenders and their Affiliates are each authorized by Borrowers at any time during an Event of Default, without notice to Borrowers or any other Person, to set off and to appropriate and apply any deposits (general or special), funds, claims, obligations, liabilities or other Debt at any time held or owing by Agent, any Lender or any such Affiliate to or for the account of any Obligor against any Obligations, whether or not demand for payment of such Obligation has been made, any Obligations have been declared due and payable, are then due, or are contingent or unmatured, or the Collateral or any guaranty or other security for the Obligations is adequate. 11.5 Remedies Cumulative; No Waiver. 11.5.1 Cumulative Rights. All covenants, conditions, provisions, warranties, guaranties, indemnities and other undertakings of Borrowers contained in the Loan Documents are cumulative and not in derogation or substitution of each other. In particular, the rights and remedies of Agent and Lenders are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and shall not be exclusive of any other rights or remedies that Agent and Lenders may have, whether under any agreement, by law, at equity or otherwise. 11.5.2 Waivers. The failure or delay of Agent or any Lender to require strict performance by Borrowers with any terms of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise, shall not operate as a waiver thereof nor as establishment of a course of dealing. All rights and remedies shall continue in full force and effect until Full Payment of all Obligations. No modification of any terms of any Loan Documents (including any waiver thereof) shall be effective, unless such modification is specifically provided in a writing directed to Borrowers and executed by Agent or the requisite Lenders, and such modification shall be applicable only to the matter specified. No waiver of any Default or Event of Default shall constitute a waiver of any other Default or Event of Default that may exist at such time, unless expressly stated. If Agent or any Lender accepts performance by any Obligor under any Loan Documents in a manner other than that specified therein, or during any Default or Event of Default, or if Agent or any Lender shall delay or exercise any right or remedy under any Loan Documents, such acceptance, delay or exercise shall not operate to waive any Default or Event of Default nor to preclude exercise of any other right or remedy. It is expressly acknowledged by Borrowers that any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date. SECTION 12. AGENT 12.1 Appointment, Authority and Duties of Agent. — 12.1.1 Appointment and Authority. Each Lender appoints and designates Bank of America as Agent hereunder. Agent may, and each Lender authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents, for Agent’s benefit and the Pro Rata benefit of Lenders. Each Lender agrees that any action taken by Agent or Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by Agent or Required Lenders of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized and binding upon all Lenders. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) exercise all rights and remedies given to Agent with respect to any Collateral under the Loan Documents, Applicable Law or otherwise. The duties of Agent shall be ministerial and administrative in nature, and Agent shall not have a fiduciary relationship with any Lender, Secured
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Party, Participant or other Person, by reason of any Loan Document or any transaction relating thereto. Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Lender or other Person for any error in judgment. 12.1.2 Duties. Agent shall not have any duties except those expressly set forth in the Loan Documents, nor be required to initiate or conduct any Enforcement Action except to the extent directed to do so by Required Lenders while an Event of Default exists. The conferral upon Agent of any right shall not imply a duty on Agent’s part to exercise such right, unless instructed to do so by Required Lenders in accordance with this Agreement. 12.1.3 Agent Professionals. Agent may perform its duties through agents and employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care. 12.1.4 Instructions of Required Lenders. The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joinder of any other party, unless required by Applicable Law. Agent may request instructions from Required Lenders with respect to any act (including the failure to act) in connection with any Loan Documents, and may seek assurances to its satisfaction from Lenders of their indemnification obligations under Section 12.6 against all Claims that could be incurred by Agent in connection with any act. Agent shall be entitled to refrain from any act until it has received such instructions or assurances, and Agent shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Lenders, and no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting in accordance with the instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of all Lenders shall be required in the circumstances described in Section 14.1.1, and in no event shall Required Lenders, without the prior written consent of each Lender, direct Agent to accelerate and demand payment of Loans held by one Lender without accelerating and demanding payment of all other Loans, nor to terminate the Revolver Commitments of one Lender without terminating the Revolver Commitments of all Lenders. In no event shall Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to personal liability. 12.2 Agreements Regarding Collateral and Field Examination Reports. 12.2.1 Lien Releases; Care of Collateral. Lenders authorize Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Obligations, (b) that is the subject of an Asset Disposition which Borrowers certify in writing to Agent is a Permitted Asset Disposition or a Lien which Borrowers certify is a Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without further inquiry), (c) that does not constitute a material part of the Collateral, or (d) with the written consent of all Lenders. Agent shall have no obligation whatsoever to any Lenders to assure that any Collateral exists or is owned by a Borrower, or is cared for, protected, insured or encumbered, nor to assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. 12.2.2 Possession of Collateral. Agent and Lenders appoint each other Lender as agent for the purpose of perfecting Liens (for the benefit of Secured Parties) in any Collateral that, under the UCC or other Applicable Law, can be perfected by possession. If any Lender obtains possession of any
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such Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with such Collateral in accordance with Agent’s instructions. 12.2.3 Reports. Agent shall promptly, upon receipt thereof, forward to each Lender copies of the results of any field audit or other examination or any appraisal prepared by or on behalf of Agent with respect to any Obligor or Collateral (“Report”). Each Lender agrees (a) that neither Bank of America nor Agent makes any representation or warranty as to the accuracy or completeness of any Report, and shall not be liable for any information contained in or omitted from any Report; (b) that the Reports are not intended to be comprehensive audits or examinations, and that Agent or any other Person performing any audit or examination will inspect only specific information regarding Obligations or the Collateral and will rely significantly upon Borrowers’ books and records as well as upon representations of Borrowers’ officers and employees; and (c) to keep all Reports confidential and strictly for such Lender’s internal use, and not to distribute any Report (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants) or use any Report in any manner other than administration of the Loans and other Obligations. Each Lender agrees to indemnify and hold harmless Agent and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Report, as well as any Claims arising in connection with any third parties that obtain all or any part of a Report through such Lender. 12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and upon the advice and statements of Agent Professionals. 12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or Event of Default unless it has received written notice from a Lender or Borrower specifying the occurrence and nature thereof. If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate its Obligations, or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against an Obligor where a deadline or limitation period is applicable that would, absent such action, bar enforcement of Obligations held by such Lender, including the filing of proofs of claim in an Insolvency Proceeding. 12.5 Ratable Sharing. If any Lender shall obtain any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its share of such Obligation, determined on a Pro Rata basis or in accordance with Section 5.5.1, as applicable, such Lender shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in the affected Obligation as are necessary to cause the purchasing Lender to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 5.5.1, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. 12.6 Indemnification of Agent Indemnitees. 12.6.1 Indemnification. EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE. If Agent is sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person for any alleged
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preference from an Obligor or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by Lenders to the extent of each Lender’s Pro Rata share. 12.6.2 Proceedings. Without limiting the generality of the foregoing, if at any time (whether prior to or after the Commitment Termination Date) any proceeding is brought against any Agent Indemnitees by an Obligor, or any Person claiming through an Obligor, to recover damages for any act taken or omitted by Agent in connection with any Obligations, Collateral, Loan Documents or matters relating thereto, or otherwise to obtain any other relief of any kind on account of any transaction relating to any Loan Documents, each Lender agrees to indemnify and hold harmless Agent Indemnitees with respect thereto and to pay to Agent Indemnitees such Lender’s Pro Rata share of any amount that any Agent Indemnitee is required to pay under any judgment or other order entered in such proceeding or by reason of any settlement, including all interest, costs and expenses (including attorneys’ fees) incurred in defending same. In Agent’s discretion, Agent may reserve for any such proceeding, and may satisfy any judgment, order or settlement, from proceeds of Collateral prior to making any distributions of Collateral proceeds to Lenders. 12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to Lenders for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor or Lender of any obligations under the Loan Documents. Agent does not make to Lenders any express or implied warranty, representation or guarantee with respect to any Obligations, Collateral, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements, information, representations or warranties contained in any Loan Documents; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectibility of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents. 12.8 Successor Agent and Co-Agents. 12.8.1 Resignation; Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required Lenders shall have the right to appoint a successor Agent which shall be (a) a Lender or an Affiliate of a Lender; or (b) a commercial bank that is organized under the laws of the United States or any state or district thereof, has a combined capital surplus of at least $200,000,000 and (provided no Default or Event of Default exists) is reasonably acceptable to Borrowers. If no successor agent is appointed prior to the effective date of the resignation of Agent, then Agent may appoint a successor agent from among Lenders. Upon acceptance by a successor Agent of an appointment to serve as Agent hereunder, such successor Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Agent without further act, and the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s resignation, the provisions of this Section 12 shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while Agent. Any successor by merger or acquisition of the stock or assets of Bank of America shall continue to be Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above.
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12.8.2 Separate Collateral Agent. It is the intent of the parties that there shall be no violation of any Applicable Law denying or restricting the right of financial institutions to transact business in any jurisdiction. If Agent believes that it may be limited in the exercise of any rights or remedies under the Loan Documents due to any Applicable Law, Agent may appoint an additional Person who is not so limited, as a separate collateral agent or co-collateral agent. If Agent so appoints a collateral agent or co-collateral agent, each right and remedy intended to be available to Agent under the Loan Documents shall also be vested in such separate agent. Every covenant and obligation necessary to the exercise thereof by such agent shall run to and be enforceable by it as well as Agent. Lenders shall execute and deliver such documents as Agent deems appropriate to vest any rights or remedies in such agent. If any collateral agent or co-collateral agent shall die or dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new agent. 12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations hereunder. Each Lender has made such inquiries concerning the Loan Documents, the Collateral and each Obligor as such Lender feels necessary. Each Lender further acknowledges and agrees that the other Lenders and Agent have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each Lender will, independently and without reliance upon the other Lenders or Agent, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Lender with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or any of Agent’s Affiliates. 12.10 Replacement of Certain Lenders. In the event that any Lender (a) fails to fund its Pro Rata share of any Loan or LC Obligation hereunder, and such failure is not cured within two Business Days, (b) defaults in performing any of its obligations under the Loan Documents, or (c) fails to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, then, in addition to any other rights and remedies that any Person may have, Agent may, by notice to such Lender within 120 days after such event, require such Lender to assign all of its rights and obligations under the Loan Documents to Eligible Assignee(s) specified by Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days after Agent’s notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute same. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents, including all principal, interest and fees through the date of assignment (but excluding any prepayment charge). 12.11 Remittance of Payments and Collections. 12.11.1 Remittances Generally. All payments by any Lender to Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by Agent and request for payment is made by Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on such day, and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Lender shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such Lender under the Loan Documents.
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12.11.2 Failure to Pay. If any Lender fails to pay any amount when due by it to Agent pursuant to the terms hereof, such amount shall bear interest from the due date until paid at the rate determined by Agent as customary in the banking industry for interbank compensation. In no event shall Borrowers be entitled to receive credit for any interest paid by a Lender to Agent. 12.11.3 Recovery of Payments. If Agent pays any amount to a Lender in the expectation that a related payment will be received by Agent from an Obligor and such related payment is not received, then Agent may recover such amount from each Lender that received it. If Agent determines at any time that an amount received under any Loan Document must be returned to an Obligor or paid to any other Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document, Agent shall not be required to distribute such amount to any Lender. If any amounts received and applied by Agent to any Obligations are later required to be returned by Agent pursuant to Applicable Law, Lenders shall pay to Agent, on demand, such Lender’s Pro Rata share of the amounts required to be returned. 12.12 Agent in its Individual Capacity. As a Lender, Bank of America shall have the same rights and remedies under the other Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as a Lender. Each of Bank of America and its Affiliates may accept deposits from, maintain deposits or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under indentures of, serve as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if Bank of America were any other bank, without any duty to account therefor (including any fees or other consideration received in connection therewith) to the other Lenders. In their individual capacity, Bank of America and its Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and each Lender agrees that Bank of America and its Affiliates shall be under no obligation to provide such information to Lenders, if acquired in such individual capacity and not as Agent hereunder. 12.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on the cover page of this Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of any type shall not have any right, power, responsibility or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event be deemed to have any fiduciary relationship with any other Lender. 12.14 No Third Party Beneficiaries. This Section 12 is an agreement solely among Lenders and Agent, and does not confer any rights or benefits upon Borrowers or any other Person. As between Borrowers and Agent, any action that Agent may take under any Loan Documents shall be conclusively presumed to have been authorized and directed by Lenders as herein provided. SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS 13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers, Agent and Lenders and their respective successors and assigns, except that (a) no Borrower shall have the right to assign its rights or delegate its obligations under any Loan Documents, and (b) any assignment by a Lender must be made in compliance with Section 13.3. Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender. 13.2 Participations. 13.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary course of its business and in accordance with Applicable Law, at any time sell to a financial institution (“Participant”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite
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any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for performance of such obligations, such Lender shall remain the holder of its Revolver Loans and Revolver Commitments for all purposes, all amounts payable by Borrowers shall be determined as if such Lender had not sold such participating interests, and Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or liability to any such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.8 unless Borrowers agree otherwise in writing. 13.2.2 Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of any Loan Documents other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Revolver Commitment in which such Participant has an interest, postpones the Commitment Termination Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Revolver Commitment, or releases any Borrower, Guarantor or substantial portion of the Collateral. 13.2.3 Benefit of Set-Off. Borrowers agree that each Participant shall have a right of set-off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if such Participant were a Lender. 13.3 Assignments. 13.3.1 Permitted Assignments. A Lender may assign to any Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $2,000,000 (unless otherwise agreed by Agent in its discretion) and integral multiples of $500,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Revolver Commitments retained by the transferor Lender be at least $4,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance. Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to (i) any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, or (ii) counterparties to swap agreements relating to any Loans; provided, however, that any payment by Borrowers to the assigning Lender in respect of any Obligations assigned as described in this sentence shall satisfy Borrowers’ obligations hereunder to the extent of such payment, and no such assignment shall release the assigning Lender from its obligations hereunder. 13.3.2 Effect; Effective Date. Upon delivery to Agent of an assignment notice in the form of Exhibit C and a processing fee of $5,000, such assignment shall become effective as specified in the notice, if it complies with this Section 13.3. From the effective date of such assignment, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder. Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make appropriate arrangements for issuance of replacement and/or new Notes, as appropriate.
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13.4 Tax Treatment. If any interest in a Loan Document is transferred to a Transferee that is organized under the laws of any jurisdiction other than the United States or any state or district thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 5.9. 13.5 Representation of Lenders. Each Lender represents and warrants to each Borrower, Agent and other Lenders that none of the consideration used by it to fund its Loans or to participate in any other transactions under this Agreement constitutes for any purpose of ERISA or Section 4975 of the Internal Revenue Code assets of any “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code and the interests of such Lender in and under the Loan Documents shall not constitute plan assets under ERISA. SECTION 14. MISCELLANEOUS 14.1 Consents, Amendments and Waivers. — 14.1.1 Amendment. No modification of any Loan Document, including any extension or amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of Agent, with the consent of Required Lenders, and each Obligor party to such Loan Document; provided, however, that (a) without the prior written consent of Agent, no modification shall be effective with respect to any provision in a Loan Document that relates to any rights, duties or discretion of Agent; (b) without the prior written consent of Issuing Bank, no modification shall be effective with respect to any LC Obligations or Section 2.2; (c) without the prior written consent of each affected Lender, no modification shall be effective that would (i) increase the Revolver Commitment of such Lender; or (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender; and (d) without the prior written consent of all Lenders (except a defaulting Lender as provided in Section 4.2), no modification shall be effective that would (i) extend the Revolver Termination Date; (ii) alter Section 5.5, 7.1 (except to add Collateral), or 14.1.1; (iii) amend the definitions of Borrowing Base (and the defined terms used in such definition), Pro Rata or Required Lenders; (iv) increase any advance rate, decrease the Availability Block, or increase total Revolver Commitments; (vi) release Collateral with a book value greater than $2,000,000 during any calendar year, except as currently contemplated by the Loan Documents; or (vii) release any Obligor from liability for any Obligations, if such Obligor is Solvent at the time of the release. 14.1.2 Limitations. The agreement of Borrowers shall not be necessary to the effectiveness of any modification of a Loan Document that deals solely with the rights and duties of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the parties to any agreement relating to a Bank Product shall be required for any modification of such agreement, and no Affiliate of a Lender that is party to a Bank Product agreement shall have any other right to consent to or participate in any manner in modification of any other Loan Document. The making of any Loans during the existence of a Default or Event of Default shall not be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of dealing. Any waiver or consent granted by Lenders hereunder shall be effective only if in writing, and then only in the specific instance and for the specific purpose for which it is given. 14.1.3 Payment for Consents. No Borrower will, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any
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modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent. 14.2 Indemnity. EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. In no event shall any party to a Loan Document have any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that is determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of such Indemnitee. 14.3 Notices and Communications. 14.3.1 Notice Address. Subject to Section 4.1.4, all notices, requests and other communications by or to a party hereto shall be in writing and shall be given to any Borrower, at Borrower Agent’s address shown on the signature pages hereof, and to any other Person at its address shown on the signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at the address shown on its Assignment and Acceptance), or at such other address as a party may hereafter specify by notice in accordance with this Section 14.3. Each such notice, request or other communication shall be effective only (a) if given by facsimile transmission, when transmitted to the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the applicable address; or (c) if given by personal delivery, when duly delivered to the notice address with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to Section 2.1.4, 2.2, 3.1.2, 4.1.1 or 5.2.3 shall be effective until actually received by the individual to whose attention at Agent such notice is required to be sent. Any written notice, request or other communication that is not sent in conformity with the foregoing provisions shall nevertheless be effective on the date actually received by the noticed party. Any notice received by Borrower Agent shall be deemed received by all Borrowers. 14.3.2 Electronic Communications; Voice Mail. Electronic mail and internet websites may be used only for routine communications, such as financial statements, Borrowing Base Certificates and other information required by Section 10.1.2, administrative matters, distribution of Loan Documents for execution, and matters permitted under Section 4.1.4. Agent and Lenders make no assurances as to the privacy and security of electronic communications. Electronic and voice mail may not be used as effective notice under the Loan Documents. 14.3.3 Non-Conforming Communications. Agent and Lenders may rely upon any notices purportedly given by or on behalf of any Borrower even if such notices were not made in a manner specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by the recipient, varied from a later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses arising from any telephonic communication purportedly given by or on behalf of a Borrower. 14.4 Performance of Borrowers’ Obligations. Agent may, in its discretion at any time and from time to time, at Borrowers’ expense, pay any amount or do any act required of a Borrower under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section shall be reimbursed to Agent by Borrowers, on demand, with interest from the date incurred to the date of payment thereof at the Default Rate applicable to Base Rate Revolver Loans. Any payment made or
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action taken by Agent under this Section shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents. 14.5 Credit Inquiries. Each Borrower hereby authorizes Agent and Lenders (but they shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Borrower or Subsidiary. 14.6 Severability. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect. 14.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise specifically provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control. 14.8 Counterparts; Facsimile Signatures. Any Loan Document may be executed in counterparts, each of which taken together shall constitute one instrument. Loan Documents may be executed and delivered by facsimile, and they shall have the same force and effect as manually signed originals. Agent may require confirmation by a manually-signed original, but failure to request or deliver same shall not limit the effectiveness of any facsimile signature. 14.9 Entire Agreement. Time is of the essence of the Loan Documents. The Loan Documents embody the entire understanding of the parties with respect to the subject matter thereof and supersede all prior understandings regarding the same subject matter. 14.10 Obligations of Lenders. The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Revolver Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled, to the extent not otherwise restricted hereunder, to protect and enforce its rights arising out of the Loan Documents. It shall not be necessary for Agent or any other Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Agent or Lenders pursuant to the Loan Documents shall be deemed to constitute Agent and Lenders to be a partnership, association, joint venture or any other kind of entity, nor to constitute control of any Borrower. Each Borrower acknowledges and agrees that in connection with all aspects of any transaction contemplated by the Loan Documents, Borrowers, Agent, Issuing Bank and Lenders have an arms-length business relationship that creates no fiduciary duty on the part of Agent, Issuing Bank or any Lender, and each Borrower, Agent, Issuing Bank and Lender expressly disclaims any fiduciary relationship. 14.11 Confidentiality. During the term of this Agreement and for 12 months thereafter, Agent and Lenders agree to take reasonable precautions to maintain the confidentiality of any information that Borrowers deliver to Agent and Lenders and identify as confidential at the time of delivery, except that Agent and any Lender may disclose such information (a) to their respective officers, directors, employees, Affiliates and agents, including legal counsel, auditors and other professional advisors; (b) to any party to the Loan Documents from time to time; (c) pursuant to the order of any court or administrative agency; (d) upon the request of any Governmental Authority exercising regulatory authority over Agent or such Lender; (e) which ceases to be confidential, other than by an act or omission of Agent or any Lender, or which becomes available to Agent or any Lender on a nonconfidential basis; (f) to the extent reasonably required in connection with any litigation relating to any Loan Documents or transactions contemplated
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thereby, or otherwise as required by Applicable Law; (g) to the extent reasonably required for the exercise of any rights or remedies under the Loan Documents; (h) to any actual or proposed party to a Bank Product or to any Transferee, as long as such Person agrees to be bound by the provisions of this Section; (i) to the National Association of Insurance Commissioners or any similar organization, or to any nationally recognized rating agency that requires access to information about a Lender’s portfolio in connection with ratings issued with respect to such Lender; (j) to any investor or potential investor in an Approved Fund that is a Lender or Transferee, but solely for use by such investor to evaluate an investment in such Approved Fund, or to any manager, servicer or other Person in connection with its administration of any such Approved Fund; or (k) with the consent of Borrowers. Notwithstanding the foregoing, Agent and Lenders may issue and disseminate to the public general information describing this credit facility, including the names and addresses of Borrowers and a general description of Borrowers’ businesses, and may use Borrowers’ names in advertising and other promotional materials. 14.12 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS). 14.13 Consent to Forum; Arbitration. 14.13.1 Forum. EACH BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER CALIFORNIA, IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any Obligor in any other court. Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any judgment or order obtained in any forum or jurisdiction. 14.13.2 Arbitration. Notwithstanding any other provision of this Agreement to the contrary, any controversy or claim among the parties relating in any way to any Obligations or Loan Documents, including any alleged tort, shall at the request of any party hereto be determined by binding arbitration conducted in accordance with the United States Arbitration Act (Title 9 U.S. Code). Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association (“AAA”), and the terms of this Section. In the event of any inconsistency, the terms of this Section shall control. If AAA is unwilling or unable to serve as the provider of arbitration or to enforce any provision of this Section, Agent may designate another arbitration organization with similar procedures to serve as the provider of arbitration. The arbitration proceedings shall be conducted in Los Angeles or Pasadena, California. The arbitration hearing shall commence within 90 days of the arbitration demand and close within 90 days thereafter. The arbitration award must be issued within 30 days after close of the hearing (subject to extension by the arbitrator for up to 60 days upon a showing of good cause), and shall include a concise written statement of reasons for the award. The arbitrator shall give effect to applicable statutes of limitation in determining any controversy or claim, and for these purposes, service on AAA under applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any dispute concerning this Section or whether a controversy or claim is arbitrable shall be determined by the arbitrator. The arbitrator shall have the power to award legal fees to the extent provided by this Agreement. Judgment upon an arbitration award may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuant to a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or
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claim to arbitration if any other party contests such action for judicial relief. No controversy or claim shall be submitted to arbitration without the consent of all parties if, at the time of the proposed submission, such controversy or claim relates to an obligation secured by Real Estate, but if all parties do not consent to submission of such a controversy or claim to arbitration, it shall be determined as provided in the next sentence. At the request of any party, a controversy or claim that is not submitted to arbitration as provided above shall be determined by judicial reference; and if such an election is made, the parties shall designate to the court a referee or referees selected under the auspices of the AAA in the same manner as arbitrators are selected in AAA sponsored proceedings and the presiding referee of the panel (or the referee if there is a single referee) shall be an active attorney or retired judge; and judgment upon the award rendered by such referee or referees shall be entered in the court in which proceeding was commenced. None of the foregoing provisions of this Section shall limit the right of Agent or Lenders to exercise self-help remedies, such as setoff, foreclosure or sale of any Collateral or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after or during any arbitration proceeding. The exercise of a remedy does not waive the right of any party to resort to arbitration or reference. At Agent’s option, foreclosure under a Mortgage may be accomplished either by exercise of power of sale thereunder or by judicial foreclosure. 14.14 Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in any proceeding, claim or counterclaim of any kind relating in any way to any Loan Documents, Obligations or Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by Agent on which a Borrower may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any bond or security that might be required by a court prior to allowing Agent to exercise any rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against Agent or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and (g) notice of acceptance hereof. Each Borrower acknowledges that the foregoing waivers are a material inducement to Agent and Lenders entering into this Agreement and that Agent and Lenders are relying upon the foregoing in their dealings with Borrowers. Each Borrower has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 14.15 Patriot Act Notice. Agent and Lenders hereby notify Borrowers that pursuant to the requirements of the Patriot Act, Agent and Lenders are required to obtain, verify and record information that identifies each Borrower, including its legal name, address, tax ID number and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also require information regarding each personal guarantor, if any, and may require information regarding Borrowers’ management and owners, such as legal name, address, social security number and date of birth. [Remainder of page intentionally left blank; signatures begin on following page]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above.
BORROWERS: EMAK WORLDWIDE, INC. By: /s/ Teresa L. Tormey Title: Chief Administrative Officer and General Counsel Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EQUITY MARKETING, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 SCI PROMOTION, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346
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POP ROCKET, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 LOGISTIX, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 UPSHOT, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EMAK WORLDWIDE SERVICE CORP. By: /s/ Teresa L. Tormey Title: Chief Administrative Officer and General Counsel Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346
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CORINTHIAN MARKETING, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 JOHNSON GROSSFIELD, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EQUITY MARKETING HONG KONG, LTD. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346
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AGENT AND LENDERS: BANK OF AMERICA, N.A., as Agent and Lender By: /s/ David T. Knoblauch Title: Senior Vice President Address: 55 South Lake Avenue Pasadena, California 91101-2627 Attention: Portfolio Manager Telecopy: (626) 584-4600 | [
"Exhibit 10.9 EMAK WORLDWIDE, INC., EQUITY MARKETING, INC., SCI PROMOTION, INC., POP ROCKET, INC. LOGISTIX, INC., UPSHOT, INC., EMAK WORLDWIDE SERVICE CORP., CORINTHIAN MARKETING, INC., JOHNSON GROSSFIELD, INC., and EQUITY MARKETING HONG KONG, LTD., as Borrowers LOAN AND SECURITY AGREEMENT Dated as of March 29, 2006 $25,000,000 CERTAIN FINANCIAL INSTITUTIONS, as Lenders and BANK OF AMERICA, N.A., as Agent -------------------------------------------------------------------------------- TABLE OF CONTENTS Page SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION 1 1.1 Definitions 1 1.2 Accounting Terms 26 1.3 Certain Matters of Construction 26 SECTION 2. CREDIT FACILITIES 27 2.1 Revolver Commitment 27 2.2 Letter of Credit Facility 28 SECTION 3. INTEREST, FEES AND CHARGES 30 3.1 Interest 30 3.2 Fees 31 3.3 Computation of Interest, Fees, Yield Protection 32 3.4 Reimbursement Obligations 32 3.5 Illegality 33 3.6 Increased Costs 33 3.7 Capital Adequacy 34 3.8 Mitigation 34 3.9 Funding Losses 34 3.10 Maximum Interest 34 SECTION 4.",
"LOAN ADMINISTRATION 35 4.1 Manner of Borrowing and Funding Revolver Loans 35 4.2 Defaulting Lender 36 4.3 Number and Amount of LIBOR Loans; Determination of Rate 36 4.4 Borrower Agent 36 4.5 One Obligation 37 4.6 Effect of Termination 37 SECTION 5. PAYMENTS 37 5.1 General Payment Provisions 37 5.2 Repayment of Revolver Loans 37 5.3 Payment of Other Obligations 38 5.4 Marshaling; Payments Set Aside 38 5.5 Post-Default Allocation of Payments 38 5.6 Application of Payments 39 -i- -------------------------------------------------------------------------------- TABLE OF CONTENTS (continued) Page 5.7 Loan Account; Account Stated 39 5.8 Taxes 39 5.9 Withholding Tax Exemption 39 5.10 Nature and Extent of Each Borrower’s Liability 40 SECTION 6. CONDITIONS PRECEDENT 43 6.1 Conditions Precedent to Initial Loans 43 6.2 Conditions Precedent to All Credit Extensions 46 6.3 Limited Waiver of Conditions Precedent 47 SECTION 7. COLLATERAL 47 7.1 Grant of Security Interest 47 7.2 Lien on Deposit Accounts; Cash Collateral 48 7.3 Real Estate Collateral 48 7.4 Other Collateral 48 7.5 No Assumption of Liability 49 7.6 Further Assurances 49 7.7 Foreign Subsidiary Stock 49 SECTION 8.",
"COLLATERAL ADMINISTRATION 49 8.1 Borrowing Base Certificates 49 8.2 Administration of Accounts 49 8.3 Administration of Inventory 50 8.4 Administration of Equipment 51 8.5 Administration of Deposit Accounts; Securities Accounts 51 8.6 General Provisions 51 8.7 Power of Attorney 52 SECTION 9. REPRESENTATIONS AND WARRANTIES 53 9.1 General Representations and Warranties 53 9.2 Matters Relating to Collateral 58 9.3 Complete Disclosure 59 SECTION 10. COVENANTS AND CONTINUING AGREEMENTS 59 10.1 Affirmative Covenants 59 10.2 Negative Covenants 65 10.3 Financial Covenants 70 -ii- -------------------------------------------------------------------------------- TABLE OF CONTENTS (continued) Page SECTION 11.",
"EVENTS OF DEFAULT; REMEDIES ON DEFAULT 70 11.1 Events of Default 70 11.2 Remedies upon Default 72 11.3 License 72 11.4 Setoff 73 11.5 Remedies Cumulative; No Waiver 73 SECTION 12. AGENT 73 12.1 Appointment, Authority and Duties of Agent 73 12.2 Agreements Regarding Collateral and Field Examination Reports 74 12.3 Reliance By Agent 75 12.4 Action Upon Default 75 12.5 Ratable Sharing 75 12.6 Indemnification of Agent Indemnitees 75 12.7 Limitation on Responsibilities of Agent 76 12.8 Successor Agent and Co-Agents 76 12.9 Due Diligence and Non-Reliance 77 12.10 Replacement of Certain Lenders 77 12.11 Remittance of Payments and Collections 77 12.12 Agent in its Individual Capacity 78 12.13 Agent Titles 78 12.14 No Third Party Beneficiaries 78 SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS 78 13.1 Successors and Assigns 78 13.2 Participations 78 13.3 Assignments 79 13.4 Tax Treatment 80 13.5 Representation of Lenders 80 SECTION 14.",
"MISCELLANEOUS 80 14.1 Consents, Amendments and Waivers 80 14.2 Indemnity 81 14.3 Notices and Communications 81 14.4 Performance of Borrowers’ Obligations 81 -iii- -------------------------------------------------------------------------------- TABLE OF CONTENTS (continued) Page 14.5 Credit Inquiries 82 14.6 Severability 82 14.7 Cumulative Effect; Conflict of Terms 82 14.8 Counterparts; Facsimile Signatures 82 14.9 Entire Agreement 82 14.10 Obligations of Lenders 82 14.11 Confidentiality 82 14.12 GOVERNING LAW 83 14.13 Consent to Forum; Arbitration 83 14.14 Waivers by Borrowers 84 14.15 Patriot Act Notice 84 -iv- -------------------------------------------------------------------------------- LIST OF EXHIBITS AND SCHEDULES Exhibit A Revolver Note Exhibit B Assignment and Acceptance Exhibit C Assignment Notice Exhibit D Collateral Access Agreement Exhibit E Domestic Pledge Agreement Exhibit F Additional Borrower Counterpart Exhibit G Non-Offset Letter Exhibit H Imported Goods Agreement Schedule 1.1A Revolver Commitments of Lenders Schedule 1.1B License Agreements Schedule 1.1C EBITDA Schedule 1.1D Specified Account Debtors Schedule 2.2.1 Existing Letters of Credit Schedule 7.3 Real Estate Schedule 8.5 Deposit Accounts and Securities Accounts Schedule 8.6.1 Business Locations Schedule 9.1.4 Names and Capital Structure Schedule 9.1.5 Former Names and Companies Schedule 9.1.8 Draft Financial Statements Schedule 9.1.12 Patents, Trademarks, Copyrights and Licenses Schedule 9.1.15 Environmental Matters Schedule 9.1.17 Restrictive Agreements Schedule 9.1.18 Litigation Schedule 9.1.20 Pension Plans Schedule 9.1.22 Labor Contracts Schedule 9.2.3 Third-Party Filings Schedule 10.1.2 Specified Liens Schedule 10.2.1 Existing Debt Schedule 10.2.2 Existing Liens Schedule 10.2.17 Existing Affiliate Transactions -v- -------------------------------------------------------------------------------- LOAN AND SECURITY AGREEMENT THIS LOAN AND SECURITY AGREEMENT is dated as of March 29, 2006 by and among EMAK WORLDWIDE, INC., a Delaware corporation (“EMAK”), EQUITY MARKETING, INC., a Delaware corporation (“EMI”), SCI PROMOTION, INC., a Delaware corporation (“SCI”), POP ROCKET, INC., a Delaware corporation (“Pop Rocket”), LOGISTIX, INC., a Delaware corporation (“Logistix”), UPSHOT, INC., a Delaware corporation (“Upshot”), EMAK WORLDWIDE SERVICE CORP., a Delaware corporation (“EMAK Worldwide”), CORINTHIAN MARKETING, INC., a Delaware corporation (“Corinthian”), JOHNSON GROSSFIELD, INC., a Delaware corporation (“Johnson”) and EQUITY MARKETING HONG KONG, LTD., a Delaware corporation (“Equity Marketing” and together with EMAK, EMI, SCI, Pop Rocket, Upshot, EMAK Worldwide, Corinthian, Johnson and future Subsidiaries executing this Agreement in accordance with Section 10.1.9, collectively referred to herein as “Borrowers”, and individually as a “Borrower”), the financial institutions party to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking association (“Bank of America”), as agent for Lenders (“Agent”).",
"R E C I T A L S: Borrowers have requested that Lenders make available a credit facility, to be used by Borrowers to finance their mutual and collective business enterprise. Lenders are willing to provide such credit facility on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows: SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION 1.1 Definitions. As used herein, the following terms have the meanings set forth below: AAA — as defined in Section 14.13. Account — as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered. Account Debtor — a Person who is obligated under an Account, Chattel Paper or General Intangible. Accounts Formula Amount — 85% of the Value of Eligible Accounts; provided, however, that such percentage shall be reduced by 1.0% for each 0.5 percentage point that the Dilution Percent exceeds 7.5%. Acquisition — any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all or any significant portion of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary (other than the creation of a newly formed Subsidiary of a Obligor), or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary); provided that a Borrower or a wholly-owned Subsidiary that becomes a Borrower is the surviving entity.",
"Adjusted LIBOR — for any Interest Period, with respect to LIBOR Loans, the per annum rate of interest (rounded upward, if necessary, to the nearest 1/8th of 1%) appearing on Telerate Page 3750, or if such page is unavailable, the Reuters Screen LIBO Page (or any successor page of either, as applicable), -------------------------------------------------------------------------------- as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if the Reuters Screen LIBO Page is used and more than one rate is shown on such page, the applicable rate shall be the arithmetic mean thereof. If for any reason none of the foregoing rates is available, the Offshore Base Rate shall be the rate per annum determined by Agent as the rate of interest at which Dollar deposits in the approximate amount of the applicable LIBOR Loan would be offered to major banks in the offshore Dollar market at or about 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If the Board of Governors shall impose a Reserve Percentage with respect to LIBOR deposits, then Adjusted LIBOR shall equal the amount determined above, divided by 1 minus the Reserve Percentage.",
"Affiliate — with respect to any Person, another Person (a) who directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such first Person; (b) who beneficially owns 10% or more of the voting securities or of Equity Interests of such first Person; (c) at least 10% of whose voting securities or of Equity Interests is beneficially owned, directly or indirectly, by such first Person; or (d) who is an officer, director, partner or managing member of such first Person.",
"“Control” means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person, whether through ownership of Equity Interests, by contract or otherwise. Agency of Record Agreement — any agency of record agreements between a Borrower and its customer providing for the performance of services by such Borrower in exchange for a fixed fee payable over time. Agent Indemnitees — Agent and its officers, directors, employees, Affiliates, agents and attorneys. Agent Professionals — attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent. Agreement — this Loan and Security Agreement, as amended, restated, extended, supplemented or otherwise modified in writing from time to time. Allocable Amount — as defined in Section 5.10.6. Anti-Terrorism Laws — any laws relating to terrorism or money laundering, including the Patriot Act. Applicable Law — all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.",
"Applicable Margin — with respect to any Base Rate Revolver Loans is 0.75% and with respect to any LIBOR Revolver Loans is 2.50%; provided, that during the Inventory Borrowing Period, to the extent that any portion of the Revolver Loans outstanding on any day would have exceeded the Borrowing Base as of such day but for the availability of the Inventory Formula Amount (such amount of the Revolver Loans being referred to herein as the “Inventory Borrowing Portion”), the Applicable Margin for such Revolver Loans that relate to the Inventory Borrowing Portion is (a) with respect to such Revolver Loans that are Base Rate Revolver Loans, 1.25% and (b) with respect to such Revolver Loans that are LIBOR Revolver Loans, 3.00% (it being understood and agreed that (i) if both Base Rate Revolver Loans and LIBOR Revolver Loans are outstanding on any day during the Inventory Borrowing Period, subject to clause (ii) below, any Base Rate Revolver Loans shall be deemed to relate first to the Inventory Borrowing Portion as of such day before any LIBOR Revolver Loans are deemed to relate to any part of -2- -------------------------------------------------------------------------------- such Inventory Borrowing Portion and (ii) if after giving effect to the foregoing clause (i) all or any portion of a LIBOR Loan is deemed to relate to all or any part of the Inventory Borrowing Portion, then the higher Applicable Margin (i.e., 3.00% instead of 2.50%) shall continue to apply to such LIBOR Loan (or the applicable part thereof as of such day) until the end of the applicable Interest Period whether or not the Inventory Borrowing Period terminates prior to the end of such Interest Period and whether or not such LIBOR Loan (or any part thereof) is no longer deemed to relate to all or any part of the Inventory Borrowing Portion (e.g., as a result of an increase in the Accounts Formula Amount or a decrease in the Inventory Borrowing Portion during the applicable Interest Period)); provided, that nothing in this definition shall authorize Borrowers to request a LIBOR Revolver Loan with respect to the Inventory Borrowing Portion.",
"Approved Fund — any Person (other than a natural person) that is engaged in making, holding or investing in extensions of credit in its ordinary course of business and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either. Asset Disposition — a sale, lease, license, consignment, transfer or other disposition of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback transaction or synthetic lease. Assignment and Acceptance — an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit B. Attorney Costs — all reasonable fees and disbursements of any law firm or other external counsel and the reasonable allocated cost of internal legal services and all disbursements of internal counsel.",
"Availability — determined as of any date, the amount that Borrowers are entitled to borrow as Revolver Loans, being the Borrowing Base minus the principal balance of all Revolver Loans.",
"Availability Block — (i) in the event that each of BK, RSI and their respective Affiliates have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before June 30, 2006, the Availability Block from the Closing Date and thereafter shall be $0, (ii) in the event that RSI and its Affiliates (but not all of BK and its Affiliates) have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before June 30, 2006, the Availability Block from the Closing Date until June 30, 2006 shall be $0 and the Availability Block thereafter shall be the lesser of (a) $500,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK and its Affiliates from time to time, and (iii) otherwise, the Availability Block from the Closing Date until June 30, 2006 shall be $0 and the Availability Block thereafter shall be the lesser of (a) $1,000,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK, RSI and their respective Affiliates from time to time; provided, however, that if before June 30, 2006, an Inventory Borrowing Period occurs, (1) in the event that each of BK, RSI and their respective Affiliates have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent on or before the first day of such Inventory Borrowing Period, the Availability Block from the Closing Date and thereafter shall be $0, (2) in the event that RSI and its Affiliates (but not all of BK and its Affiliates) have delivered a Non-Offset Letter with respect to the BK Agreements to which they are a party in form and substance satisfactory to Agent before the first day of such Inventory Borrowing Period, the Availability Block from the Closing Date until the day preceding the first day of such Inventory Borrowing Period shall be $0 and the Availability Block thereafter shall be the lesser of (a) $500,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK and its Affiliates from time to time, and (3) otherwise, the Availability Block from the Closing Date until the day preceding the first day of such Inventory Borrowing Period shall be $0 and the Availability Block thereafter shall be the lesser of (a) -3- -------------------------------------------------------------------------------- $1,000,000 and (b) the increase in Availability that would result from the aggregate amount of Eligible Accounts owing from BK, RSI and their respective Affiliates from time to time.",
"Availability Reserve — the sum (without duplication) of (a) the Inventory Reserve; (b) the Rent and Charges Reserve; (c) the LC Reserve; (d) the Bank Product Reserve; (e) all accrued Royalties with respect to any Eligible Inventory and/or any Eligible Account that is included in the Borrowing Base, whether or not then due and payable by a Borrower; (f) the aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (g) the Availability Block; and (h) such additional reserves and in such amounts as Agent may determine in its sole discretion including without limitation those based upon (1) its consideration of any factor that it believes could result in the loss of any material customer of any Borrower, a disruption in the relationship between any Borrower or any of its customers or an adverse change in the business prospects or business mix of any Borrower, (2) the termination of, an amendment adverse to any Borrower or Lender, or the failure to renew, any agreement of any Borrower (including without limitation any Related Document), or (3) Agent’s consideration of any factor that it believes creates or could result in a Default or an Event of Default. Bank of America — Bank of America, N.A., a national banking association, and its successors and assigns.",
"Bank of America Indemnitees — Bank of America and its officers, directors, employees, Affiliates, agents and attorneys. Bank Product — any of the following products, services or facilities extended to any Borrower or Subsidiary by Bank of America or any of its Affiliates: (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Borrower or Subsidiary, other than Letters of Credit. Bank Product Debt — Debt and other obligations of an Obligor relating to Bank Products. Bank Product Reserve — the aggregate amount of reserves established by Agent from time to time in its discretion in respect of Bank Product Debt.",
"Bankruptcy Code — Title 11 of the United States Code. Base Rate — the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is a reference rate only and Bank of America may make loans or other extensions of credit at, above or below it. Any change in the prime rate announced by Bank of America shall take effect at the opening of business on the effective date specified in the public announcement of the change. Base Rate Revolver Loan — a Revolver Loan that bears interest based on the Base Rate. BK — Burger King Corporation, a Florida corporation. BK Agreements — the BK Services Agreements, the BK Supply Agreements, the RSI Supply Agreement and any other agreements entered into from time to time between BK, RSI or any of their respective Affiliates, on the one hand, and any Borrower or any of their respective Subsidiaries, on the other hand, and any material purchase orders and similar agreements or arrangements entered into from time to time with respect to any of the foregoing.",
"BK Group — has meaning assigned to such term in the definition of Eligible Accounts. BK Services Agreements- (i) that certain Services Agreement dated as of October 1, 2002 between Equity Marketing, Inc. and BK, (ii) that certain Services Agreement effective as of July 1, 2004 -4- -------------------------------------------------------------------------------- between EMAK and BK, and (iii) any other services agreements entered into from time to time between BK or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (to the extent in effect on the Closing Date) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21. BK Supply Agreements — (i) that certain Terms and Conditions of Supply Agreement dated as of October 1, 2002 between BK and Equity Marketing, Inc., (ii) that certain International Master Premium Supply Agreement dated as of October 1, 2002 between BK and Equity Marketing, Inc., and (iii) any other supply agreements entered into from time to time between BK or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (in the case of clauses (i) and (ii)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21.",
"Board of Governors — the Board of Governors of the Federal Reserve System. Borrowed Money — with respect to any Obligor, without duplication, its (a) Debt that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Debt of the foregoing types owing by another Person.",
"Borrower Agent — as defined in Section 4.4. Borrowers — has the meaning set forth in the introductory paragraph hereto. Borrowing — a group of Revolver Loans of one Type that are made on the same day or are converted into Revolver Loans of one Type on the same day. Borrowing Base — on any date of determination, an amount equal to the lesser of (a) the aggregate amount of Revolver Commitments, minus the LC Reserve, minus the Availability Block; or (b) the sum of the Accounts Formula Amount, plus, solely during the Inventory Borrowing Period, the Inventory Formula Amount, minus the Availability Reserve. Borrowing Base Certificate — a certificate, in form and substance satisfactory to Agent, by which Borrowers certify calculation of the Borrowing Base. Business Day — any day (a) excluding Saturday, Sunday and any other day on which banks are permitted to be closed under the laws of the States of North Carolina and California; and (b) when used with reference to a LIBOR Loan, also excluding any day on which banks do not conduct dealings in Dollar deposits on the London interbank market.",
"Capital Adequacy Regulation — any law, rule, regulation, guideline, request or directive of any central bank or other Governmental Authority, whether or not having the force of law, regarding capital adequacy of a bank or any Person controlling a bank. Capital Expenditures — all liabilities incurred, expenditures made or payments due (whether or not made) by a Borrower or Subsidiary for the acquisition of any fixed assets, or any improvements, replacements, substitutions or additions thereto with a useful life of more than one year, including the principal portion of Capital Leases. Without limiting the generality of the foregoing, Capital Expenditures shall include, for any period, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized on the consolidated balance sheet of Borrowers and Subsidiaries) by Borrowers and Subsidiaries during that -5- -------------------------------------------------------------------------------- period that, in conformity with GAAP, are included in “additions to property, plant or equipment” or comparable items reflected in the consolidated statement of cash flows of Borrowers and Subsidiaries and shall include the aggregate of all expenditures by Borrowers and Subsidiaries during that period to acquire (by purchase or otherwise) the business, property or fixed assets of any Person, or the stock or other evidence of beneficial ownership of any Person that, as a result of such acquisition, becomes a Subsidiary of a Borrower.",
"Notwithstanding the foregoing, to the extent that any Borrower receives a landlord reimbursement on or before June 30, 2006 with respect to certain Capital Expenditures in the form of tenant improvements made by such Borrower in January of 2006, up to $300,000 of such reimbursement received by such Borrower on or before June 30, 2006 shall reduce, dollar for dollar, the amount of Capital Expenditures in the form of tenant improvements made by such Borrower in January of 2006. Capital Lease — any lease that is required to be capitalized for financial reporting purposes in accordance with GAAP. Cash Collateral — cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Obligations. Cash Collateral Account — a demand deposit, money market or other account established by Agent at such financial institution as Agent may select in its discretion, which account shall be subject to Agent’s Liens for the benefit of Secured Parties. Cash Collateralize — the delivery of cash to Agent, as security for the payment of Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC Obligations, and (b) with respect to any inchoate or contingent Obligations (including Obligations arising under Bank Products), Agent’s good faith estimate of the amount due or to become due, including all fees and other amounts relating to such Obligations. “Cash Collateralization” has a correlative meaning.",
"Cash Equivalents — (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the United States government, maturing within 12 months of the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by a commercial bank organized under the laws of the United States or any state or district thereof, rated A-1 (or better) by S&P or P-1 (or better) by Moody’s at the time of acquisition, and (unless issued by a Lender) not subject to offset rights; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank meeting the qualifications specified in clause (b); (d) commercial paper rated A-1 (or better) by S&P or P-1 (or better) by Moody’s, and maturing within nine months of the date of acquisition; and (e) shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Moody’s or S&P. Cash Management Services — any services provided from time to time by Bank of America or any of its Affiliates to any Borrower or Subsidiary in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automatic clearinghouse, controlled disbursement, depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft and/or wire transfer services.",
"CERCLA — the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.). -6- -------------------------------------------------------------------------------- Certificate of Designation — certain Certificate of Designation of Series AA Preferred Stock of EMAK filed with the Secretary of State of the State of Delaware on December 31, 2004 (and amended on September 2, 2005) pursuant to Section 151 of the General Corporation Law of the State of Delaware.",
"Change of Control — an event or series of events by which: (a) EMAK ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in all Borrowers (other than EMAK), except for the consolidation or merger of one Borrower with another Borrower to the extent permitted under Section 10.2.9; (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and other than Crown so long as any such “person” or “group” does not become the “beneficial owner”, directly or indirectly, of 40% or more of the Equity Interests of EMAK entitled to vote for members of the board of directors of EMAK on a fully diluted basis) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 20% or more of the Equity Interests of EMAK entitled to vote for members of the board of directors or equivalent governing body of EMAK on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); (c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of EMAK cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); (d) any Person or two or more Persons acting in concert (other than Crown) shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of EMAK, or control over the Equity Interests of EMAK entitled to vote for members of the board of directors or equivalent governing body of EMAK on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 20% or more of the combined voting power of such securities; (e) all or substantially all of a Borrower’s assets are sold or transferred, other than sale or transfer to another Borrower; or -7- -------------------------------------------------------------------------------- (f) a “Change of Control” (whether as defined in the Certificate of Designation as in effect on the date hereof or as defined in the Certificate of Designation as amended after the date hereof).",
"Chattel Paper — as defined in the UCC. Claims — all liabilities, obligations, losses, damages, penalties, judgments, proceedings, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in any way relating to (a) any Loan Documents or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto. Closing Date — as defined in Section 6.1. Collateral — all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations. Collateral Access Agreement — any landlord waiver, mortgagee waiver, bailee letter or any similar acknowledgement agreement of any landlord or mortgagee in respect of any Real Estate or other location where any Inventory is located or any warehouseman or processor in possession of Inventory (other than immaterial Inventory) (which locations, as of the date hereof, are set forth on Schedule 7.3), substantially in the form of Exhibit D annexed hereto, with such changes thereto as may be agreed to by Agent in the reasonable exercise of its discretion.",
"Commercial Tort Claim — as defined in the UCC. Commitment Fee Rate — as defined in Section 3.2.1. Commitment Termination Date — the earliest to occur of (a) the Revolver Termination Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2. Commitment Utilization Percentage — for any day, the ratio of (a) the sum of (i) the principal amount of the Revolver Loans outstanding on such day plus (ii) the stated amount of Letters of Credit outstanding on such day to (b) the aggregate amount of Revolver Commitments for such day, expressed as a percentage.",
"Common Stock — the common stock, $.001 par value, of EMAK. Common Warrants — those certain warrants dated March 19, 2004 issued to Crown pursuant to which Crown has the right to purchase 357,000 shares of Common Stock at $16.00 per share expiring March 29, 2010, 79,333 shares of Common Stock at $18.00 per share expiring March 29, 2010, 393,000 shares of Common Stock at $16.00 per share expiring June 20, 2010 and 87,333 shares of Common Stock at $18.00 per share expiring June 20, 2010. Compliance Certificate — a certificate, in form and substance satisfactory to Agent, by which Borrowers certify compliance with Sections 10.2.3 and 10.3. -8- -------------------------------------------------------------------------------- Conforming Letter of Credit — (a) an irrevocable letter of credit satisfactory to Agent (as to form, substance and issuer) that is assigned to and directory drawable by Agent (unless such assignment and direct drawability is waived by Agent), or (b) an irrevocable letter of credit satisfactory to Agent (as to form, substance and issuer) with respect to which Agent has a perfected first priority Lien in the letter of credit rights thereunder.",
"Contingent Obligation — any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof.",
"The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto. Contractual Obligation — as to any Person, any provision of any security issued by such Person or of any agreement, instrument, mortgage or undertaking to which such Person is a party or by which it or any of its property is bound or to which it or any of its properties is subject. Corinthian — Corinthian Marketing, Inc., a Delaware corporation. Crown — Crown EMAK Partners, LLC, a Delaware limited liability company formerly known as Crown Acquisition Partners, LLC. CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.).",
"Debt — as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. Default — an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default. Default Rate — for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.",
"Deposit Account — as defined in the UCC. Deposit Account Control Agreements — the Deposit Account control agreements to be executed by each institution maintaining a Deposit Account for a Borrower, in favor of Agent, for the benefit of Secured Parties, as security for the Obligations. Dilution Percent — the percent, determined on a trailing twelve month basis as of the end of Borrowers’ most recent month, equal to (a) credit memos issued for bad debt write-downs or write-offs, -9- -------------------------------------------------------------------------------- discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts, divided by (b) gross sales.",
"Disney — The Walt Disney Company and its Affiliates. Document — as defined in the UCC. Dollars — lawful money of the United States. Domestic Pledge Agreement — the pledge agreement substantially in the form of Exhibit E, executed and delivered by Borrowers to Agent on the Closing Date, as amended, supplemented or otherwise modified from time to time. Domestic Subsidiary — a Subsidiary that is not a Foreign Subsidiary. Dominion Account — a special account established by Borrowers at Bank of America or another bank acceptable to Agent, over which Agent has exclusive control for withdrawal purposes, which account shall initially be a Bank of America account, account number 14591-38332 (which account may only be changed with the prior written consent of Agent). Draft Financial Statements — the draft consolidated financial statements of EMAK for Fiscal Year 2005 attached hereto as Schedule 9.1.8. EBITDA — for any period, determined on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries), the sum, without duplication, of the amounts for such period of (i) net income, (ii) interest expense, (iii) provision for income taxes, (iv) depreciation and amortization expense, (v) other non-cash items consisting of stock-based compensation for which no future cash disbursements will be made, and (vi) to the extent not included in any of the foregoing, (a) to the extent such period includes any of the months in Fiscal Year 2005, the non-recurring restructuring charges set forth in Schedule 1.1C hereto for such months, and (b) to the extent such period includes any of the months in Fiscal Year 2006, the lesser of (I) the non-recurring restructuring charges set forth in Schedule 1.1C hereto for such months and (II) the actual amount of such non-recurring restructuring charges that fall within such items for such months, but only, in the case of clauses (ii)-(vi), to the extent deducted in the calculation of net income, less (i) gains arising from the sale of capital assets or from the write-up of assets, (ii) extraordinary gains, and (iii) non-cash items added in the calculation of net income.",
"Eligible Account — an Account owing to a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its discretion, to be an Eligible Account.",
"Without limiting the foregoing, no Account shall be an Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days (or, (i) solely if the Account Debtor is a member of the BK Group (as defined below), 60 days and (ii) solely if the Account Debtor is any of Target, Sunoco, Disney, P&G, Kellogg or MBC, 120 days) after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor and its Affiliates are not Eligible Accounts under the foregoing clause; (c) when aggregated with other Accounts owing by such Account Debtor and its Affiliates or any designated group of Account Debtors and their Affiliates, as the case may be, it exceeds 10% of the aggregate Eligible Accounts (or such higher percentage (the “Applicable Concentration Percentage”) as Agent may designate for such Account Debtor and its Affiliates or for any group of Account Debtors and their Affiliates from time to time), provided that (i) the Applicable Concentration Percentage for all of Supply Chain, RSI and BK and their Affiliates, collectively as a group (such group being referred to herein as the “BK Group”), shall be 50%, provided further that the aggregate Value of such Accounts of Account Debtors in the BK Group that remain unpaid between 31 and 60 days after the original invoice date shall not exceed 15% of all Eligible Accounts of Account Debtors in the BK Group included hereunder pursuant to this clause (c)(i) except to -10- -------------------------------------------------------------------------------- the extent such Accounts originally arose on extended terms with the prior written approval of Agent in its sole discretion, (ii) the Applicable Concentration Percentage for each of Disney, P&G, Kellogg and MBC is 25%, and (iii) the Applicable Concentration Percentage for MidAmerica Overseas is 15%; (d) it does not conform with a covenant or representation herein; (e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset (including without limitation a potential offset which will permit such Account Debtor to make offset payments to third parties), counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; (g) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada except to the extent the Account is supported by a Conforming Letter of Credit or the Account Debtor is an Affiliate of a company headquartered in the United States and specified on Schedule 1.1D; (h) it is owing by a Government Authority, unless the Account Debtor is the United States or any department, agency or instrumentality thereof and the Account has been assigned to Agent in compliance with the Assignment of Claims Act; (i) it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any other Lien; (j) the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis; (m) it arises from a sale to an Affiliate, or from a sale on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis; (n) it represents a progress billing or retainage (other than that portion of such Accounts under an Agency of Record Agreement with respect to which a Borrower has recognized revenue thereunder pursuant to GAAP and has fully rendered services related to the applicable billing period; provided that such portion shall not be subject to any dispute or any claims of offset); (o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; (p) it arises from a retail sale to a Person who is purchasing for personal, family or household purposes; (q) if the applicable Account Debtor is not a member of the BK Group and if the contract or agreement under or with respect to which any Account of such Account Debtor or any of its Affiliates arises contains a liquidated damages provision or any express offset provision and such Account Debtor or any of its Affiliates has not delivered a fully executed Non-Offset Letter to Agent that would apply to such Account; or (r) if the applicable Account Debtor is not a member of the BK Group and if the contract or agreement under or with respect to which any Account of such Account Debtor or any of its Affiliates arises does not contain any liquidated damages provision or any express offset provision and such Account Debtor or any of its Affiliates has not delivered a fully executed Non-Offset Letter to Agent that would apply to such Account (other than such Accounts described in this clause (r) (that would otherwise be Eligible Accounts) to the extent that inclusion of such Accounts pursuant to this parenthetical would not result in an aggregate increase in Eligible Accounts in an amount greater than (i) during the period from the Closing Date until September 30, 2006, the lesser of (1) $3,500,000 and (2) 30% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, (ii) during the period from October 1, 2006 until March 31, 2007, the lesser of (1) $3,000,000 and (2) 25% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, (iii) during the period from April 1, 2007 until September 30, 2007, the lesser of (1) $2,000,000 and (2) 20% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group, and (iv) thereafter, the lesser of (1) $1,000,000 and (2) 15% of the aggregate amount of Eligible Accounts that arise under a contract (and not, e.g., under a purchase order) owing from all Account Debtors that are not a member of the BK Group) at any time.",
"In calculating delinquent portions of Accounts, credit balances more than 90 days old will be excluded. -11- -------------------------------------------------------------------------------- Eligible Assignee — a Person that is (a) a Lender, U.S.-based Affiliate of a Lender or Approved Fund; (b) any other financial institution approved by Agent and Borrower Agent (which approval by Borrower Agent shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within two Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset-based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to Agent in its discretion. Eligible Inventory — Inventory owned by a Borrower that Agent, in its discretion, deems to be Eligible Inventory.",
"Without limiting the foregoing, no Inventory shall be Eligible Inventory unless it (a) is finished goods, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies; (b) is not held on consignment, nor subject to any deposit or downpayment; (c) is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale; (d) is not slow-moving, obsolete or unmerchantable, and does not constitute returned or repossessed goods; (e) meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any Environmental Law; (f) conforms with the covenants and representations herein; (g) is subject to Agent’s duly perfected, first priority Lien, and no other Lien; (h) is within the continental United States or Canada and is not in transit except between locations of Borrowers, other than Inventory in transit to the United States from vendors or suppliers (or from any Borrower or any of their respective Subsidiaries) with respect to which Agent’s first priority Lien is duly perfected and otherwise protected to Agent’s satisfaction in its sole discretion (which shall include, without limitation, a fully executed Imported Goods Agreement with respect to such Inventory in transit, satisfactory cargo insurance, a negotiable bill of lading naming Agent as the consignee thereof, and any other requirements required by Agent in its sole discretion); (i) is not subject to any warehouse receipt or negotiable Document and is not consigned to any Person; (j) is owned solely by the applicable Borrower or such Borrower has good, valid and marketable title thereto; (k) it is subject to a purchase order or other firm delivery contract (which may be an oral agreement that is followed by a written contract in the ordinary course of business) under a Program Sales Contract or other similar contract with Persons satisfactory to Agent (which approval shall not be unreasonably withheld); and (l) is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established. EMAK — EMAK Worldwide, Inc., a Delaware corporation.",
"EMI — Equity Marketing, Inc., a Delaware corporation. Enforcement Action — any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise). Environmental Agreement — each agreement of Borrowers with respect to any Real Estate subject to a Mortgage, pursuant to which Borrowers agree to indemnify and hold harmless Agent and Lenders from liability under any Environmental Laws. Environmental Laws — all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA. Environmental Notice — a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation -12- -------------------------------------------------------------------------------- relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise. Environmental Release — a release as defined in CERCLA or under any other Environmental Law.",
"Equipment — as defined in the UCC, including all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory), and all parts, accessories and special tools therefor, and accessions thereto. Equity Interest — the interest of any (a) shareholder in a corporation, (b) partner in a partnership (whether general, limited, limited liability or joint venture), (c) member in a limited liability company, or (d) other Person having any other form of equity security or ownership interest. Equity Marketing — Equity Marketing Hong Kong, Ltd., a Delaware corporation.",
"ERISA — the Employee Retirement Income Security Act of 1974. Event of Default — as defined in Section 11.1. Excluded Tax — Tax on the overall net income or gross receipts of a Lender imposed by the jurisdiction in which such Lender’s principal executive office is located. Existing Credit Agreement — the Credit Agreement dated as of April 21, 2001 among EMAK, as borrower, Bank of America, as administrative agent, swingline lender and letter of credit issuing lender and the other financial institutions party thereto, as amended, supplemented or otherwise modified from time to time on or prior the date hereof. Existing Letters of Credit — as defined in Section 2.2.1(e). Extraordinary Expenses — all costs, expenses or advances that Agent may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents or Obligations, including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; or (g) Protective Advances.",
"Such costs, expenses and advances include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses. Fiscal Quarter — a fiscal quarter of any Fiscal Year, which ends on March 31, June 30, September 30 and December 31 of each calendar year. Fiscal Year — the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes, ending on December 31 of each year. -13- -------------------------------------------------------------------------------- Fixed Charge Coverage Ratio — the ratio, determined on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) for the most recent 12-month period, of (a) EBITDA, to (b) Fixed Charges. Fixed Charges — for any period, the sum of cash interest expense paid or payable, Capital Expenditures, principal payments made on Borrowed Money (other than repayments of principal under this Agreement), net cash taxes paid or payable during such period (but in any event not less than zero) and Restricted Payments made (excluding Restricted Payments made to the extent permitted under Section 10.2.4(b) and (c), it being understood that such exclusion shall not exclude from Fixed Charges interest expense, Capital Expenditures, principal payments or taxes paid with such Restricted Payments).",
"FLSA — the Fair Labor Standards Act of 1938. Foreign Lender — any Lender that is organized under the laws of a jurisdiction other than the laws of the United States, or any state or district thereof. Foreign Plan — any employee benefit plan or arrangement maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States, or any employee benefit plan or arrangement mandated by a government other than the United States for employees of any Obligor or Subsidiary. Foreign Security Agreement — each security agreement or similar instrument governed by the laws of a country other than the United States, executed (i) on the Closing Date by EMAK, Equity Marketing and certain UK Subsidiaries, and (ii) from time to time after the Closing Date in accordance with Section 10.1.9, in each case in form and substance reasonably satisfactory to Agent, as such Foreign Security Agreement may be amended, supplemented or otherwise modified from time to time. Foreign Subsidiary — a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Internal Revenue Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on the assets of such Subsidiary to secure the Obligations would result in material tax liability to Borrowers.",
"Full Payment — with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its discretion, in the amount of required Cash Collateral); and (c) a release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the payment date. No Loans shall be deemed to have been paid in full until all Revolver Commitments related to such Loans have expired or been terminated. GAAP — generally accepted accounting principles in the United States in effect from time to time. General Intangibles — as defined in the UCC, including causes in action, causes of action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all rights to indemnification, and all other intangible Property of any kind.",
"Goods — as defined in the UCC. Governmental Approvals — all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities. -14- -------------------------------------------------------------------------------- Governmental Authority — any federal, state, municipal, foreign or other governmental department, agency, commission, board, bureau, court, tribunal, instrumentality, political subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or administrative functions for or pertaining to any government or court, in each case whether associated with the United States, a state, district or territory thereof, or a foreign entity or government. Guarantor Payment — as defined in Section 5.10.6. Guarantors — collectively, each Person who guarantees payment or performance of any Obligations.",
"Guaranty — each guaranty agreement executed by a Guarantor in favor of Agent. Hedging Agreement — an agreement relating to any swap, cap, floor, collar, option, forward, cross right or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign exchange, currency, commodity, credit or equity risk. HK Subsidiaries — collectively, EMAK Asia Holdings Company Limited, a Hong Kong company, EMAK China Limited, a Hong Kong company, EMAK Hong Kong Limited, a Hong Kong company, and any other Foreign Subsidiary organized under the laws of Hong Kong. Imported Goods Agreement — an agreement among any Borrower, its customs broker and Agent, substantially in the form of Exhibit H annexed hereto, with such changes hereto as may be agreed to by Agent in its discretion. Indemnitees — Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees.",
"Insolvency Proceeding — any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors. Instrument — as defined in the UCC. Insurance Assignment — each collateral assignment of insurance pursuant to which an Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s rights under key-man life, business interruption or other insurance policies as Agent deems appropriate, as security for the Obligations. Intellectual Property — all intellectual and similar Property of a Person, including inventions, designs, patents, patent applications, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, registrations and franchises; all books and records describing or used in connection with the foregoing; and all licenses or other rights to use any of the foregoing.",
"Intellectual Property Claim — any claim or assertion (whether in writing, by suit or otherwise) that a Borrower’s or Subsidiary’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property. Interest Period — as defined in Section 3.1.3. -15- -------------------------------------------------------------------------------- Inventory — as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment).",
"Inventory Borrowing Period — up to three 30-day periods during Fiscal Year 2006 as determined by Borrower Agent in its discretion by written notice to Agent not less than ten Business Days prior to the commencement of such period; provided however that no Inventory Borrowing Period shall commence until Agent shall have completed a field examination with respect to the Inventory of Borrowers in form and substance satisfactory to Agent. Inventory Borrowing Portion — as defined in the definition of “Applicable Margin.” Inventory Formula Amount — the lesser of (a) $1,500,000; or (b) 15% of the Value of Eligible Inventory. Inventory Reserve — reserves established by Agent to reflect factors that may negatively impact the Value of Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor chargebacks. Investment — any acquisition of all or substantially all assets of a Person; any acquisition of record or beneficial ownership of any Equity Interests of a Person or any significant portion of the assets of a Person or of any business or division of a Person; or any advance or capital contribution to or other investment in a Person.",
"Investment Property — as defined in the UCC. Issuing Bank — Bank of America or an Affiliate of Bank of America. Issuing Bank Indemnitees — Issuing Bank and its officers, directors, employees, Affiliates, agents and attorneys. Johnson — Johnson Grossfield, Inc., a Delaware corporation. Kellogg — Kellogg Company and its Affiliates. LC Application — an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance satisfactory to Issuing Bank. LC Conditions — the following conditions necessary for issuance of a Letter of Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no Revolver Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of Credit, (ii) no more than 120 days from issuance, in the case of documentary Letters of Credit, and (iii) at least 20 Business Days prior to the Revolver Termination Date; (d) the Letter of Credit and payments thereunder are denominated in Dollars; and (e) the form of the proposed Letter of Credit is satisfactory to Agent and Issuing Bank in their discretion. LC Documents — all documents, instruments and agreements (including LC Requests and LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any Letter of Credit. -16- -------------------------------------------------------------------------------- LC Obligations — the sum (without duplication) of (a) all amounts owing by Borrowers for any drawings under Letters of Credit; (b) the aggregate undrawn amount of all outstanding Letters of Credit; and (c) all fees and other amounts owing with respect to Letters of Credit.",
"LC Request — a request for issuance of a Letter of Credit, to be provided by Borrower Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank. LC Reserve — the aggregate of all LC Obligations, other than (a) those that have been Cash Collateralized, and (b) if no Default or Event of Default exists, those constituting charges owing to the Issuing Bank. Lender Indemnitees — Lenders and their officers, directors, employees, Affiliates, agents and attorneys. Lenders — as defined in the preamble to this Agreement, including Agent in its capacity as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance.",
"Letter of Credit — any standby or documentary letter of credit issued by Issuing Bank for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower and the Existing Letters of Credit. Letter-of-Credit Right — as defined in the UCC. Letter of Credit Subline — $10,000,000. LIBOR Loan — each set of LIBOR Revolver Loans having a common length and commencement of Interest Period. LIBOR Revolver Loan — a Revolver Loan that bears interest based on Adjusted LIBOR. License — any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business. License Agreements — each of the license agreements listed on Schedule 1.1B annexed hereto, as such agreements are in effect on the Closing Date and as such agreements may be amended from time to time thereafter to the extent permitted under Section 10.2.21 of this Agreement.",
"Licensor — any Person from whom an Obligor obtains the right to use any Intellectual Property. Lien — any Person’s interest in Property securing an obligation owed to, or a claim by, such Person, whether such interest is based on common law, statute or contract, including liens, security interests, pledges, hypothecations, statutory trusts, reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting Property. Lien Waiver — an agreement, in form and substance satisfactory to Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral (including, without limitation Collateral Access Agreements); (b) for any Collateral held by a warehouseman, processor, shipper or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents -17- -------------------------------------------------------------------------------- in its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License.",
"Loan — any advance made by any Lender to Borrowers as provided in Section 2.1 (collectively, the “Loans”), and may be a Base Rate Revolver Loan or an LIBOR Loan, and includes any Revolver Loan. Loan Account — the loan account established by each Lender on its books pursuant to Section 5.7.1. Loan Documents — this Agreement, Other Agreements and Security Documents. Loan Year — each calendar year commencing on the Closing Date and on each anniversary of the Closing Date. Logistix — Logistix, Inc., a Delaware corporation. Margin Stock — as defined in Regulation U of the Board of Governors. Material Adverse Effect — the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, operations, Properties, prospects or condition (financial or otherwise) of EMI or Borrowers taken as a whole, on the value of any material Collateral, on the enforceability of any Loan Documents, or on the validity or priority of Agent’s Liens on any Collateral; (b) impairs the ability of any Obligor to perform any obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise impairs the ability of Agent or any Lender to enforce or collect any Obligations or to realize upon any Collateral.",
"Material Contract — any agreement or arrangement to which a Borrower or Subsidiary is party (other than the Loan Documents) (a) that is a Related Document, (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect, or (c) that relates to Subordinated Debt, or Debt in an aggregate amount of $1,000,000 or more. MBC — Miller Brewing Company and its Affiliates. Moody’s — Moody’s Investors Service, Inc., and its successors. Mortgage — each mortgage, deed of trust or deed to secure debt pursuant to which a Borrower grants to Agent, for the benefit of Secured Parties, Liens upon the Real Estate owned by such Borrower, as security for the Obligations.",
"Multiemployer Plan — any employee benefit plan or arrangement described in Section 4001(a)(3) of ERISA that is maintained or contributed to by any Obligor or Subsidiary. Net Proceeds — with respect to an Asset Disposition, proceeds (including, when received, any deferred or escrowed payments) received by a Borrower or Subsidiary in cash from such disposition, net of (a) reasonable and customary costs and expenses actually incurred in connection therewith, including legal fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien -18- -------------------------------------------------------------------------------- senior to Agent’s Liens on Collateral sold; (c) transfer or similar taxes; and (d) reserves for indemnities, until such reserves are no longer needed. Negative Pledge — a Contractual Obligation that restricts Liens on Property. Non-Offset Letter — any letter or any similar acknowledgement agreement of any Account Debtor of any Borrower, substantially in the form of Exhibit G annexed hereto, with such changes thereto as may be agreed to by Agent in its discretion. Notice of Borrowing — a Notice of Borrowing to be provided by Borrower Agent to request the funding of a Borrowing of Revolver Loans, in form satisfactory to Agent.",
"Notice of Conversion/Continuation — a Notice of Conversion/Continuation to be provided by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in form satisfactory to Agent. Obligations — all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees and other sums payable by Obligors under Loan Documents, (d) obligations of Obligors under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several. Obligor — each Borrower, Guarantor, or other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations. Ordinary Course of Business — the ordinary course of business of any Borrower or Subsidiary, consistent with past practices and undertaken in good faith. Organic Documents — with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.",
"OSHA — the Occupational Safety and Hazard Act of 1970. Other Agreement — each Note; LC Document; Lien Waiver; Real Estate Related Document; Collateral Access Agreement; Borrowing Base Certificate, Compliance Certificate, financial statement or report delivered hereunder; or other document, instrument or agreement (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transactions relating hereto. Other Customer Agreements — (i) that certain Promotional Services and Materials Agreement dated as of March 1, 2005 between P&G and Upshot, Inc., (ii) that certain Consultant Services Agreement dated as of April 1, 2003 between Disney Vacation Development, Inc. and Equity Marketing, Inc., (iii) that certain Master Promotional Services Agreement dated as of April 1, 2005 between Miller Products Company and Upshot, Inc., (iv) that certain Premium Supply Agreement dated as of March 14, 2006 among Kellogg North America Company, Kellogg Canada, Inc. and Logistix, Inc., (v) that certain Promotional Services Agreement dated as of April 1, 2005 among Foster’s USA, LLC and Upshot, Inc., (vi) that certain Premium Supplier Agreement dated as of January 1, 2005 among Kraft Foods Global, -19- -------------------------------------------------------------------------------- Inc. (North America Commercial) and SCI and (vii) any other services or supply agreements entered into from time to time between Borrower or any of its Subsidiaries and any of its customers, in each case as such agreement is in effect on the Closing Date (in the case of clauses (i) through (vi)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21.",
"Overadvance — as defined in Section 2.1.5. Overadvance Loan — a Base Rate Revolver Loan made when an Overadvance exists or is caused by the funding thereof. P&G — The Proctor & Gamble Company and its Affiliates. Participant — as defined in Section 13.2. Patent Assignment — each patent collateral assignment agreement pursuant to which an Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s interests in its patents, as security for the Obligations. Patriot Act — the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No.",
"107-56, 115 Stat. 272 (2001). Payment Intangible — as defined in the UCC. Payment Item — each check, draft or other item of payment payable to a Borrower, including those constituting proceeds of any Collateral. Permitted Asset Disposition — as long as no Default or Event of Default exists and all Net Proceeds are remitted to the Dominion Account, an Asset Disposition that is (a) a sale of Inventory in the Ordinary Course of Business; (b) a disposition of Equipment that, in the aggregate during any 12 month period, has a fair market or book value (whichever is more) of $250,000 or less; (c) a disposition of Inventory that is obsolete, unmerchantable or otherwise unsalable in the Ordinary Course of Business; (d) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from an Obligor’s default; or (e) approved in writing by Agent and Required Lenders. Permitted Contingent Obligations — Contingent Obligations (a) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (e) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of Equipment permitted hereunder; (f) arising under the Loan Documents; or (g) in an aggregate amount of $250,000 or less at any time.",
"Permitted Lien — as defined in Section 10.2.2. Permitted Purchase Money Debt — Purchase Money Debt of Borrowers and Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount does not exceed $1,000,000 at any time and its incurrence does not violate Section 10.2.3. Person — any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity. -20- -------------------------------------------------------------------------------- Plan — an employee pension benefit plan that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and that is either (a) maintained by a Borrower or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which a Borrower or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions.",
"Pledged Collateral — means the “Pledged Collateral” as defined in the Domestic Pledge Agreement or any Foreign Security Agreement. Pop Rocket — Pop Rocket, Inc., a Delaware corporation. Preferred Stock — the Series AA Preferred Stock. Pro Rata — with respect to any Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined (a) while Revolver Commitments are outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and (b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate amount of all outstanding Loans and LC Obligations. Prodesign — as defined in Section 10.1.16. Program Sales — the promotional programs for BK or RSI, and any Affiliates thereof, which are serviced by Borrowers or Subsidiaries.",
"Program Sales Contract — any contract or other arrangement relating to Program Sales between BK or RSI, or any Affiliates thereof, and any Borrowers or Subsidiaries. Properly Contested — with respect to any obligation of an Obligor, (a) the obligation is subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment could not have a Material Adverse Effect, nor result in forfeiture or sale of any assets of the Obligor; (e) no Lien is imposed on assets of the Obligor, unless bonded and stayed to the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review. Property — any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.",
"Protective Advances — as defined in Section 2.1.6. PTO — the United States Patent and Trademark Office or any successor or substitute office in the United States in which filings are necessary or, in the opinion of Agent, desirable in order to create or perfect Liens on any Intellectual Property Collateral. Purchase Money Debt — (a) Debt (other than the Obligations) for payment of any of the purchase price of fixed assets; (b) Debt (other than the Obligations) incurred within ten days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof. Purchase Money Lien — a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Debt and constituting a Capital Lease or a purchase money security interest under the UCC.",
"-21- -------------------------------------------------------------------------------- RCRA — the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i). Real Estate — all right, title and interest (whether as owner, lessor or lessee) in any real Property or any buildings, structures, parking areas or other improvements thereon. Refinancing Conditions — the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that does not exceed the principal amount of the Debt being extended, renewed or refinanced; (b) it has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed or refinanced; (d) the representations, covenants and defaults applicable to it are no less favorable to Borrowers than those applicable to the Debt being extended, renewed or refinanced; (e) no additional Lien is granted to secure it; (f) no additional Person is obligated on such Debt; and (g) upon giving effect to it, no Default or Event of Default exists. Refinancing Debt — Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(d).",
"Registration Rights Agreement - that certain Registration Rights Agreement dated as of March 29, 2000 by and between EMAK and Crown, as such agreement is in effect on the Closing Date and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.21 of this Agreement. Reimbursement Date — as defined in Section 2.2.2. Related Documents — the Securities Purchase Agreement, the Warrants, the Registration Rights Agreement, the Certificate of Designation, the BK Services Agreements, the BK Supply Agreements, the Other Customer Agreements, any other BK Agreements, and the RSI Supply Agreements. Related Real Estate Documents — with respect to any Real Estate subject to a Mortgage, the following, in form and substance satisfactory to Agent and received by Agent for review at least 15 days prior to the effective date of the Mortgage: (a) a mortgagee title policy (or binder therefor) covering Agent’s interest under the Mortgage, in a form and amount and by an insurer acceptable to Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as Agent may require with respect to other Persons having an interest in the Real Estate; (c) a current, as-built survey of the Real Estate, containing a metes-and-bounds property description and flood plain certification, and certified by a licensed surveyor acceptable to Agent; (d) flood insurance in an amount, with endorsements and by an insurer acceptable to Agent, if the Real Estate is within a flood plain; (e) a current appraisal of the Real Estate, prepared by an appraiser acceptable to Agent, and in form and substance satisfactory to Required Lenders; (f) an environmental assessment, prepared by environmental engineers acceptable to Agent, and accompanied by such reports, certificates, studies or data as Agent may reasonably require, which shall all be in form and substance satisfactory to Required Lenders; and (g) an Environmental Agreement and such other documents, instruments or agreements as Agent may reasonably require with respect to any environmental risks regarding the Real Estate.",
"Rent and Charges Reserve — the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve at least equal to three months rent and other charges that could be payable to any such Person less the amount of any L/C Obligations securing such obligations, unless it has executed a Lien Waiver. Report — as defined in Section 12.2.3. -22- -------------------------------------------------------------------------------- Reportable Event — any event set forth in Section 4043(b) of ERISA. Required Lenders — Lenders (subject to Section 4.2) having (a) Revolver Commitments in excess of 66 2/3% of the aggregate Revolver Commitments; and (b) if the Revolver Commitments have terminated, Loans in excess of 66 2/3% of all outstanding Loans. Reserve Percentage — the reserve percentage (expressed as a decimal, rounded upward to the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the Board of Governors for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”). Restricted Investment — any Investment by a Borrower or Subsidiary, other than (a) Investments in Subsidiaries to the extent existing on the Closing Date; (b) Cash Equivalents that are subject to Agent’s Lien and control, pursuant to documentation in form and substance satisfactory to Agent; and (c) loans and advances permitted under Section 10.2.7.",
"Restricted Payment — (a) the declaration or payment of any dividend or distribution by a Borrower or Subsidiary, either in cash or property, on any shares of the capital stock of any class or any other Equity Interests of such Borrower or Subsidiary (other than dividends or other distributions payable solely in shares of capital stock of a Borrower or Subsidiary or payable by a Subsidiary to a Borrower); (b) the purchase, redemption or retirement by a Borrower or Subsidiary of any shares of its capital stock of any class or any warrants, rights or options to purchase or acquire any shares of its capital stock or any other Equity Interests, whether directly or indirectly; (c) any other payment or distribution by a Borrower or Subsidiary in respect of its capital stock, either directly or indirectly (other than dividends or other distributions payable solely in shares of capital stock or any other Equity Interests of a Borrower or Subsidiary or payable by a Subsidiary to a Borrower); (d) any prepayment, repayment, redemption, defeasance or other acquisition or retirement for value (i) of any Debt to a holder of Equity Interests or (ii) of Subordinated Debt; and (e) any payment of cash by any Borrower to any HK Subsidiary, any UK Subsidiary or any other Foreign Subsidiary. Restrictive Agreement — an agreement (other than a Loan Document) that conditions or restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed Money, to grant Liens on any assets, to declare or make Restricted Payments, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Debt. Revolver Commitment — for any Lender, its obligation to make Revolver Loans and to participate in the LC Obligations up to the maximum principal amount shown on Schedule 1.1A, or as specified hereafter in the most recent Assignment and Acceptance to which it is a party.",
"“Revolver Commitments” means the aggregate amount of such commitments of all Lenders. Revolver Loan — a loan made pursuant to Section 2.1, and any Swingline Loan, Overadvance Loan or Protective Advance. Revolver Note — a promissory note to be executed by Borrowers in favor of a Lender in the form of Exhibit A, which shall be in the amount of such Lender’s Revolver Commitment and shall evidence the Revolver Loans made by such Lender. Revolver Termination Date — March 29, 2009. Royalties — all royalties, fees, expense reimbursement and other amounts payable by a Borrower under a License. RSI — Restaurant Services, Inc., a Delaware corporation. -23- -------------------------------------------------------------------------------- RSI Supply Agreements — (i) that certain Fifth Amended and First Restated Master Supply Agreement, dated as of May 15, 2002, by and between RSI and EMAK, and (ii) any other supply agreements entered into from time to time between RSI or any of its Affiliates and any Borrower or any of its Subsidiaries, in each case as such agreement is in effect on the Closing Date (in the case of clause (i)) and as such agreement may be amended from time to time thereafter to the extent permitted under Section 10.2.2. SCI — SCI Promotion, Inc., a Delaware corporation.",
"S&P — Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors. Secured Parties — Agent, Issuing Bank, Lenders and providers of Bank Products. Securities Account — as defined in the UCC. Securities Account Control Agreement — each securities account control agreement executed and delivered by an Obligor, Agent and a securities intermediary, in form and substance satisfactory to Agent, covering each of the Securities Accounts established with such securities intermediary, as such Securities Account Control Agreement may be amended, supplemented or otherwise modified from time to time, and “Securities Account Control Agreements” means all such Securities Account Control Agreements, collectively. Securities Purchase Agreement — that certain Securities Purchase Agreement dated as of March 29, 2000 by and between Crown and EMAK, as amended (i) by that certain Amendment No. 1 to Securities Purchase Agreement dated as of May 5, 2000 by and between Crown and EMAK, (ii) by that certain Amendment No.",
"2 to Securities Purchase Agreement dated as of June 1, 2000 by and between Crown and EMAK, and (iii) may be amended from to time to time to the extent permitted under Section 10.2.21 of this Agreement. Security Documents — the Domestic Pledge Agreement, Foreign Security Agreements, Guaranties, Mortgages, Patent Assignments, Trademark Security Agreements, Insurance Assignments, Deposit Account Control Agreements, Securities Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations. Senior Officer — the chairman of the board, president, chief executive officer or chief financial officer (or vice president-finance or vice president-controller) or executive vice president of a Borrower or, if the context requires, an Obligor.",
"Series AA Preferred Stock — the Series AA Senior Cumulative Participating Convertible Preferred Stock of EMAK, par value $0.001 per share. Settlement Report — a report delivered by Agent to Lenders summarizing the Revolver Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Revolver Commitments. Software — as defined in the UCC. Solvent — as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they -24- -------------------------------------------------------------------------------- mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates.",
"“Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase. Statutory Reserves — the percentage (expressed as a decimal) established by the Board of Governors as the then stated maximum rate for all reserves (including those imposed by Regulation D of the Board of Governors, all basic, emergency, supplemental or other marginal reserve requirements, and any transitional adjustments or other scheduled changes in reserve requirements) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency Liabilities (or any successor category of liabilities under Regulation D). Subordinated Debt — Debt incurred by a Borrower that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) satisfactory to Agent.",
"Subsidiary — any entity at least 50% of whose voting securities or Equity Interests is owned by a Borrower or any combination of Borrowers (including indirect ownership by a Borrower through other entities in which the Borrower directly or indirectly owns 50% of the voting securities or Equity Interests). Supporting Obligation — as defined in the UCC. Supply Chain — Supply Chain Services LLC and its Affiliates. Swingline Loan — any Borrowing of Base Rate Revolver Loans funded with Agent’s funds, until such Borrowing is settled among Lenders pursuant to Section 4.1.3. Sunoco — Sunoco, Inc. and its Affiliates.",
"Target — Target Corporation and its Affiliates. Taxes — any taxes, levies, imposts, duties, fees, assessments, deductions, withholdings or other charges of whatever nature, including income, receipts, excise, property, sales, use, transfer, license, payroll, withholding, social security, franchise, intangibles, stamp or recording taxes imposed by any Governmental Authority, and all interest, penalties and similar liabilities relating thereto. Threshold Amount — $500,000. Trademark Security Agreement — each trademark security agreement pursuant to which an Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in trademarks, as security for the Obligations. Transferee — any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations. Type — any type of a Revolver Loan (i.e., Base Rate Revolver Loan or LIBOR Loan) that has the same interest option and, in the case of LIBOR Loans, the same Interest Period. -25- -------------------------------------------------------------------------------- UCC — the Uniform Commercial Code as in effect in the State of California or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.",
"UK Subsidiaries — EMAK Europe Holdings, Limited, a United Kingdom company and any other Foreign Subsidiary organized under the laws of United Kingdom or Northern Ireland. Upshot — Upshot, Inc., a Delaware corporation. Value — (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis; and (b) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person. Warrants — the Common Warrants. 1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified herein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrowers’ certified public accountants concur in such change, the change is disclosed to Agent, and Section 10.3 is amended in a manner satisfactory to Required Lenders to take into account the effects of the change.",
"Notwithstanding the foregoing and any other provision of this Agreement, the financial covenants set forth in Section 10.3 shall be calculated with respect to Borrowers and their Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) on a consolidated basis. 1.3 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders.",
"In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors and assigns; (f) time of day mean time of day at Agent’s notice address under Section 14.3.1; or (g) discretion of Agent, Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, fundings of Loans, issuances of Letters of Credit and payments of Obligations shall be in Dollars and, unless the context otherwise requires, all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time.",
"Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision.",
"Whenever the phrase “to the best of Borrowers’ knowledge” or words of similar import are -26- -------------------------------------------------------------------------------- used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter to which such phrase relates. SECTION 2. CREDIT FACILITIES 2.1 Revolver Commitment. 2.1.1 Revolver Loans.",
"Each Lender agrees, severally on a Pro Rata basis up to its Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers from time to time through the Commitment Termination Date. The Revolver Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any obligation to honor a request for a Revolver Loan if the unpaid balance of Revolver Loans outstanding at such time (including the requested Revolver Loan) would exceed the Borrowing Base. 2.1.2 Revolver Notes. The Revolver Loans made by each Lender and interest accruing thereon shall be evidenced by the records of Agent and such Lender. At the request of any Lender, Borrowers shall deliver a Revolver Note to such Lender. 2.1.3 Use of Proceeds. The proceeds of Revolver Loans shall be used by Borrowers solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d) for working capital and other lawful corporate purposes of Borrowers. 2.1.4 Voluntary Reduction or Termination of Revolver Commitments.",
"(a) The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this Agreement. Upon at least 90 days prior written notice to Agent at any time after the first Loan Year, Borrowers may, at their option, terminate the Revolver Commitments and this credit facility. Any notice of termination given by Borrowers shall be irrevocable. On the termination date, Borrowers shall make Full Payment of all Obligations. (b) Borrowers may permanently reduce the Revolver Commitments, on a Pro Rata basis for each Lender, from time to time upon written notice to Agent, which notice shall specify the amount of the reduction, shall be irrevocable once given, shall be given at least five Business Days prior to the end of a month and shall be effective as of the first day of the next month.",
"Each reduction shall be in a minimum amount of $1,000,000, or an increment of $1,000,000 in excess thereof; provided, however, that Borrowers may not permanently reduce the Revolver Commitments below $20,000,000. 2.1.5 Overadvances. If the aggregate Revolver Loans exceed the Borrowing Base (“Overadvance”) or the aggregate Revolver Commitments at any time, the excess amount shall be payable by Borrowers on demand by Agent, but all such Revolver Loans shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in writing by Required Lenders, Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is known to Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed $2,000,000; and (b) regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance (i) is not increased by more than $2,000,000 (including such discovered Overadvance), and (ii) does not continue for more than 30 consecutive days.",
"In no event shall Overadvance Loans be required that would cause -27- -------------------------------------------------------------------------------- the outstanding Revolver Loans and LC Obligations to exceed the aggregate Revolver Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized to enforce any of its terms. 2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at any time that a Default or Event of Default exists or any conditions in Section 6 are not satisfied, and without regard to the aggregate Revolver Commitments, to make Base Rate Revolver Loans (“Protective Advances”) (a) up to an aggregate amount of $2,000,000 outstanding at any time, if Agent deems such Loans necessary or desirable to preserve or protect any Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other amounts chargeable to Obligors under any Loan Documents, including costs, fees and expenses.",
"All Protective Advances shall be Obligations, secured by the Collateral, and shall be treated for all purposes as Extraordinary Expenses. Each Lender shall participate in each Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke Agent’s authorization to make further Protective Advances by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. 2.2 Letter of Credit Facility. 2.2.1 Issuance of Letters of Credit. Issuing Bank agrees to issue Letters of Credit from time to time until 30 days prior to the Revolver Termination Date (or until the Commitment Termination Date, if earlier), on the terms set forth herein, including the following: (a) Each Borrower acknowledges that Issuing Bank’s willingness to issue any Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; and (ii) each LC Condition is satisfied.",
"If Issuing Bank receives written notice from a Lender at least one Business Day before issuance of a Letter of Credit that any LC Condition has not been satisfied, Issuing Bank shall have no obligation to issue the requested Letter of Credit (or any other) until such notice is withdrawn in writing by that Lender or until Required Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions. (b) Letters of Credit may be requested by a Borrower only (i) to support obligations of such Borrower incurred in the Ordinary Course of Business; or (ii) for other purposes as Agent and Lenders may approve from time to time in writing. The renewal or extension of any Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that delivery of a new LC Application shall be required at the discretion of Issuing Bank. (c) Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary.",
"In connection with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Borrower; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical -28- -------------------------------------------------------------------------------- terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental Authority.",
"The rights and remedies of Issuing Bank under the Loan Documents shall be cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Borrowers are discharged with proceeds of any Letter of Credit. (d) In connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, notice or other communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected with reasonable care. (e) As of the Closing Date, Bank of America has under the Existing Credit Agreement issued for the account of Borrowers certain existing letters of credit listed in Schedule 2.2.1 hereto (collectively the “Existing Letters of Credit”).",
"Upon satisfaction of the conditions set forth in Section 6.1, the Existing Letters of Credit shall, effective as of the Closing Date, become Letters of Credit under this Agreement to the same extent as if initially issued hereunder and each Lender shall be deemed to have irrevocably purchased from the Issuing Bank of such Existing Letters of Credit a participation in such Letters of Credit and drawings thereunder in an amount equal to such Lender’s Pro Rata share of the maximum amount which is or at any time may become available to be drawn thereunder.",
"All such Existing Letters of Credit which become Letters of Credit under this Agreement shall be fully secured by the Collateral commencing on the Closing Date to the same extent as if initially issued hereunder on such date. 2.2.2 Reimbursement; Participations. (a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Revolver Loans from the Reimbursement Date until payment by Borrowers. The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate Revolver Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees to fund its Pro Rata share of such Borrowing whether or not the Revolver Commitments have terminated, an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied. (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit.",
"If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not reimburse such payment on the Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment. Upon request by a Lender, Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its possession at such time. -29- -------------------------------------------------------------------------------- (c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Obligor may have with respect to any Obligations. Issuing Bank does not assume any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Documents.",
"Issuing Bank does not make to Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, LC Documents or any Obligor. Issuing Bank shall not be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor. (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any LC Documents except as a result of its actual gross negligence or willful misconduct.",
"Issuing Bank shall not have any liability to any Lender if Issuing Bank refrains from any action under any Letter of Credit or LC Documents until it receives written instructions from Required Lenders. 2.2.3 Cash Collateral. If any LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that Availability is less than zero, (c) after the Commitment Termination Date, or (d) within 20 Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing Bank’s or Agent’s request, pay to Issuing Bank the amount of all outstanding LC Obligations and Cash Collateralize all outstanding Letters of Credit. If Borrowers fail to Cash Collateralize outstanding Letters of Credit as required herein, Lenders may (and shall upon direction of Agent) advance, as Revolver Loans, the amount of the Cash Collateral required (whether or not the Revolver Commitments have terminated, an Overadvance exists, or the conditions in Section 6 are satisfied).",
"SECTION 3. INTEREST, FEES AND CHARGES 3.1 Interest. 3.1.1 Rates and Payment of Interest. (a) The Obligations shall bear interest (i) if a Base Rate Revolver Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at Adjusted LIBOR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Revolver Loans. Interest shall accrue from the date the Revolver Loan is advanced or the Obligation is incurred or payable, until paid by Borrowers. If a Revolver Loan is repaid on the same day made, one day’s interest shall accrue. Borrowers shall not be permitted to request LIBOR Revolver Loans with respect to the Inventory Borrowing Portion. (b) During an Insolvency Proceeding with respect to any Borrower, or during any other Event of Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate.",
"Each Borrower acknowledges that the cost and expense to Agent and each Lender due to an Event of Default are difficult to ascertain and that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders for such added cost and expense. -30- -------------------------------------------------------------------------------- (c) Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of each month and, for any LIBOR Loan, the last day of its Interest Period; (ii) on any date of prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the Revolver Commitment Termination Date. Interest accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no payment date is specified, shall be due and payable on demand. Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and payable on demand. 3.1.2 Application of Adjusted LIBOR to Outstanding Revolver Loans.",
"(a) Borrowers may on any Business Day, subject to delivery of a Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Revolver Loans to, or to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a LIBOR Loan. (b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least two Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the aggregate principal amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified).",
"If, upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate Revolver Loans. 3.1.3 Interest Periods. In connection with the making, conversion or continuation of any LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to apply, which interest period shall be one, two, three or six months; provided, however, that: (a) the Interest Period shall commence on the date the Loan is made or continued as, or converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar month at its end; (b) if any Interest Period commences on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month; and if any Interest Period would expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the Revolver Termination Date.",
"3.1.4 Interest Rate Not Ascertainable. If Agent shall determine that on any date for determining Adjusted LIBOR, due to any circumstance affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided herein, then Agent shall immediately notify Borrowers of such determination. Until Agent notifies Borrowers that such circumstance no longer exists, the obligation of Lenders to make LIBOR Loans shall be suspended, and no further Loans may be converted into or continued as LIBOR Loans. 3.2 Fees. 3.2.1 Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee which shall accrue at a rate per annum equal to the percentage set forth below opposite the Commitment Utilization Percentage with respect to each day (the “Commitment Fee Rate”) of the daily -31- -------------------------------------------------------------------------------- unused amount of the respective Revolver Commitments of such Lenders (excluding with respect to Agent the amount of any Swingline Loans) during the period from and including the Closing Date to the Commitment Termination Date: Commitment Utilization Percentage Commitment Fee Rate Less than or equal to 25% 0.500 % Greater than 25% 0.375 % Such fee shall be payable in arrears, on the first day of each month and on the Commitment Termination Date.",
"3.2.2 LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal 2.50% per annum times the average daily stated amount of Letters of Credit, which fee shall be payable monthly in arrears, on the first day of each month; (b) to Agent, for its own account, a fronting fee equal to 0.25% of the stated amount of each Letter of Credit, which fee shall be payable upon issuance of the Letter of Credit and on each anniversary date of such issuance, and shall be payable on any increase in stated amount made between any such dates; and (c) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (a) shall be increased by 2% per annum. With respect to Existing Letters of Credit, the fees described in clauses (a), (b) and (c) above shall accrue from and including the Closing Date. 3.2.3 Closing Fee.",
"Borrowers shall pay to Agent, for the Pro Rata benefit of the Lenders, a closing fee of $100,000, which shall be paid concurrently with the funding of the initial Loans hereunder. 3.2.4 Agent Fees. In consideration of Agent’s syndication of the Revolver Commitments and service as Agent hereunder, Borrowers shall pay to Agent, for its own account, a non-refundable annual administrative agent’s fee of $15,000 per annum, payable in advance on the Closing Date and on each anniversary thereof. 3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days. Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error.",
"All fees shall be fully earned when due and shall not be subject to rebate or refund, nor subject to proration except as specifically provided herein. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by Borrowers under Section 3.4, 3.6, 3.7, 3.9 or 5.8, submitted to Borrowers by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all purposes, absent manifest error. 3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary Expenses.",
"Borrowers shall also reimburse Agent for all legal, accounting, appraisal, consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation and preparation of any Loan Documents, including any amendment or other modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) each inspection, audit or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party. All legal, accounting and -32- -------------------------------------------------------------------------------- consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly rates, regardless of any reduced or alternative fee billing arrangements that Agent, any Lender or any of their Affiliates may have with such professionals with respect to this or any other transaction. All amounts reimbursable by Borrowers under this Section shall constitute Obligations secured by the Collateral and shall be payable on demand. 3.5 Illegality. Notwithstanding anything to the contrary herein, if (a) any change in any law or interpretation thereof by any Governmental Authority makes it unlawful for a Lender to make or maintain a LIBOR Loan or to maintain any Revolver Commitment with respect to LIBOR Loans or (b) a Lender determines that the making or continuance of a LIBOR Loan has become impracticable as a result of a circumstance that adversely affects the London interbank market or the position of such Lender in such market, then such Lender shall give notice thereof to Agent and Borrowers and may (i) declare that LIBOR Loans will not thereafter be made by such Lender, whereupon any request for a LIBOR Loan from such Lender shall be deemed to be a request for a Base Rate Revolver Loan unless such Lender’s declaration has been withdrawn (and it shall be withdrawn promptly upon cessation of the circumstances described in clause (a) or (b) above); and/or (ii) require that all outstanding LIBOR Loans made by such Lender be converted to Base Rate Revolver Loans immediately, in which event all outstanding LIBOR Loans of such Lender shall be immediately converted to Base Rate Revolver Loans.",
"3.6 Increased Costs. If, by reason of (a) the introduction of or any change (including any change by way of imposition or increase of Statutory Reserves or other reserve requirements) in any law or interpretation thereof, or (b) the compliance with any guideline or request from any Governmental Authority or other Person exercising control over banks or financial institutions generally (whether or not having the force of law): (i) a Lender shall be subject to any Tax with respect to any LIBOR Loan or Letter of Credit or its obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations, or a change shall result in the basis of taxation of any payment to a Lender with respect to its LIBOR Loans or its obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations (except for Excluded Taxes); or (ii) any reserve (including any imposed by the Board of Governors), special deposits or similar requirement against assets of, deposits with or for the account of, or credit extended by, a Lender shall be imposed or deemed applicable, or any other condition affecting a Lender’s LIBOR Loans or obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations shall be imposed on such Lender or the London interbank market; and as a result there shall be an increase in the cost to such Lender of agreeing to make or making, funding or maintaining LIBOR Loans, Letters of Credit or participations in LC Obligations (except to the extent already included in determination of Adjusted LIBOR), or there shall be a reduction in the amount receivable by such Lender, then the Lender shall promptly notify Borrowers and Agent of such event, and Borrowers shall, within five days following demand therefor, pay such Lender the amount of such increased costs or reduced amounts.",
"If a Lender determines that, because of circumstances described above or any other circumstances arising hereafter affecting such Lender, the London interbank market or the Lender’s position in such market, Adjusted LIBOR or its Applicable Margin, as applicable, will not adequately and fairly reflect the cost to such Lender of funding LIBOR Loans, issuing Letters of Credit or participating in LC Obligations, then (A) the Lender shall promptly notify Borrowers and Agent of such event; (B) such Lender’s obligation to make LIBOR Loans, issue Letters of Credit or participate in LC Obligations shall be immediately suspended, until each condition giving rise to such suspension no longer exists; and (C) such Lender shall make a Base Rate Revolver Loan as part of any requested Borrowing of LIBOR Loans, which Base Rate Revolver Loan shall, for all purposes, be considered part of such Borrowing. -33- -------------------------------------------------------------------------------- 3.7 Capital Adequacy. If a Lender determines that any introduction of or any change in a Capital Adequacy Regulation, any change in the interpretation or administration of a Capital Adequacy Regulation by a Governmental Authority charged with interpretation or administration thereof, or any compliance by such Lender or any Person controlling such Lender with a Capital Adequacy Regulation, increases the amount of capital required or expected to be maintained by such Lender or Person (taking into consideration its capital adequacy policies and desired return on capital) as a consequence of such Lender’s Revolver Commitments, Loans, participations in LC Obligations or other obligations under the Loan Documents, then Borrowers shall, within five days following demand therefor, pay such Lender an amount sufficient to compensate for such increase.",
"A Lender’s demand for payment shall set forth the nature of the occurrence giving rise to such compensation and a calculation of the amount to be paid. In determining such amount, the Lender may use any reasonable averaging and attribution method. 3.8 Mitigation. Each Lender agrees that, upon becoming aware that it is subject to Section 3.5, 3.6, 3.7 or 5.8, it will take reasonable measures to reduce Borrowers’ obligations under such Sections, including funding or maintaining its Revolver Commitments or Loans through another office, as long as use of such measures would not adversely affect the Lender’s Revolver Commitments, Loans, business or interests, and would not be inconsistent with any internal policy or applicable legal or regulatory restriction. 3.9 Funding Losses.",
"If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, or (c) Borrowers fail to repay a LIBOR Loan when required hereunder, then Borrowers shall pay to Agent its customary administrative charge and to each Lender all losses and expenses that it sustains as a consequence thereof, including any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds. Lenders shall not be required to purchase Dollar deposits in the London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund its LIBOR Loans.",
"3.10 Maximum Interest. In no event shall interest, charges or other amounts that are contracted for, charged or received by Agent and Lenders pursuant to any Loan Documents and that are deemed interest under Applicable Law (“interest”) exceed the highest rate permissible under Applicable Law (“maximum rate”). If, in any month, any interest rate, absent the foregoing limitation, would have exceeded the maximum rate, then the interest rate for that month shall be the maximum rate and, if in a future month, that interest rate would otherwise be less than the maximum rate, then the rate shall remain at the maximum rate until the amount of interest actually paid equals the amount of interest which would have accrued if it had not been limited by the maximum rate. If, upon Full Payment of the Obligations, the total amount of interest actually paid under the Loan Documents is less than the total amount of interest that would, but for this Section, have accrued under the Loan Documents, then Borrowers shall, to the extent permitted by Applicable Law, pay to Agent, for the account of Lenders, (a) the lesser of (i) the amount of interest that would have been charged if the maximum rate had been in effect at all times, or (ii) the amount of interest that would have accrued had the interest rate otherwise set forth in the Loan Documents been in effect, minus (b) the amount of interest actually paid under the Loan Documents.",
"If a court of competent jurisdiction determines that Agent or any Lender has received interest in excess of the maximum amount allowed under Applicable Law, such excess shall be deemed received on account of, and shall automatically be applied to reduce, Obligations other than interest (regardless of any erroneous application thereof by Agent or any Lender), and upon Full Payment of the Obligations, any balance shall be refunded to Borrowers. In determining whether any excess interest has been charged or received by Agent or any Lender, all interest at any time charged or received from Borrowers in connection with the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. -34- -------------------------------------------------------------------------------- SECTION 4. LOAN ADMINISTRATION 4.1 Manner of Borrowing and Funding Revolver Loans. 4.1.1 Notice of Borrowing. (a) Whenever Borrowers desire funding of a Borrowing of Revolver Loans, Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 11:00 a.m. (i) on the Business Day of the requested funding date, in the case of Base Rate Revolver Loans, and (ii) at least two Business Days prior to the requested funding date, in the case of LIBOR Loans.",
"Notices received after 11:00 a.m. shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the principal amount of the Borrowing, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Revolver Loans or LIBOR Loans, and (D) in the case of LIBOR Loans, the duration of the applicable Interest Period (which shall be deemed to be one month if not specified). (b) Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations (whether principal, interest, fees or other charges, including Extraordinary Expenses, LC Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate Revolver Loans on the due date, in the amount of such Obligations.",
"The proceeds of such Revolver Loans shall be disbursed as direct payment of the relevant Obligation. (c) If Borrowers establish a controlled disbursement account with Agent or any Affiliate of Agent, then the presentation for payment of any check or other item of payment drawn on such account at a time when there are insufficient funds to cover it shall be deemed to be a request for Base Rate Revolver Loans on the date of such presentation, in the amount of the check and items presented for payment. The proceeds of such Revolver Loans may be disbursed directly to the controlled disbursement account or other appropriate account. 4.1.2 Fundings by Lenders. Each Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is properly requested hereunder. Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 12:00 noon on the proposed funding date for Base Rate Revolver Loans or by 3:00 p.m. at least two Business Days before any proposed funding of LIBOR Loans. Each Lender shall fund to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in immediately available funds not later than 2:00 p.m. on the requested funding date, unless Agent’s notice is received after the times provided above, in which event Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day.",
"Subject to its receipt of such amounts from Lenders, Agent shall disburse the proceeds of the Revolver Loans as directed by Borrower Agent. Unless Agent shall have received (in sufficient time to act) written notice from a Lender that it does not intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lender’s share of any Borrowing is not in fact received by Agent, then Borrowers agree to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to such Borrowing. 4.1.3 Swingline Loans; Settlement.",
"(a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers out of Agent’s own funds, up to an aggregate outstanding amount of $2,500,000, unless the funding is specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account. -35- -------------------------------------------------------------------------------- The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any promissory note.",
"(b) To facilitate administration of the Revolver Loans, Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that settlement among them with respect to Swingline Loans and other Revolver Loans may take place periodically on a date determined from time to time by Agent, which shall occur at least once every five Business Days. On each settlement date, settlement shall be made with each Lender in accordance with the Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline Loans, regardless of any designation by Borrower or any provision herein to the contrary.",
"Each Lender’s obligation to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other defense, and whether or not the Revolver Commitments have terminated, an Overadvance exists, or the conditions in Section 6 are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such participation to Agent, in immediately available funds, within one Business Day after Agent’s request therefor.",
"4.1.4 Notices. Each Borrower authorizes Agent and Lenders to extend, convert or continue Loans, effect selections of interest rates, and transfer funds to or on behalf of Borrowers based on telephonic or e-mailed instructions. Borrowers shall confirm each such request by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any material respect from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to be a person authorized to give such instructions on a Borrower’s behalf.",
"4.2 Defaulting Lender. If a Lender fails to make any payment to Agent that is required hereunder, Agent may (but shall not be required to), in its discretion, retain payments that would otherwise be made to such defaulting Lender hereunder, apply the payments to such Lender’s defaulted obligations or readvance the funds to Borrowers in accordance with this Agreement. The failure of any Lender to fund a Loan or to make a payment in respect of a LC Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall be responsible for default by another Lender. Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of determining a defaulting Lender’s right to vote on matters relating to the Loan Documents and to share in payments, fees and Collateral proceeds thereunder, a defaulting Lender shall not be deemed to be a “Lender” until all its defaulted obligations have been cured. 4.3 Number and Amount of LIBOR Loans; Determination of Rate.",
"For ease of administration, all LIBOR Revolver Loans having the same length and beginning date of their Interest Periods shall be aggregated together, and such Loans shall be allocated among Lenders on a Pro Rata basis. No more than eight aggregated LIBOR Loans may be outstanding at any time, and each aggregate LIBOR Loan when made, continued or converted shall be in a minimum amount of $1,000,000, or an increment of $100,000 in excess thereof. Upon determining Adjusted LIBOR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.",
"4.4 Borrower Agent. Each Borrower hereby designates EMAK (“Borrower Agent”) as its representative and agent for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications with Agent, Issuing -36- -------------------------------------------------------------------------------- Bank or any Lender, preparation and delivery of Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower.",
"Agent shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it. 4.5 One Obligation. The Loans, LC Obligations and other Obligations shall constitute one general obligation of Borrowers and (unless otherwise expressly provided in any Loan Document) shall be secured by Agent’s Lien upon all Collateral; provided, however, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower.",
"4.6 Effect of Termination. On the effective date of any termination of the Revolver Commitments, all Obligations shall be immediately due and payable, and any Lender may terminate its and its Affiliates’ Bank Products (including, with the consent of Agent, any Cash Management Services). All undertakings of Borrowers contained in the Loan Documents shall survive any termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents until Full Payment of the Obligations. Notwithstanding Full Payment of the Obligations, Agent shall not be required to terminate its Liens in any Collateral unless, with respect to any damages Agent may incur as a result of the dishonor or return of Payment Items applied to Obligations, Agent receives (a) a written agreement, executed by Borrowers and any Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Agent and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its discretion, deems necessary to protect against any such damages.",
"The provisions of Sections 2.3, 3.4, 3.6, 3.7, 3.9, 5.4, 5.8, 12, 14.2 and this Section, and the obligation of each Obligor and Lender with respect to each indemnity given by it in any Loan Document, shall survive Full Payment of the Obligations and any release relating to this credit facility. SECTION 5. PAYMENTS 5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars, without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes, and in immediately available funds, not later than 12:00 noon on the due date. Any payment after such time shall be deemed made on the next Business Day. Borrowers may, at the time of payment, specify to Agent the Obligations to which such payment is to be applied, but Agent shall in all events retain the right to apply such payment in such manner as Agent, subject to the provisions hereof, may determine to be appropriate. If any payment under the Loan Documents shall be stated to be due on a day other than a Business Day, the due date shall be extended to the next Business Day and such extension of time shall be included in any computation of interest and fees. Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section 3.9. Any prepayment of Loans shall be applied first to Base Rate Revolver Loans and then to LIBOR Loans.",
"5.2 Repayment of Revolver Loans. Revolver Loans shall be due and payable in full on the Revolver Termination Date, unless payment is sooner required hereunder. Revolver Loans may be prepaid from time to time, without penalty or premium. If any Asset Disposition includes the disposition of Accounts or Inventory, then Net Proceeds equal to the greater of (a) the net book value of such Accounts and Inventory, or (b) the reduction in the Borrowing Base upon giving effect to such disposition, shall be applied to the Revolver Loans. Notwithstanding anything herein to the contrary, if -37- -------------------------------------------------------------------------------- an Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an amount sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base. 5.3 Payment of Other Obligations. Obligations other than Revolver Loans, including LC Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan Documents or, if no payment date is specified, on demand. 5.4 Marshaling; Payments Set Aside.",
"None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any Obligor makes a payment to Agent or Lenders, or if Agent or any Lender receives payment from the proceeds of Collateral, exercise of setoff or otherwise, and such payment is subsequently invalidated or required to be repaid to a trustee, receiver or any other Person, then the Obligations originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been received and any enforcement or setoff had not occurred. 5.5 Post-Default Allocation of Payments. 5.5.1 Allocation.",
"Notwithstanding anything herein to the contrary, during an Event of Default, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows: (a) first, to all costs and expenses, including Extraordinary Expenses, owing to Agent; (b) second, to all amounts owing to Agent on Swingline Loans or Protective Advances; (c) third, to all amounts owing to Issuing Bank on LC Obligations; (d) fourth, to all Obligations constituting fees (excluding amounts relating to Bank Products); (e) fifth, to all Obligations constituting interest (excluding amounts relating to Bank Products); (f) sixth, to provide Cash Collateral for outstanding Letters of Credit; (g) seventh, to all other Obligations, other than Bank Product Debt; and (h) last, to Bank Product Debt. Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof and then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a pro rata basis among the Obligations in the category. The allocations set forth in this Section are solely to determine the rights and priorities of Agent and Lenders as among themselves, and may be changed by agreement among them without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Borrower. 5.5.2 Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by any Lender, such Lender hereby agrees to return it).",
"-38- -------------------------------------------------------------------------------- 5.6 Application of Payments. The ledger balance in the main Dominion Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. Each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds, and agrees that Agent shall have the continuing, exclusive right to apply and reapply same against the Obligations, in such manner as Agent deems advisable, notwithstanding any entry by Agent in its records. If, as a result of Agent’s receipt of Payment Items or proceeds of Collateral, a credit balance exists, the balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Default or Event of Default exists.",
"5.7 Loan Account; Account Stated. 5.7.1 Loan Account. Agent shall maintain in accordance with its usual and customary practices an account or accounts (“Loan Account”) evidencing the Debt of Borrowers resulting from each Loan or issuance of a Letter of Credit from time to time. Any failure of Agent to record anything in the Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder.",
"Agent may maintain a single Loan Account in the name of Borrower Agent, and each Borrower confirms that such arrangement shall have no effect on the joint and several character of its liability for the Obligations. 5.7.2 Entries Binding. Entries made in the Loan Account shall constitute presumptive evidence of the information contained therein. If any information contained in the Loan Account is provided to or inspected by any Person, then such information shall be conclusive and binding on such Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing within 30 days after receipt or inspection that specific information is subject to dispute. 5.8 Taxes.",
"If any Taxes (except Excluded Taxes) shall be payable by any party due to the execution, delivery, issuance or recording of any Loan Documents, or the creation or repayment of any Obligations, Borrowers shall pay (and shall promptly reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and penalties thereon, and will indemnify and hold harmless Indemnitees against all liability in connection therewith. If Borrowers shall be required by Applicable Law to withhold or deduct any Taxes (except Excluded Taxes) with respect to any sum payable under any Loan Documents, (a) the sum payable to Agent or such Lender shall be increased as may be necessary so that, after making all required withholding or deductions, Agent or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such withholding or deductions been made; (b) Borrowers shall make such withholding or deductions; and (c) Borrowers shall pay the full amount withheld or deducted to the relevant taxing or other authority in accordance with Applicable Law. 5.9 Withholding Tax Exemption.",
"At least five Business Days prior to the first date for payment of interest or fees hereunder to a Foreign Lender, the Foreign Lender shall deliver to Borrowers and Agent two duly completed copies of IRS Form W-8BEN or W-8ECI (or any subsequent replacement or substitute form therefor), certifying that such Lender can receive payment of Obligations without deduction or withholding of any United States federal income taxes. Each Foreign Lender shall deliver to Borrowers and Agent two additional copies of such form before the preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the form, as well as any amendments, extensions or renewals thereof as may be reasonably requested by Borrowers or Agent, in each case, certifying that the Foreign Lender can receive payment of Obligations without deduction or withholding of any such taxes, unless an event (including any change in treaty or law) has occurred that renders such forms inapplicable or prevents the Foreign Lender from certifying that it can receive payments without deduction or withholding of such taxes.",
"During any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any change in treaty or law) that occurs after it becomes a Lender, Agent may withhold taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and -39- -------------------------------------------------------------------------------- Borrowers shall not be required to pay any additional amounts under this Section as a result of such withholding. 5.10 Nature and Extent of Each Borrower’s Liability. 5.10.1 Joint and Several Liability; Obligations Absolute. Each Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders the prompt payment and performance of, all Obligations and all agreements under the Loan Documents.",
"Each Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and performance and not of collection, that such obligations shall not be discharged until Full Payment of the Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Obligor is or may become a party or liable; (b) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for the Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of all Obligations.",
"In furtherance of the foregoing and without limiting the generality thereof, each Borrower agrees that: (i) Agent and any Lender may enforce this obligation upon the occurrence of an Event of Default hereunder notwithstanding the existence of any dispute between any other Borrower and Agent or any Lender with respect to the existence of such Event of Default; (ii) the obligations of each Borrower hereunder are independent of each of the obligations of each other Borrower under the Loan Documents and the obligations of any other Person and a separate action or actions may be brought and prosecuted against each Borrower whether or not any action is brought against any other Borrower or any other Person and whether or not any other Borrower or any other Person is joined in any such action or actions; and (iii) a payment of a portion, but not all, of the Obligations by any Borrower shall in no way limit, affect, modify or abridge the liability of such or any other Borrower for any portion of the Obligations that has not been paid. Each Borrower agrees that its obligation under this Section 5.10.1 with respect to the obligations of each other Borrower is a continuing guaranty and shall be binding upon each Borrower and its successors and assigns, and each Borrower irrevocably waives any right to revoke its obligations under this Section 5.10.1 as to future transactions giving rise to any Obligations.",
"5.10.2 Actions by Agent and the Lenders. Agent and any Lender may from time to time, without notice or demand and without affecting the validity or enforceability of this Section 5.10 or giving rise to any limitation, impairment or discharge of any Borrower’s liability hereunder (a) renew, extend, accelerate or otherwise change the time, place, manner or terms of payment of the Obligations of any other Borrower with the consent of such other Borrower, (b) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations of any other Borrower or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations, (c) request and accept other guaranties of the Obligations of any other Borrower and take and hold security for the payment of such Obligations, (d) release, exchange, compromise, subordinate or modify, with or without consideration, any security for payment of the Obligations of any other Borrower, any other guaranties of such Obligations, or any other obligation of any Person with respect to such Obligations, (e) enforce and apply any security now or hereafter held from any other Borrower by or for the benefit of Agent or any Lender in respect of the Obligations of any -40- -------------------------------------------------------------------------------- other Borrower and direct the order or manner of sale thereof, or exercise any other right or remedy that Agent or the Lenders, or any of them, may have against any such security, in each case as Agent or the Lenders in their discretion may determine consistent with this Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable and (f) exercise any other rights available to Agent or the Lenders, or any of them, under the Loan Documents.",
"5.10.3 No Discharge. The obligations of each Borrower under this Section 5.10 shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including the occurrence of any of the following, whether or not any Borrower shall have had notice or knowledge of any of them: (a) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations of any other Borrower or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of such Obligations, (b) any waiver or modification of, or any consent to departure from, any of the terms or provisions of this Agreement or any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Obligations of any other Borrower, (c) the Obligations of any other Borrower, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (d) the application of payments received from any source to the payment of indebtedness other than the Obligations of any other Borrower, even though Agent or the Lenders, or any of them, might have elected to apply such payment to any part or all of the Obligations of any other Borrower, (e) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Obligations of any other Borrower, (f) any defenses, set-offs or counterclaims which any other Borrower or any other Person may assert against Agent or any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury and (g) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Borrower as an obligor in respect of the Obligations.",
"5.10.4 Waivers.",
"Each Borrower waives, for the benefit of Agent and each Lender: (a) any right to require Agent or any Lender, as a condition of payment or performance by such Borrower, to (i) proceed against any other Borrower or any other Person, (ii) proceed against or exhaust any security held from any other Borrower or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of Agent or any Lender in favor of any other Borrower or any other Person, or (iv) pursue any other remedy in the power of Agent or any Lender; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any other Borrower including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any other Borrower from any cause other than payment in full of the Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon Agent’s or any Lender’s errors or omissions in the administration of the Obligations, except behavior that amounts to gross negligence or willful misconduct; (e) (i) any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of this Section 5.10 and any legal or equitable discharge of such Borrower’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Borrower’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Section 5.10, notices of default under this Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to any other Borrower and -41- -------------------------------------------------------------------------------- notices of any of the matters referred to in Sections 5.10.2 and 5.10.3 and any right to consent to any thereof; and (g) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Section 5.10.",
"As used in this paragraph, any reference to “the principal” includes each Borrower and any reference to “the creditor” includes Agent and each of the Lenders. In accordance with Section 2856 of the California Civil Code each Borrower waives any and all rights and defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code, including any and all rights or defenses such Borrower may have because the Obligations are secured by real property or by reason of protection afforded to the principal with respect to any of the Obligations, or to any other guarantor of any of the Obligations with respect to any of such guarantor’s obligations under its guaranty, in either case pursuant to the antideficiency or other laws of the State of California limiting or discharging the principal’s indebtedness or such guarantor’s obligations, including Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Consequently, among other things: (1) the creditor may collect from such Borrower without first foreclosing on any real or personal property collateral pledged by the principal; and (2) if the creditor forecloses on any real property collateral pledged by the principal: (x) the amount of the Obligations may be reduced only by the price for which the collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price and (y) the creditor may collect from such Borrower even if the creditor, by foreclosing on the real property collateral, has destroyed any right such Borrower may have to collect from the principal.",
"This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by real property. Each Borrower also waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for an Obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise; and even though that election of remedies by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any other guarantor of any of the Obligations, has destroyed such Borrower’s rights of contribution against such other Borrower or any other guarantor. No other provision of this Section 5.10 shall be construed as limiting the generality of any of the covenants and waivers set forth in this paragraph.",
"5.10.5 Borrowers’ Rights of Subrogation, Contribution, Etc. ; Subordination of Other Obligations. Each Borrower waives any claim, right or remedy, direct or indirect, that such Borrower now has or may hereafter have against any other Borrower or any of its assets in connection with this Section 5.10 or the performance by such Borrower of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute (including under California Civil Code Section 2847, 2848 or 2849), under common law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Borrower now has or may hereafter have against any other Borrower, (b) any right to enforce, or to participate in, any claim, right or remedy that Agent or any Lender now has or may hereafter have against any other Borrower and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by Agent or any Lender. In addition, until the Obligations shall have been paid in full, the Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Borrower shall withhold exercise of any right of contribution such Borrower may have against any other Borrower.",
"Each Borrower further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Borrower may have against any other Borrower or against any collateral or security, and any rights of contribution such Borrower may have against such other Borrower, shall be junior and subordinate to any rights Agent or any Lender may have against such Borrower to all right, title and interest Agent or any Lender may have in any such collateral or security, and to any right Agent or any Lender may have against such other Borrower.",
"-42- -------------------------------------------------------------------------------- Any indebtedness of any other Borrower now or hereafter held by any Borrower is subordinated in right of payment to the Obligations, and any such indebtedness of such other Borrower to such Borrower collected or received by such Borrower after an Event of Default has occurred and is continuing, and any amount paid to any Borrower on account of any subrogation, reimbursement, indemnification or contribution rights referred to in the preceding paragraph when all Obligations have not been paid in full, shall be held in trust for Agent and the Lenders and shall forthwith be paid over to Agent for the benefit of the Lenders to be credited and applied against the Obligations. 5.10.6 Extent of Liability; Contribution.",
"(a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this Section 5.10 shall be limited to the greater of (i) all amounts for which such Borrower is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount. (b) If any Borrower makes a payment under this Section 5.10 of any Obligations (other than amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum amount that could then be recovered from such Borrower under this Section 5.10 without rendering such payment voidable or avoidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law. (c) Nothing contained in this Section 5.10 shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Obligations relating to Letters of Credit issued to support such Borrower’s business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder.",
"Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of such Loans and Letters of Credit to such Borrower. 5.10.7 Joint Enterprise. Each Borrower has requested that Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease the administration of their relationship with Lenders, all to the mutual advantage of Borrowers. Borrowers acknowledge and agree that Agent’s and Lenders’ willingness to extend credit to Borrowers and to administer the Collateral on a combined basis, as set forth herein, is done solely as an accommodation to Borrowers and at Borrowers’ request.",
"SECTION 6. CONDITIONS PRECEDENT 6.1 Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied: -43- -------------------------------------------------------------------------------- (a) Revolver Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Revolver Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) [Intentionally Omitted.] (c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent. (d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.",
"(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) Agent shall have received a written opinion of General Counsel of Borrowers, in form and substance satisfactory to Agent. (g) Agent shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or another official of such Obligor’s jurisdiction of organization.",
"Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification. (h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers and their Subsidiaries, all in compliance with the Loan Documents, outlining all material insurance coverage maintained by the Borrowers and their Subsidiaries, including directors and officers insurance coverage and all insurance required to be maintained pursuant to Sections 8.6.2 and 10.1.7.",
"Agent, on behalf of Lenders, shall have been named as additional insured, mortgagee and/or loss payee thereunder (other than any directors and officers insurance and life insurance) to the extent required under Sections 8.6.2 and 10.1.7. (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination and completion of its collateral audit with respect to Inventory and Accounts, with results satisfactory to Agent. Except as disclosed in the Draft Financial Statements, no material adverse change in the financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2004. (j) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.",
"(k) Agent shall have received a Borrowing Base Certificate prepared as of March 24, 2006. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the -44- -------------------------------------------------------------------------------- payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $5,500,000. (l) Borrowers shall have (a) repaid in full all outstanding Debt of Borrowers under the Existing Credit Agreement and all other outstanding Debt of Borrowers (other than Permitted Debt described in Section 10.2.1), (b) terminated any commitments to lend or make other extensions of credit thereunder (other than Permitted Debt described in Section 10.2.1), (c) delivered to Agent all documents or instruments necessary to release all Liens securing existing Debt or other obligations of Borrowers thereunder (other than Permitted Debt described in Section 10.2.1), and (d) made arrangements satisfactory to Agent with respect to the cancellation of any letters of credit outstanding thereunder (other than the Existing Letters of Credit) or the issuance of Letters of Credit to support the obligations of Borrowers and their respective Subsidiaries with respect thereto.",
"Borrowers shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrowers and Agent). (m) Agent shall have received evidence satisfactory to it that Borrowers shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of Agent, desirable in order to create in favor of Agent, for the benefit of Lenders, a valid and perfected first priority security interest in the Collateral. Such actions shall include the following: (i) Schedules to Security Documents. Delivery to Agent of accurate and complete schedules to all of the applicable Security Documents.",
"(ii) Stock Certificates and Instruments. Delivery to Agent of (a) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Agent) representing all capital stock pledged pursuant to the Security Documents, and (b) all promissory notes (including a master intercompany note) or other instruments (duly endorsed, where appropriate, in a manner satisfactory to Agent) evidencing any Collateral. (iii) Lien Searches and UCC Termination Statements. Delivery to Agent of (a) the results of a recent search, by a Person satisfactory to Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal or mixed property of each Obligor, together with copies of all such filings disclosed by such search, and (b) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than Permitted Liens).",
"(iv) UCC Financing Statements and Fixture Filings. Delivery to Agent of acknowledgements of all filings and recordations of UCC financing statements and, where appropriate, fixture filings, duly executed by each applicable Obligor with respect to all personal and mixed property Collateral of such Obligor, in all jurisdictions as may be necessary or, in the opinion of Agent, desirable to perfect the security interests created in such Collateral pursuant to the Security Documents. (v) Cash Management. Delivery to Agent of lock box agreements in form and substance satisfactory to Agent and Deposit Account Control Agreements executed by each Person that is a party thereto with respect to the Deposit Accounts listed therein. -45- -------------------------------------------------------------------------------- (vi) Securities Accounts. Delivery to Agent of Securities Account Control Agreements, in form and substance satisfactory to Agent, executed by each Person that is a party thereto with respect to each of the Securities Accounts of each applicable Borrower. (n) Borrowers shall have delivered to Agent any Lien Waivers as may be reasonably required by Agent.",
"(o) Borrowers shall have delivered an accurate copy of each Related Document, together with any amendments, exhibits and schedules thereto. (p) Each Obligors shall have obtained all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and the continued operation of the business conducted by Borrowers and their Subsidiaries in substantially the same manner as conducted prior to the Closing Date. Each such Governmental Approval or consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Approval or consent, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents.",
"No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired. (q) There shall not be pending or, to the knowledge of any Senior Officer of any Borrower, threatened, any action, suit, proceeding, governmental investigation or arbitration against or affecting Borrowers or any of their Subsidiaries or any property of Borrowers or any of their Subsidiaries that has not been disclosed to Agent by Borrowers in writing prior to the execution of this Agreement, and there shall have occurred no development not so disclosed in any such action, suit, proceeding, governmental investigation or arbitration so disclosed, that, in either event, in the opinion of Agent could reasonably be expected to have a Material Adverse Effect; and no injunction or other restraining order shall have been issued and no hearing to cause an injunction or other restraining order to be issued shall be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement or the making of Revolver Loans hereunder. (r) Agent shall have received and be satisfied with such other information as Agent may reasonably request. 6.2 Conditions Precedent to All Credit Extensions.",
"Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Borrowers, unless the following conditions are satisfied: (a) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant; (b) The representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date); (c) All conditions precedent in any other Loan Document shall be satisfied; (d) No event shall have occurred or circumstance exist that has or could reasonably be expected to have a Material Adverse Effect; and -46- -------------------------------------------------------------------------------- (e) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied. Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation shall constitute a representation by Borrowers that the foregoing conditions are satisfied on the date of such request and on the date of such funding, issuance or grant.",
"As an additional condition to any funding, issuance or grant, Agent shall have received such other information, documents, instruments and agreements as it deems appropriate in connection therewith. 6.3 Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or Lenders fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Bank and Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of conditions or otherwise. SECTION 7. COLLATERAL 7.1 Grant of Security Interest.",
"To secure the prompt payment and performance of all Obligations, each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all personal Property of such Borrower, including all of the following Property, whether now owned or hereafter acquired, and wherever located: (a) all Accounts; (b) all Chattel Paper, including electronic chattel paper; (c) all Commercial Tort Claims; (d) all Deposit Accounts and Securities Accounts; (e) all Documents; (f) all General Intangibles, including Payment Intangibles, Software and Intellectual Property; (g) all Goods, including Inventory, Equipment and fixtures; (h) all Instruments; (i) all Investment Property; (j) all Letter-of-Credit Rights; (k) all Supporting Obligations; (l) all monies, whether or not in the possession or under the control of Agent, a Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral; (m) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and -47- -------------------------------------------------------------------------------- (n) all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) pertaining to the foregoing.",
"7.2 Lien on Deposit Accounts; Cash Collateral. 7.2.1 Deposit Accounts and Securities Accounts. To further secure the prompt payment and performance of all Obligations, each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all of such Borrower’s right, title and interest in and to each Deposit Account and Securities Account of such Borrower and any deposits or other sums at any time credited to any such Deposit Account or Securities Account, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Each Borrower authorizes and directs each bank or other depository to deliver to Agent, on a daily basis, all balances in each Deposit Account maintained by such Borrower with such depository for application to the Obligations then outstanding. Each Borrower irrevocably appoints Agent as such Borrower’s attorney-in-fact to collect such balances to the extent any such delivery is not so made. 7.2.2 Cash Collateral.",
"Any Cash Collateral may be invested, in Agent’s discretion, in Cash Equivalents, but Agent shall have no duty to do so, regardless of any agreement, understanding or course of dealing with any Borrower, and shall have no responsibility for any investment or loss. Each Borrower hereby grants to Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Obligations, whether such Cash Collateral is held in the Cash Collateral Account or elsewhere. Agent may apply Cash Collateral to the payment of any Obligations, in such order as Agent may elect, as they become due and payable. The Cash Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent.",
"No Borrower or other Person claiming through or on behalf of any Borrower shall have any right to any Cash Collateral, until Full Payment of all Obligations. 7.3 Real Estate Collateral. The Obligations shall also be secured by Mortgages upon all Real Estate owned by Borrowers, including the Real Estate listed on Schedule 7.3. The Mortgages shall be duly recorded, at Borrowers’ expense, in each office where such recording is required to constitute a fully perfected Lien on the Real Estate covered thereby. If any Borrower acquires Real Estate hereafter, Borrowers shall, within 30 days, execute, deliver and record a Mortgage sufficient to create a first priority Lien in favor of Agent on such Real Estate, and shall deliver all Related Real Estate Documents within such 30 days.",
"7.4 Other Collateral. 7.4.1 Commercial Tort Claims. Borrowers shall promptly notify Agent in writing if any Borrower has a Commercial Tort Claim (other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less than $250,000) and, upon Agent’s request, shall promptly execute such documents and take such actions as Agent deems appropriate to confer upon Agent (for the benefit of Secured Parties) a duly perfected, first priority Lien upon such claim. 7.4.2 Certain After-Acquired Collateral. Borrowers shall promptly notify Agent in writing if, after the Closing Date, any Borrower obtains any interest in any Collateral consisting of Deposit Accounts, Chattel Paper, Documents, Instruments, Intellectual Property, Investment Property or Letter-of-Credit Rights and, upon Agent’s request, shall promptly execute such documents and take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral, including obtaining any appropriate possession, control agreement or Lien Waiver. If any Collateral is in the possession of a third party, at Agent’s request, Borrowers shall obtain an acknowledgment that such third party holds the Collateral for the benefit of Agent.",
"-48- -------------------------------------------------------------------------------- 7.5 No Assumption of Liability. The Lien on Collateral granted hereunder is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Borrowers relating to any Collateral. 7.6 Further Assurances. Promptly upon request, Borrowers shall deliver such instruments, assignments, title certificates, or other documents or agreements, and shall take such actions, as Agent deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Borrower authorizes Agent to file any financing statement that indicates the Collateral as “all assets” or “all personal property” of such Borrower, or words to similar effect, and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral. 7.7 Foreign Subsidiary Stock. Notwithstanding Section 7.1, the Collateral shall include only 65% of the voting stock of any Foreign Subsidiary.",
"SECTION 8. COLLATERAL ADMINISTRATION 8.1 Borrowing Base Certificates. Unless extended in writing by Agent in its sole discretion, by Wednesday (or, if the preceding Monday or Friday is not a Business Day, then Thursday) of each week, Borrowers shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous week, with such supporting schedules and at such other times as Agent may request. All calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrowers and certified by a Senior Officer, provided that Agent may from time to time review and adjust any such calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (c) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve.",
"8.2 Administration of Accounts. 8.2.1 Records and Schedules of Accounts. Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent, on such periodic basis as Agent may request (and in any event no less frequently than on a weekly basis) a sales and collections report, in form satisfactory to Agent. Each Borrower shall also provide to Agent, on or before Wednesday (or, if the preceding Monday or Friday is not a Business Day, then Thursday) of each week (unless extended in writing by Agent in its sole discretion), a detailed aged trial balance of all Accounts as of the end of the preceding week, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate face amount of $250,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly (and in any event within one Business Day) after any Borrower has knowledge thereof.",
"8.2.2 Taxes. If an Account of any Borrower includes a charge for any Taxes, Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Borrower and to charge Borrowers therefor; provided, however, that neither Agent nor Lenders shall be liable for any Taxes that may be due from Borrowers or with respect to any Collateral. 8.2.3 Account Verification. Whether or not a Default or Event of Default exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent or any Borrower to verify the validity, amount or any other matter relating to any Accounts of Borrowers by mail, telephone or -49- -------------------------------------------------------------------------------- otherwise.",
"Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such verification process. 8.2.4 Maintenance of Dominion Account. Borrowers shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Agent. Borrowers shall obtain an agreement (in form and substance satisfactory to Agent) from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or Dominion Account, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account and, if such Dominion Account is not maintained with Bank of America, requiring immediate transfer of all funds in the Dominion Account to a Dominion Account maintained with Bank of America, and waiving offset rights of such servicer or bank against any funds in the lockbox or Dominion Account, except offset rights for customary administrative charges. Neither Agent nor Lenders assume any responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank. 8.2.5 Proceeds of Collateral. Borrowers shall request in writing and otherwise take all reasonable steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account).",
"If any Borrower or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account. 8.3 Administration of Inventory. 8.3.1 Records and Reports of Inventory. Each Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent inventory reports in form satisfactory to Agent, on such periodic basis as Agent may request (and in any event no less frequently than on a monthly basis).",
"Each Borrower shall conduct a physical inventory at least once per calendar year (and on a more frequent basis if requested by Agent when an Event of Default exists) and periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request. Agent may participate in and observe each inventory or physical count. 8.3.2 Returns of Inventory. During Inventory Borrowing Period, no Borrower shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or would result therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds $100,000; and (d) any payment received by a Borrower for a return is promptly remitted to Agent for application to the Obligations.",
"8.3.3 Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any Inventory on consignment or approval, and shall take all steps to assure that all Inventory is produced in accordance with Applicable Law, including the FLSA. No Borrower shall sell any Inventory on consignment or approval or any other basis under which the customer may return or require a Borrower to repurchase such Inventory (other than customary right of customers to return merchandise in the Ordinary Course of Business). Borrowers shall use, store and maintain all Inventory with reasonable care and caution, in accordance with applicable standards of any insurance and in conformity with all Applicable Law, and shall make current rent payments (within applicable grace periods provided for in leases) at all locations where any Collateral is located. -50- -------------------------------------------------------------------------------- 8.4 Administration of Equipment.",
"8.4.1 Records and Schedules of Equipment. Each Borrower shall keep accurate and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may request, a current schedule thereof, in form satisfactory to Agent. Promptly upon request, Borrowers shall deliver to Agent evidence of their ownership or interests in any Equipment. 8.4.2 Dispositions of Equipment. No Borrower shall sell, lease or otherwise dispose of any Equipment, without the prior written consent of Agent, other than (a) a Permitted Asset Disposition; and (b) replacement of Equipment that is worn, damaged or obsolete with Equipment of like function and value, if the replacement Equipment is acquired substantially contemporaneously with such disposition and is free of Liens other than Purchase Money Liens securing Permitted Purchase Money Debt.",
"8.4.3 Condition of Equipment. The Equipment is in good operating condition and repair, and all necessary replacements and repairs have been made so that the value and operating efficiency of the Equipment is preserved at all times, reasonable wear and tear excepted. Each Borrower shall ensure that the Equipment is mechanically and structurally sound, and capable of performing the functions for which it was designed, in accordance with the manufacturer’s published and recommended specifications. No Borrower shall permit any Equipment to become affixed to real Property unless any landlord or mortgagee delivers a Lien Waiver or similar instrument. 8.5 Administration of Deposit Accounts; Securities Accounts. Schedule 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Borrowers, including all Dominion Accounts.",
"Each Borrower shall take all actions necessary to establish Agent’s control of each such Deposit Account and such Securities Account (other than an account exclusively used for payroll, payroll taxes or employee benefits, or an account containing not more that $10,000 at any time). Each Borrower shall be the sole account holder of each Deposit Account and Securities Account and shall not allow any other Person (other than Agent) to have control over a Deposit Account or a Securities Account or any Property deposited therein.",
"Each Borrower shall promptly notify Agent of any opening or closing of a Deposit Account or a Securities Account and, with the consent of Agent, will amend Schedule 8.5 to reflect same. 8.6 General Provisions. 8.6.1 Location of Collateral. All tangible items of Collateral, other than Inventory in transit, shall at all times be kept by Borrowers at the business locations set forth in Schedule 8.6.1, except that Borrowers may (a) make sales or other dispositions of Collateral in accordance with Section 10.2.6; and (b) move Collateral to another location in the United States, upon 30 Business Days prior written notice to Agent. 8.6.2 Insurance of Collateral; Condemnation Proceeds.",
"(a) Each Borrower shall maintain insurance with respect to the Collateral, covering casualty, hazard, public liability, theft, malicious mischief, and such other risks, in such amounts, with such endorsements, and with such insurers (rated A+ or better by A.M. Best Rating Guide) as are satisfactory to Agent. All proceeds under each policy shall be payable to Agent. From time to time upon request, Borrowers shall deliver to Agent the originals or certified copies of its insurance policies. Unless Agent shall agree otherwise, each policy shall include satisfactory endorsements (i) showing Agent as sole loss payee or additional insured, as appropriate; (ii) requiring 30 days prior written notice to Agent in the event of cancellation of the policy for any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by any act or neglect of any Borrower or the owner of the Property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy.",
"If any Borrower fails to provide and pay for such insurance, Agent may, at its option, but shall -51- -------------------------------------------------------------------------------- not be required to, procure the insurance and charge Borrowers therefor. Each Borrower agrees to deliver to Agent, promptly as rendered, copies of all reports made to insurance companies. While no Event of Default exists, Borrowers may settle, adjust or compromise any insurance claim, as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be authorized to settle, adjust and compromise such claims. (b) Any proceeds of insurance (other than proceeds from workers’ compensation or D&O insurance or proceeds related to a Permitted Lien which are expressly required by the terms of the document under which such Permitted Lien was created to be used to repay the Debt secured by such Permitted Lien upon the occurrence of the event which resulted in such proceeds (so long as such Debt is permanently reduced thereby)) and any awards arising from condemnation of any Collateral shall be deposited into the Dominion Account. Any such proceeds or awards that relate to Inventory shall be applied to payment of the Revolver Loans, and then to any other Obligations outstanding.",
"Subject to clause (c) below, any proceeds or awards that relate to Equipment or Real Estate shall be applied first to Revolver Loans and then to other Obligations. (c) If requested by Borrowers in writing within 15 days after Agent’s receipt of any insurance proceeds or condemnation awards relating to any loss or destruction of Equipment or Real Estate, Borrowers may use such proceeds or awards to repair or replace such Equipment or Real Estate (and until so used, the proceeds shall be held by Agent as Cash Collateral) as long as (i) no Default or Event of Default exists; (ii) such repair or replacement is promptly undertaken and concluded, in accordance with plans satisfactory to Agent; (iii) replacement buildings are constructed on the sites of the original casualties and are of comparable size, quality and utility to the destroyed buildings; (iv) the repaired or replaced Property is free of Liens, other than Permitted Liens that are not Purchase Money Liens; (v) Borrowers comply with disbursement procedures for such repair or replacement as Agent may reasonably require; and (vi) the aggregate amount of such proceeds or awards from any single casualty or condemnation does not exceed $250,000. 8.6.3 Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Borrowers.",
"Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Borrowers’ sole risk. 8.6.4 Defense of Title to Collateral. Each Borrower shall at all times defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands whatsoever, except Permitted Liens. 8.7 Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Borrower’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section.",
"Agent, or Agent’s designee, may, without notice and in either its or a Borrower’s name, but at the cost and expense of Borrowers: (a) Endorse a Borrower’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and (b) During an Event of Default, (i) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts, by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to -52- -------------------------------------------------------------------------------- collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv) take control, in any manner, of any proceeds of Collateral; (v) prepare, file and sign a Borrower’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail addressed to a Borrower, and notify postal authorities to change the address for delivery thereof to such address as Agent may designate; (vii) endorse any Chattel Paper, Document, Instrument, invoice, freight bill, bill of lading, or similar document or agreement relating to any Accounts, Inventory or other Collateral; (viii) use a Borrower’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix) use the information recorded on or contained in any data processing equipment and computer hardware and software relating to any Collateral; (x) make and adjust claims under policies of insurance; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of credit or banker’s acceptance for which a Borrower is a beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill any Borrower’s obligations under the Loan Documents.",
"SECTION 9. REPRESENTATIONS AND WARRANTIES 9.1 General Representations and Warranties. To induce Agent and Lenders to enter into this Agreement and to make available the Revolver Commitments, Loans and Letters of Credit, each Borrower represents and warrants that: 9.1.1 Existence and Qualification; Power. Each Borrower and its Subsidiaries is a corporation, duly organized, validly existing and in good standing under the laws of the state of its organization as specified in Schedule 9.1.4 annexed hereto, has the corporate power and authority to own and operate its properties, to lease the properties it operates and to conduct its business, is duly qualified and in good standing under the Applicable Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that that lack of good standing in any jurisdiction does not have a Material Adverse Effect.",
"9.1.2 Power; Authority; Enforceable Obligations. (a) Each Obligor has the corporate power and authority to make, deliver and perform each Loan Document to which it is a party and each Borrower has power and authority to borrow hereunder and has taken all necessary action to authorize the borrowings on the terms and conditions of this Agreement and each Obligor has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents to which it is a party. (b) No Governmental Approval is required in connection with the Borrowings hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the other Loan Documents.",
"(c) The Loan Documents have been duly executed and delivered by each Obligor which is a party thereto, and constitute a legal, valid and binding obligation of each Obligor party thereto, enforceable against each such Obligor in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles. 9.1.3 No Legal Bar. The execution, delivery, and performance by each Obligor of the Loan Documents to which it is a party and compliance with the provisions thereof have been duly authorized by all requisite action on the part of such Obligor and do not and will not (i) violate or conflict with, or result in a breach of, or require any consent under (x) any Organic Documents or charter documents of such Obligor or any of its Subsidiaries, (y) any Applicable Laws, rules, or regulations or any order, writ, injunction, or decree of any Governmental Authority or arbitrator applicable to such -53- -------------------------------------------------------------------------------- Obligor, or (z) any material Contractual Obligation of such Obligor or any of its Subsidiaries or by which any of them or any of their property is bound or subject, (ii) constitute a default under any such Contractual Obligation, or (iii) result in, or require, the creation or imposition of any Lien on any of the properties of such Obligor or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of the Agent on behalf of Lenders).",
"9.1.4 Capital Structure. Schedule 9.1.4 shows, for each Borrower and Subsidiary, its name, its jurisdiction of organization, its authorized and issued Equity Interests, the holders of its Equity Interests (other than EMAK), and all agreements binding on such holders with respect to their Equity Interests. Each Borrower and Subsidiary has good title to its Equity Interests in its Subsidiaries, subject only to Agent’s Lien, and all such Equity Interests are duly issued, fully paid and non-assessable none of such Equity Interest constitute Margin Stock. There are no outstanding options to purchase, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to any Equity Interests of any Borrower or Subsidiary (other than EMAK).",
"As of the Closing date, no Borrower or Subsidiary has any equity investment in any other Person other than specifically disclosed in Schedule 9.1.4. 9.1.5 Corporate Names; Locations. During the five years preceding the Closing Date, except as shown on Schedule 9.1.5, no Borrower or Subsidiary has been known as or used any corporate, fictitious or trade names, has been the surviving corporation of a merger or combination, or has acquired any substantial part of the assets of any Person. The chief executive offices and other places of business of Borrowers and Subsidiaries are shown on Schedule 8.6.1. During the five years preceding the Closing Date, no Borrower or Subsidiary has had any other office or place of business. 9.1.6 Title to Properties; Priority of Liens. Each Borrower and Subsidiary has good and marketable title to (or valid leasehold interests in) all of its Real Estate, and good title to all of its personal Property, including all Property reflected in any financial statements delivered to Agent or Lenders, in each case free of Liens except Permitted Liens. Each Borrower and Subsidiary has paid and discharged all lawful claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens. All Liens of Agent in the Collateral are duly perfected, first priority Liens, subject only to Permitted Liens that are expressly allowed to have priority over Agent’s Liens. As of the Closing Date, Schedule 7.3 annexed hereto contains a true, accurate and complete list of (i) all fee Real Estate owned by any Obligor, and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate of any Obligor, regardless of whether such Obligor is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment.",
"9.1.7 Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Borrowers with respect thereto. Borrowers warrant, with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that: (a) it is genuine and in all respects what it purports to be, and is not evidenced by a judgment; (b) it arises out of a completed, bona fide sale and delivery of goods or rendition of services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto; (c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition of services, a copy of which has been furnished or is available to Agent on request; -54- -------------------------------------------------------------------------------- (d) it is not subject to any offset, Lien (other than Agent’s Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect; (e) no purchase order, agreement, document or Applicable Law restricts assignment of the Account to Agent (regardless of whether, under the UCC, the restriction is ineffective); (f) no extension, compromise, settlement, modification, credit, deduction or return has been authorized with respect to the Account, except discounts or allowances granted in the Ordinary Course of Business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to Agent hereunder; and (g) to the best of Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectibility of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Account Debtor’s financial condition.",
"9.1.8 Financial Statements. The consolidated and consolidating balance sheets, and related statements of income, cash flow and shareholder’s equity, of Borrowers and Subsidiaries that have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with GAAP, and fairly present the financial positions and results of operations of Borrowers and Subsidiaries at the dates and for the periods indicated. All projections delivered from time to time to Agent and Lenders have been prepared in good faith, based on reasonable assumptions in light of the circumstances at such time. Except as disclosed in the Draft Financial Statements attached hereto as Schedule 9.1.8, since December 31, 2004, there has been no change in the condition, financial or otherwise, of any Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect. No financial statement delivered to Agent or Lenders at any time contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading. Each of (i) EMAK, (ii) any other Borrower that borrows directly hereunder, and (iii) EMAK and its Subsidiaries on a consolidated basis is Solvent.",
"9.1.9 Surety Obligations. No Borrower or Subsidiary is obligated as surety or indemnitor under any bond or other contract that assures payment or performance of any obligation of any Person, except as permitted hereunder. 9.1.10 Taxes. Each Borrower and Subsidiary has filed all federal, state and local tax returns and other reports that it is required by law to file, and has paid, or made provision for the payment of, all Taxes upon it, its income and its Properties that are due and payable, except to the extent being Properly Contested. The provision for Taxes on the books of each Borrower and Subsidiary is adequate for all years not closed by applicable statutes, and for its current Fiscal Year. No Obligor is a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.",
"9.1.11 Brokers. There are no brokerage commissions, finder’s fees or investment banking fees payable in connection with any transactions contemplated by the Loan Documents, and each Borrower hereby indemnifies Agent and Lenders against, and agrees that it will hold Agent and Lenders harmless from, any claim, demand or liability for any such brokerage commissions, lender’s fees or investment banking fees alleged to have been incurred in connection herewith and therewith and any expense including lease fees, expense and disbursements of counsel arising in connection with any such claim, demand or liability. -55- -------------------------------------------------------------------------------- 9.1.12 Intellectual Property. Each Borrower and Subsidiary owns or has the lawful right to use all Intellectual Property necessary for the conduct of its business, without conflict with any rights of others. There is no pending or, to any Borrower’s knowledge, threatened Intellectual Property Claim with respect to any Borrower, any Subsidiary or any of their Property (including any Intellectual Property). Except as disclosed on Schedule 9.1.12, no Borrower or Subsidiary pays or owes any Royalty or other compensation to any Person with respect to any Intellectual Property. All Intellectual Property owned, used or licensed by, or otherwise subject to any interests of, any Borrower or Subsidiary is shown on Schedule 9.1.12. To the knowledge of any Borrower, the use of the Intellectual Property by Borrowers and Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.",
"9.1.13 Governmental Approvals. Each Borrower and Subsidiary has, is in compliance with, and is in good standing with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Borrowers and Subsidiaries have complied with all foreign and domestic laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. 9.1.14 Compliance with Laws. Each Borrower and Subsidiary has duly complied, and its Properties and business operations are in compliance, in all material respects with all Applicable Law, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been no citations, notices or orders of material noncompliance issued to any Borrower or Subsidiary under any Applicable Law. No Inventory has been produced in violation of the FLSA. 9.1.15 Compliance with Environmental Laws.",
"Except as disclosed on Schedule 9.1.15, no Borrower’s or Subsidiary’s past or present operations, Real Estate or other Properties are subject to any federal, state or local investigation to determine whether any remedial action is needed to address any environmental pollution, hazardous material or environmental clean-up. No Borrower or Subsidiary has received any Environmental Notice. No Borrower or Subsidiary has any contingent liability with respect to any Environmental Release, environmental pollution or hazardous material on any Real Estate now or previously owned, leased or operated by it. The representations and warranties contained in the Environmental Agreement (if any) are true and correct on the Closing Date.",
"9.1.16 Insurance. The properties of each Borrower and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Borrower or such Subsidiary operates, and all other insurance required to be maintained pursuant to Section 10.1.7. 9.1.17 Burdensome Contracts. No Borrower or Subsidiary is a party or subject to any contract, agreement or charter restriction that could reasonably be expected to have a Material Adverse Effect. No Borrower or Subsidiary is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.17, none of which prohibit the execution or delivery of any Loan Documents by an Obligor nor the performance by an Obligor of any obligations thereunder. 9.1.18 Litigation. Except as shown on Schedule 9.1.18, there are no proceedings or investigations pending or, to any Borrower’s knowledge, threatened against any Borrower or Subsidiary, or any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined adversely to any Borrower or Subsidiary.",
"No Borrower or Subsidiary is in default with respect to any order, injunction or judgment of any Governmental Authority. -56- -------------------------------------------------------------------------------- 9.1.19 No Defaults. To the knowledge of Borrowers, no event or circumstance has occurred or exists that constitutes a Default or Event of Default. No Borrower or Subsidiary is in default, and no event or circumstance has occurred or exists that with the passage of time or giving of notice would constitute a default, under any Material Contract or any other Related Document or in the payment of any Borrowed Money. To the knowledge of Borrowers, there is no basis upon which any party (other than a Borrower or Subsidiary) could terminate a Material Contract prior to its scheduled termination date.",
"9.1.20 ERISA. Except as disclosed on Schedule 9.1.20, no Borrower or Subsidiary has any Multiemployer Plan or Foreign Plan. Each Borrower and Subsidiary is in full compliance with the requirements of all Applicable Law, including ERISA, relating to each Multiemployer Plan and Foreign Plan. No fact or situation exists that could reasonably be expected to result in a Material Adverse Effect in connection with any Multiemployer Plan or Foreign Plan. No Borrower or Subsidiary has any withdrawal liability in connection with a Multiemployer Plan or Foreign Plan. All employer and employee contributions to Foreign Plans, to the extent required by law or the terms of such plans, have been made or accrued in accordance with normal accounting principles. The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance and/or the book reserve established for each Foreign Plan, together with any accrued contributions, are sufficient to provide the accrued benefit obligations of all participants in such plans according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles.",
"Each Foreign Plan required to be registered has been registered and is maintained in good standing with all applicable regulatory authorities. 9.1.21 Trade Relations. There exists no actual or threatened termination, limitation or modification of any business relationship between any Borrower or Subsidiary and any customer or supplier, or any group of customers or suppliers, who individually or in the aggregate are material to the business of such Borrower or Subsidiary. There exists no condition or circumstance that could reasonably be expected to impair the ability of any Borrower or Subsidiary to conduct its business at any time hereafter in substantially the same manner as conducted on the Closing Date. 9.1.22 Labor Relations. Except as described on Schedule 9.1.22, no Borrower or Subsidiary is party to or bound by any collective bargaining agreement, management agreement or consulting agreement. There are no material grievances, disputes or controversies with any union or other organization of any Borrower’s or Subsidiary’s employees, or, to any Borrower’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective bargaining.",
"9.1.23 Payable Practices. No Borrower or Subsidiary has made any material change in its historical accounts payable practices from those in effect on the Closing Date. 9.1.24 Not a Regulated Entity. No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940; (b) a “holding company,” a “subsidiary company” of a “holding company,” or an “affiliate” of either, within the meaning of the Public Utility Holding Company Act of 1935; or (c) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Debt. 9.1.25 Margin Stock. No Borrower or Subsidiary is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.",
"No Loan proceeds or Letters of Credit will be used by Borrowers to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors. -57- -------------------------------------------------------------------------------- 9.1.26 Plan Assets. No Borrower is an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA or any “plan” (within the meaning of Section 4975 of the Internal Revenue Code), and neither the execution of this Agreement nor the funding of any Loans gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code.",
"9.1.27 Shareholder Agreements. As of the Closing Date, no Obligor is a party to any material agreement with Donald A. Kurz or Crown, or their Affiliates, other than, the Securities Purchase Agreement, the Warrants, the Registration Rights Agreement and the Certificate of Designation. 9.1.28 BK Agreements and Other Customer Agreements. Borrowers have delivered to Agent a copy of each BK Services Agreement, BK Supply Agreement, RSI Supply Agreement, Other Customer Agreement or, to the knowledge of Borrowers, any other written customer supply or service agreement in effect on or after the Closing Date (other than a purchase order) to the extent an Account owing to any Borrower has arisen from an Account Debtor party to such other written customer supply or service agreement or any of its Affiliates or is reasonably expected to arise from an Account Debtor party to such agreement or any of its Affiliates within 12 months from any date of determination.",
"9.1.29 Permits. Each of the Borrowers and their Subsidiaries has such certificates, permits, licenses (including trademark and other Intellectual Property licenses), franchises, consents, approvals, authorizations and clearances that are material to the condition (financial or otherwise), business or operations of any Borrower or Subsidiary (“Permits”), except to the extent the lack thereof would not have a Material Adverse Effect; and all such Permits are valid and in full force and effect and will be valid and in full force and effect immediately after the Closing Date, except for those where the failure to be valid or in effect could not reasonably be expected to result in a Material Adverse Effect.",
"Each of the Borrowers and their Subsidiaries is in compliance in all respects with its obligations under such Permits, except where failure to be in compliance could not reasonably be expected to result in a Material Adverse Effect, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination of such Permits, except where such revocation or termination could not reasonably be expected to result in a Material Adverse Effect. 9.1.30 Inventory Locations. Schedule 8.6.1 attached hereto lists all locations at which any Borrower or any of its Domestic Subsidiaries has any personal Property (including without limitation Inventory) stored or otherwise located. None of the Borrowers or any of its Subsidiaries have any personal Property (including without limitation any Inventory) stored in or otherwise located on any of the following locations: 19400 Western Avenue, Torrance, California 90502; 553-A South Joliet Road, Bollingbrook, Illinois 60440; 5335 West 74th Street, Indianapolis, Indiana 46268; and 490 Supreme Drive, Bensenville, Illinois 60106.",
"9.2 Matters Relating to Collateral. 9.2.1 Creation, Perfection and Priority of Liens. The execution and delivery of the Security Documents by each Obligor party thereto and the delivery to Agent of the Pledged Collateral (all of which Pledged Collateral has been so delivered) are effective to create in favor of Agent for the benefit of Lenders, as security for the respective Secured Obligations (as defined in the applicable Security Document in respect of any Collateral), a valid and perfected first priority Lien on all of the Collateral, and all filings and other actions necessary or desirable to perfect and maintain the perfection and first priority status of such Liens have been duly made or taken and remain in full force and effect, other than the filing of any UCC financing statements delivered to Agent for filing (but not yet filed) and the periodic filing of UCC continuation statements in respect of UCC financing statements filed by or on behalf of Agent. -58- -------------------------------------------------------------------------------- 9.2.2 Governmental Approvals. No Governmental Approval is required for either (i) the pledge or grant by any Obligor of the Liens purported to be created in favor of Agent pursuant to any of the Security Documents, or (ii) the exercise by Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created pursuant to any of the Security Documents or created or provided for by applicable law), except for filings or recordings contemplated by Section 9.2.1 and except as may be required, in connection with the disposition of any Pledged Collateral, by laws generally affecting the offering and sale of securities.",
"As of the Closing Date, Borrowers and Subsidiaries have received no written notice of any pending or threatened condemnation proceeding, exercise of the power of eminent domain by any Governmental Authority, or any similar proceeding affecting any facility or any interest therein. As of the Closing Date, no such proceeding is pending, contemplated or threatened. 9.2.3 Absence of Third-Party Filings. Except such as may have been filed in favor of Agent as contemplated by Section 9.2.1 and as set forth on Schedule 9.2.3 annexed hereto, (i) no effective UCC financing statement, fixture filing or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office, and (ii) no effective filing covering all or any part of the Intellectual Property Collateral is on file in the PTO.",
"9.2.4 Margin Stock. The pledge of the Pledged Collateral pursuant to the Security Documents does not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. 9.2.5 Information Regarding Collateral; Representations and Warranties. All information supplied to Agent by or on behalf of any Obligor with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects. All representations and warranties of the Obligors set forth in the Security Documents are true and correct. 9.3 Complete Disclosure. No statement, information, report, representation, or warranty made by any Obligor in any Loan Document or furnished to Agent or any Lender in connection with any Loan Document contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein not misleading. Any projections, budgets, and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by any Borrower or the Obligors to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results.",
"There are no facts known (or which should upon the reasonable exercise of diligence be known) to any Borrower (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby. SECTION 10. COVENANTS AND CONTINUING AGREEMENTS 10.1 Affirmative Covenants.",
"For so long as any Revolver Commitments or Obligations are outstanding, each Borrower shall, and shall cause each Subsidiary to: 10.1.1 Inspections; Appraisals. (a) Permit Agent (or any of its authorized representatives) from time to time, subject (except when a Default or Event of Default exists) to reasonable notice and normal business hours, to visit and inspect the Properties of any Borrower or Subsidiary, inspect, audit and make extracts from any Borrower’s or Subsidiary’s books and records, conduct audit field examinations and appraisals and discuss with its officers, employees, agents, advisors and independent accountants such Borrower’s or -59- -------------------------------------------------------------------------------- Subsidiary’s business, financial condition, assets, prospects and results of operations. Lenders may participate in any such visit or inspection, at their own expense. Neither Agent nor any Lender shall have any duty to any Borrower to make any inspection, nor to share any results of any inspection, appraisal or report with any Borrower. To the extent any appraisal or other information is shared by Agent or a Lender with any Borrower, such Borrower acknowledges that it was prepared by Agent and Lenders for their purposes and Borrowers shall not be entitled to rely upon it.",
"(b) Reimburse Agent for all charges, costs and expenses of Agent in connection with (i) examinations of any Obligor’s books and records or any other financial or Collateral matters as Agent deems appropriate; and (ii) appraisals of Inventory, Equipment and Real Estate (if any). Borrowers shall pay Agent’s then standard charges for each day that an employee of Agent or its Affiliates is engaged in any examination activities, and shall pay the standard charges of Agent’s internal appraisal group. This Section shall not be construed to limit Agent’s right to conduct examinations or to obtain appraisals at any time in its discretion, nor to use third parties for such purposes.",
"10.1.2 Financial and Other Information.",
"Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent and Lenders (unless extended in writing by Agent in its sole discretion): (a) as soon as available, and in any event within 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating basis for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (without qualification as to scope, “going concern” or similar items) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent; (b) as soon as available, and in any event within 45 days after the close of each Fiscal Quarter (excluding the Fiscal Quarter ending on December 31), (i) balance sheets as of the end of such Fiscal Quarter and the related statements of income, cash flow and shareholders’ equity for such Fiscal Quarter, on consolidated and consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes, and (ii) the Form 10-Q filed by Borrower Agent with the Securities and Exchange Commission with respect to such Fiscal Quarter; (c) as soon as available, and in any event within 30 days after the end of each month, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal quarter or year-end adjustments and the absence of footnotes; (d) concurrently with delivery of financial statements under clauses (a), (b) and (c) above, (i) balance sheets as of the end of the applicable period and the related statements of income, cash flow and shareholders’ equity for such period, on a consolidated basis for Borrowers and Subsidiaries (other than EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries), setting forth in comparative form corresponding figures for the preceding applicable period and certified by the chief -60- -------------------------------------------------------------------------------- financial officer (or vice president-finance or vice president-controller) of Borrower Agent as being prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such period (together with reconciliation information reconciling the exclusion of EMAK Europe Holdings, Limited and its direct and indirect Subsidiaries) and (ii) a Compliance Certificate executed by the chief financial officer (or vice president-finance or vice president-controller) of Borrower Agent; (e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such financial statements; (f) not later than the end of each Fiscal Year (and in any event prior to approval thereof by the Board of Directors of any Borrower), projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the next three Fiscal Years, year by year, and for the next Fiscal Year, month by month; (g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent; (h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower; (i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; (j) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business; (k) as soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Agent; (l) (i) no later than 20 days after the Closing Date, Borrowers shall have delivered to Agent a fully executed Collateral Access Agreement substantially in the form of Exhibit D annex hereto or as otherwise agreed to by Agent (or in cases where Borrowers have an existing Collateral Access Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and its landlord with respect to each location identified on Schedule 8.6.1, which schedule includes the locations where any Inventory (other than immaterial Inventory) is located, including locations of warehousemen and shipping companies in possession of Inventory (other than immaterial Inventory) and (ii) no later than 20 days after Agent’s request with respect to any Borrower’s location created after the Closing Date where any Inventory (other than immaterial Inventory) is located, including locations of warehousemen and shipping companies in possession of Inventory (other than immaterial Inventory), Borrowers shall have delivered to Agent a fully executed Collateral Access Agreement substantially in the form of Exhibit D annex hereto or any other form of Lien Waiver reasonably requested by Agent with respect thereto.",
"(m) (i) ten days prior to the formation of any Subsidiary or ten days prior to the consummation of any Acquisition (or such shorter period agreed to by Agent), notice of such formation or such Acquisition, together with all of the data required to be set forth in Schedule 9.1.4 annexed hereto with respect to all Borrowers and Subsidiaries (it being understood that such written notice shall be -61- -------------------------------------------------------------------------------- deemed to supplement Schedule 9.1.4 annexed hereto for all purposes of this Agreement) and such other information regarding such Subsidiary or such Acquisition as may be reasonably requested by Agent; and (ii) promptly upon any Person becoming a Subsidiary of any Borrower, a written notice setting forth with respect to such Person the date on which such Person became a Subsidiary of such Borrower; provided that nothing in this paragraph should be deemed to authorize any Acquisition and no Acquisition shall be consummated unless consented to by Agent and Required Lenders in the their sole discretion; (n) annually, within 120 days after the end of each Fiscal Year, a certificate of Borrower Agent executed by its Senior Officer (and, if requested by Agent, any insurance broker of Borrowers) setting forth the nature and extent of all insurance maintained by Borrowers and their Subsidiaries in accordance with Section 10.1.7 or any Security Documents (and which, in the case of a certificate of a broker, were placed through such broker) and certifying that Borrowers are in compliance with Sections 8.6.2(a) and 10.1.7; (o) as soon as practicable following receipt thereof, copies of all environmental audits and reports, whether prepared by personnel of Borrowers or Subsidiaries or by independent consultants, with respect to significant environmental matters at any real Property or which relate to an Environmental Notice in either case which could reasonably be expected to result in a Material Adverse Effect; (p) promptly after any Senior Officer of any Borrower knows of any actual liability (other than contractual liability incurred in purchase orders in the Ordinary Course of Business) or potential contingent liabilities where the amount involved exceeds the Threshold Amount and such actual or potential contingent liabilities are not reflected in the most recent financial statements delivered to Lenders pursuant to Sections 10.1.2(a), 10.1.2(b) or 10.1.2(c) written notice thereof; (q) promptly, and in any event within five Business Days (i) after any material change in or termination of any contractual arrangement between any Borrower on the one hand and any member of the BK Group or any other material customer of any Borrower on the other hand (including without limitation any BK Agreements), or (ii) after learning of any impending material change or termination of any contractual arrangement between any Borrower on the one hand and any member of the BK Group or any other material customer of any Borrower on the other hand (including without limitation any of the BK Agreements or any of the Other Customer Agreements), written notice thereof; (r) promptly, and in any event within five Business Days of entering into any new BK Services Agreement, BK Supply Agreement, RSI Supply Agreement, Other Customer Agreement or any other customer agreement (other than a purchase order) after the Closing Date, a copy of such agreement; (s) promptly, and in any event within five Business Days of any Borrower having any other location on which they store or otherwise place Inventory or other personal Property that is not already disclosed to Agent pursuant to Section 9.1.30 a notice of such location together with such other details reasonably satisfactory to Agent.",
"(t) promptly, and in any event before engaging any new customs broker (other than the customs broker that has executed an Imported Goods Agreement), a fully executed Imported Goods Agreement executed by the applicable Borrower(s) and such new customs broker; (u) promptly, and in any event within 20 Business Days of the Closing Date, evidence in form and substance satisfactory to Agent that the Liens set forth in Schedule 10.1.2 have been released or terminated; -62- -------------------------------------------------------------------------------- (v) promptly, and in any event within 20 Business Days of the Closing Date, a fully executed Securities Account Control Agreement (or in cases where Borrowers have an existing Securities Account Control Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and Fidelity Investments; (w) promptly, and in any event within 20 Business Days of the Closing Date, a fully executed Securities Account Control Agreement (or in cases where Borrowers have an existing Securities Account Control Agreement delivered pursuant to the Existing Credit Agreement, a confirmation thereof in form and substance satisfactory to Agent) executed by the applicable Borrower(s) and UBS or evidence in form and substance satisfactory to Agent that the relevant Securities Account has been terminated; (x) promptly, and in any event within 10 days of the Closing Date, a fully executed Imported Goods Agreement executed by any Borrower that imports Inventory into the United States and its customs broker. (y) promptly, and in any event within ten Business Days of the Closing Date, evidence in form and substance satisfactory to Agent that the Securities Account (account number 22024479) and the bank accounts (account numbers 14592-02663, 14590-29277 and 3299837643), in each case with Bank of America has been closed; and (z) promptly, such other data and information as from time to time may be reasonably requested by Agent.",
"10.1.3 Notices. Notify Agent and Lenders in writing, promptly after a Borrower’s obtaining knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement of any proceeding or investigation, whether or not covered by insurance, if an adverse determination could have a Material Adverse Effect; (b) any pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract; (c) any default under or termination of a Material Contract or any other Related Document; (d) the existence of any Default or Event of Default; (e) any material change in accounting policies or financial reporting practices of Borrowers and Subsidiaries; (f) any judgment in an amount exceeding the Threshold Amount; (g) the assertion of any Intellectual Property Claim, if an adverse resolution could have a Material Adverse Effect; (h) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), if an adverse resolution could have a Material Adverse Effect; (i) any Environmental Release by an Obligor or on any Property owned, leased or occupied by an Obligor; or receipt of any Environmental Notice; (j) the discharge of or any withdrawal or resignation by Borrowers’ independent accountants; or (k) any opening of a new office or place of business, at least 30 days prior to such opening. 10.1.4 Landlord and Storage Agreements. Upon request, provide Agent with copies of all existing agreements, and promptly after execution thereof provide Agent with copies of all future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any Collateral may be kept or that otherwise may possess or handle any Collateral.",
"10.1.5 Compliance with Laws. Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release occurs at or on any Properties of any Borrower or Subsidiary, it shall act promptly and diligently to investigate and report to Agent and all appropriate -63- -------------------------------------------------------------------------------- Governmental Authorities the extent of, and to make appropriate remedial action to eliminate, such Environmental Release, whether or not directed to do so by any Governmental Authority. 10.1.6 Taxes. Pay and discharge all Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested.",
"10.1.7 Insurance. In addition to the insurance required hereunder with respect to Collateral, maintain insurance with insurers (rated A+ or better by Best Rating Guide) satisfactory to Agent, (a) with respect to the Properties and business of Borrowers and Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as are customary for companies similarly situated, and (b) business interruption insurance in an amount not less than $2,000,000, with deductibles and subject to an Insurance Assignment satisfactory to Agent. 10.1.8 Licenses. Keep each License affecting any Collateral (including the manufacture, distribution or disposition of Inventory) or any other material Property of Borrowers and Subsidiaries in full force and effect; promptly notify Agent of any proposed modification to any such License, or entry into any new License, in each case at least 30 days prior to its effective date; pay all Royalties when due; and notify Agent of any default or breach asserted by any Person to have occurred under any License.",
"10.1.9 Future Subsidiaries. Within five Business Days of the date of the formation or on or before the date of Acquisition (provided that nothing in this paragraph shall be deemed to authorize the Acquisition of any entity) of any Subsidiary or Borrowers shall deliver, or cause to be delivered, to Agent the following items applicable to such Subsidiary, each in form and substance satisfactory to Agent: (a) If such Subsidiary is a Domestic Subsidiary, (i) an Additional Borrower counterpart of this Agreement executed by such Subsidiary in the form of Exhibit F annexed hereto, (ii) a counterpart of the Domestic Pledge Agreement executed by such Subsidiary, together with any required supplements to any schedules hereto or thereto, and (iii) the applicable items required by Sections 6.1(d) and 6.1(e) as if such Subsidiary were executing this Agreement on the date hereof and, if requested by Agent, such other items that would be required by Section 6.1 if such Subsidiary were executing this Agreement on the date hereof; provided that notwithstanding compliance with this Section 10.1.9 and any other provision of this Agreement, none of the Accounts and Inventory of such Subsidiary shall be included in Eligible Accounts and Eligible Inventory, as applicable, until such time as Agent shall have obtained field examination reports and appraisals with respect thereto in form and substance satisfactory to Agent; (b) If such Subsidiary is a Foreign Subsidiary, any required counterparts of, or supplements to, the applicable Foreign Security Agreement in order to pledge 65% of the equity interests of such Foreign Subsidiary; and (c) Such other assurances, certificates, documents, consents or opinions as Agent, Issuing Lender or the Required Lenders reasonably may require.",
"In addition, Borrowers shall execute such documents, instruments and agreements and take such other actions as Agent shall require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Subsidiary, including delivery of such legal opinions, in form and substance satisfactory to Agent, as it shall deem appropriate. 10.1.10 Preservation of Existence. Except to the extent permitted by Section 10.2.9 preserve and maintain its existence, licenses, permits, rights, franchises and privileges necessary or -64- -------------------------------------------------------------------------------- desirable in the normal conduct of its business, except where failure to do so does not have a Material Adverse Effect. 10.1.11 Maintenance of Properties. Maintain, preserve and protect all of its material Properties and Equipment necessary in the operation of its business in good order and condition, subject to wear and tear in the ordinary course of business. 10.1.12 Compliance with ERISA.",
"Except with respect to each Multiemployer Plan, (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended, and other federal or state law; (b) cause each Plan which is qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412 of the Internal Revenue Code of 1986, as amended. 10.1.13 Compliance With Agreements. Comply with all Contractual Obligations to which any one or more of them is a party, except for any such Contractual Obligations (a) the performance of which would cause a Default or Event of Default, (b) then being contested by any of them in good faith by appropriate proceedings, or (c) if the failure to comply therewith does not have a Material Adverse Effect.",
"10.1.14 Use of Proceeds. Use the proceeds of Revolver Loans solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d) for working capital and other lawful corporate purposes of Borrowers. 10.1.15 Securities Account Control Agreements. Execute and cause to be executed a Securities Account Control Agreement for any additional Securities Account established with a securities intermediary subsequent to the Closing Date within five (5) Business Days of establishment thereof.",
"10.1.16 Prodesign Marketing. Cause Prodesign Marketing Limited, a Northern Ireland company (“Prodesign”), to be liquidated within 15 months of the Closing Date and in any event (i) not transfer any assets of any Obligor to Prodesign and not guarantee any obligations of Prodesign at any time on or after the Closing Date and (ii) not permit Prodesign to own assets exceeding $10,000 in the aggregate at any time. 10.1.17 Bank Products. In order to facilitate the administration of this Agreement and Agent’s security interest in the Collateral, maintain Bank of America and its Affiliates as Borrowers’ principal depository bank, including for the maintenance of operating, administrative, cash management, collection activity and other deposit accounts for the conduct of Borrowers’ business, and as the principal provider of cash management services.",
"10.2 Negative Covenants. For so long as any Revolver Commitments or Obligations are outstanding, each Borrower shall not, and shall cause each Subsidiary not to: 10.2.1 Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except: (a) the Obligations; (b) Debt of any Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK to any other Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK; provided that (a) all such intercompany Debt shall be evidenced by promissory notes that are pledged to Agent pursuant to the terms of the applicable Security Document, (b) all such intercompany Debt owed by any such Borrower to any such other Borrower shall be subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an -65- -------------------------------------------------------------------------------- intercompany subordination agreement, and (c) any payment by any such Borrower under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any intercompany Debt owed by such Borrower to any such other Borrower for whose benefit such payment is made; (c) Permitted Purchase Money Debt; (d) Borrowed Money (other than the Obligations, Subordinated Debt and Permitted Purchase Money Debt), but only to the extent outstanding on the Closing Date and listed on Schedule 10.2.1 and not satisfied with proceeds of the initial Loans; (e) Bank Product Debt; (f) Debt of Foreign Subsidiaries to banks for working capital purposes not exceeding 5,000,000 in the aggregate at any time outstanding; (g) Permitted Contingent Obligations; (h) Refinancing Debt as long as each Refinancing Condition is satisfied; and (i) Debt that is not included in any of the preceding clauses of this Section, is not secured by a Lien and does not exceed $1,000,000 in the aggregate at any time.",
"10.2.2 Permitted Liens. (i) Create or suffer to exist any Lien or Negative Pledge upon any of its Property, except the following (collectively, “Permitted Liens”): (a) Liens in favor of Agent; (b) Purchase Money Liens securing Permitted Purchase Money Debt; (c) Liens for Taxes not yet due or being Properly Contested; (d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; (e) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts (except those relating to Borrowed Money), statutory obligations and other similar obligations, or arising as a result of progress payments under government contracts, as long as such Liens are at all times junior to Agent’s Liens; (f) Liens arising by virtue of a judgment or judicial order against any Borrower or Subsidiary, or any Property of a Borrower or Subsidiary, as long as such Liens are (i) in existence for less than 20 consecutive days or being Properly Contested, and (ii) at all times junior to Agent’s Liens; (g) easements, rights-of-way, restrictions, covenants or other agreements of record, and other similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business; -66- -------------------------------------------------------------------------------- (h) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection; (i) existing Liens and Negative Pledges shown on Schedule 10.2.2; and (j) Liens on the assets of Foreign Subsidiaries to secure the Debt permitted by Section 10.2.1(f).",
"(ii) Equitable Lien in Favor of Lenders. If Borrowers or Subsidiaries shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Liens excepted by the provisions of Section 10.2.2(i), they shall make or cause to be made effective provision whereby the Obligations will be secured by such Lien equally and ratably with any and all other Debt secured thereby as long as any such Debt shall be so secured; provided that, notwithstanding the foregoing, this covenant shall not be construed as a consent by Required Lenders to the creation or assumption of any such Lien not permitted by the provisions of Section 10.2.2(i).",
"(iii) No Further Negative Pledges. Except with respect to (i) specific property encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to an Asset Disposition, and (ii) any debt facility of a Foreign Subsidiary in connection with Indebtedness of such Foreign Subsidiary permitted by Section 10.2.1(f), enter into any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired. (iv) No Restrictions on Subsidiary Distributions to Borrowers or Other Subsidiaries. Except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.17 and except with respect to any debt facility of a Foreign Subsidiary in connection with Debt of such Foreign Subsidiary permitted by Section 10.2.1(f), create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to (i) pay dividends or make any other distributions on any of such Subsidiary’s capital stock owned by any Borrower or any other Subsidiary of such Borrower, (ii) repay or prepay any Debt owed by such Subsidiary to any Borrower or any other Subsidiary of such Borrower, (iii) make loans or advances to any Borrower or any other Subsidiary of such Borrower, or (iv) transfer any of its property or assets to any Borrower or any other Subsidiary of such Borrower.",
"10.2.3 Capital Expenditures. Make Capital Expenditures in excess of $2,500,000 in the aggregate during any Fiscal Year; provided, however, that if the amount of Capital Expenditures permitted to be made in any Fiscal Year exceeds the amount actually made, up to $500,000 of such excess may be carried forward to the next Fiscal Year. 10.2.4 Restricted Payments.",
"Declare or make any Restricted Payments, except for: (a) so long as no Default or Event of Default or material adverse alteration in the relationship between Borrowers and any member of the BK Group has occurred and is continuing or would result therefrom and so long as after giving pro forma effect thereto, the Fixed Charge Coverage Ratio is at least 1.10:1.00, EMAK may make dividend payments to the holders of its Preferred Stock; provided that no such dividend payments shall be made (i) unless and until Lenders shall have received the Compliance Certificate due with the audited financial statements for the Fiscal Year ending on December 31, 2006 that certifies that Borrowers are in full compliance with all of the covenants under the Credit Agreement and that there are no Defaults or Events of Default that have occurred and are continuing or (ii) during the Inventory Borrowing Period; provided further that the aggregate amount of -67- -------------------------------------------------------------------------------- such payments (including dividends to Crown with respect to Preferred Stock) shall not exceed $1,500,000 in any twelve-month period (it being understood and agreed that the aggregate amount of such amount may exceed such $1,500,000 for such twelve month period if such excess payment is for the sole purpose of catching up on dividend payments with respect to the Preferred Stock that were not made in a timely manner in accordance with the Certificate of Designation and if at the time of any such excess payment, (A) all of the conditions required to make such $1,500,000 payment are also met with respect to such excess payment and (B) after giving effect to such excess payment, there is an Availability of at least $3,500,000 and Lenders shall have been delivered a Borrowing Base Certificate showing such Availability and a Compliance Certificate showing that Borrowers are in compliance with all of the other provisions of this Agreement after giving effect to such excess payment); (b) Borrowers may make cash payments to HK Subsidiaries in an aggregate amount not exceeding the lesser of (i) $5,000,000 in any Fiscal Year (and in any event not exceeding $1,000,000 in any of the first three Fiscal Quarters and $2,000,000 in the fourth Fiscal Quarter) and (ii) an amount equal to the operating costs (including Taxes and Capital Expenditures) incurred and payable by HK Subsidiaries during such Fiscal Year (or such Fiscal Quarter, as applicable); and (c) Borrowers may make a loan to UK Subsidiaries on or prior to June 30, 2006 in an aggregate amount not exceeding $500,000 for the sole purpose of such UK Subsidiaries paying amounts to settle working capital adjustment claims arising from the acquisition of Megaprint Group Limited.",
"10.2.5 Restricted Investments. Make any Restricted Investment. 10.2.6 Disposition of Assets. Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of Equipment under Section 8.4.2, a transfer of Property by a Subsidiary or Obligor to a Borrower, or Asset Dispositions permitted by Section 10.2.9. 10.2.7 Loans. Make any loans or other advances of money to any Person, except (a) advances to an officer or employee for salary, travel expenses, commissions and similar items in the Ordinary Course of Business and in any event not exceeding $250,000 in the aggregate at any time; (b) prepaid expenses and extensions of trade credit made in the Ordinary Course of Business; (c) deposits with financial institutions permitted hereunder; and (d) as long as no Default or Event of Default exists, intercompany loans by a Borrower to another Borrower so long as such intercompany loans meet the requirements described in Section 10.2.1(b). 10.2.8 Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent).",
"10.2.9 Fundamental Changes. Merge, combine or consolidate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions, except for mergers or consolidations of a wholly-owned Subsidiary with another wholly-owned Subsidiary or into a Borrower; change its name or conduct business under any fictitious name; change its tax, charter or other organizational identification number; or change its form or state of organization. -68- -------------------------------------------------------------------------------- 10.2.10 Subsidiaries. Form or acquire any Subsidiary after the Closing Date, except in accordance with Sections 10.1.9 and 10.2.5; or permit any existing Subsidiary to issue any additional Equity Interests except director’s qualifying shares. 10.2.11 [Intentionally Omitted.] 10.2.12 Tax Consolidation. File or consent to the filing of any consolidated income tax return with any Person other than Borrowers and Subsidiaries. 10.2.13 Accounting Changes.",
"Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.2; or change its Fiscal Year. 10.2.14 Restrictive Agreements. Become a party to any Restrictive Agreement, except (a) a Restrictive Agreement as in effect on the Closing Date and shown on Schedule 9.1.17; (b) a Restrictive Agreement relating to secured Debt permitted hereunder, if such restrictions apply only to the collateral for such Debt; and (c) customary provisions in leases and other contracts restricting assignment thereof.",
"10.2.15 Hedging Agreements. Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of Business and not for speculative purposes. 10.2.16 Conduct of Business. Engage in any business, other than its business as conducted on the Closing Date and any activities incidental thereto. 10.2.17 Affiliate Transactions. Enter into or be party to any transaction with any holder of 10% or more of any class of capital stock of any Borrower or with an Affiliate, except (a) transactions contemplated by the Loan Documents; (b) payment of reasonable compensation to officers and employees for services actually rendered, and loans and advances permitted by Section 10.2.7; (c) payment of customary directors’ fees and indemnities; (d) transactions solely among Borrowers; (e) transactions with Affiliates that were consummated prior to the Closing Date, as shown on Schedule 10.2.17; and (f) transactions with Affiliates in the Ordinary Course of Business, upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate.",
"10.2.18 Plans. Become party to any Multiemployer Plan or Foreign Plan, other than any in existence on the Closing Date; or at any time engage in a transaction which could be subject to Sections 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt “prohibited transaction” (as defined in Section 4975 of the Internal Revenue Code of 1986, as amended); (b) fail to comply with ERISA or any other Applicable Laws; or (c) incur any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), which, with respect to each event listed above, has a Material Adverse Effect.",
"10.2.19 Amendments to Subordinated Debt. Amend, supplement or otherwise modify any document, instrument or agreement relating to any Subordinated Debt, if such modification (a) increases the principal balance of such Debt, or increases any required payment of principal or interest; (b) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (c) shortens the final maturity date or otherwise accelerates amortization; (d) increases the interest rate; (e) increases or adds any fees or charges; (f) modifies any covenant in a manner or adds any representation, covenant or default that is more onerous or restrictive in any material respect for any Borrower or Subsidiary, or that is otherwise materially adverse to any Borrower, any Subsidiary or Lenders; or (g) results in the Obligations not being fully benefited by the subordination provisions thereof. -69- -------------------------------------------------------------------------------- 10.2.20 Margin Regulations.",
"Use the proceeds of any Extensions of Credit hereunder for “purchasing” or “carrying” Margin Stock within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time or for any purpose which violates, or which would be inconsistent with, the provisions of Regulations T, U or X of such Board of Governors. 10.2.21 Amendments or Waivers of the Related Documents. Agree to any amendment materially adverse to any Borrower or to Agent or any Lender, or waive any of its material rights in favor of any Obligor under, any Related Document or any Organic Document of any Obligor after the Closing Date, without in each case obtaining the prior written consent of Required Lenders to such amendment or waiver. 10.2.22 Amendments to Transfer Pricing. Agree to or otherwise implement or institute any change to the transfer pricing between Borrowers on the one hand and Subsidiaries that are not Borrowers on the other hand if such change is less favorable to any Borrower. 10.2.23 Bills of Lading. Permit any bill of lading relating to any Inventory of any Borrower or any Inventory (whether or not then owned by any Borrower) being sold to BK, RSI and their respective Affiliates, in each case in transit to the United States leaving for the United States on or after April 10, 2006 to name any Person other than Agent as consignee of such bill of lading.",
"10.3 Financial Covenants. For so long as any Revolver Commitments or Obligations are outstanding, Borrowers shall: 10.3.1 Minimum EBITDA. Achieve EBITDA (i) that is no less than negative $2,250,000 calculated as of March 31, 2006 and April 30, 2006, for the three and four month period, respectively, then ended, (ii) that is no less than $2,000,000 calculated as of May 31, 2006, June 30, 2006 and July 31, 2006 for the five, six and seven month period, respectively, then ended, (iii) that is no less than negative $2,500,000 calculated as of August 31, 2006 for the eight month period then ended, and (iv) that is no less than $0 calculated as of September 30, 2006 for the nine month period then ended. 10.3.2 Fixed Charge Coverage Ratio.",
"Maintain a Fixed Charge Coverage Ratio of at least 1.10 to 1.0 at the end of each month (starting on the month ended on September 30, 2006) with respect to the twelve-month period then ended. SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT 11.1 Events of Default.",
"Each of the following shall be an “Event of Default” hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise: (a) Any Borrower fails to pay any Obligations when due (whether at stated maturity, on demand, upon acceleration or otherwise); (b) Any representation, warranty or other written statement of any Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given; (c) Any Borrower breaches or fail to perform any covenant contained in Section 7.2, 7.4, 7.6, 8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2, 10.2 or 10.3; (d) Any Obligor breaches or fails to perform any other covenant contained in any Loan Documents (not specified in subsections (a), (b) or (c)), and such breach or failure is not cured within 15 days after a Senior Officer of such Obligor has knowledge thereof or receives notice thereof -70- -------------------------------------------------------------------------------- from Agent, whichever is sooner; provided, however, that such notice and opportunity to cure shall not apply if the breach or failure to perform is not capable of being cured within such period or is a willful breach by an Obligor; (e) Any Guarantor repudiates, revokes or attempts to revoke its Guaranty; any Obligor denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Agent and Lenders); (f) Any breach or default of an Obligor occurs under any document, instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating to any Debt (other than the Obligations) in excess of $250,000, if the maturity of or any payment with respect to such Debt may be accelerated or demanded due to such breach; (g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $500,000 (net of any insurance coverage therefor acknowledged in writing by the insurer), unless a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal or otherwise; (h) Any loss, theft, damage or destruction occurs with respect to any Collateral if the amount not covered by insurance exceeds $250,000; (i) Any Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material part of its business; any Obligor suffers the loss, revocation or termination of any material license, permit, lease or agreement necessary to its business; there is a cessation of any material part of an Obligor’s business for a material period of time; any material Collateral or Property of an Obligor is taken or impaired through condemnation; any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) to or commences any liquidation, dissolution or winding up of its affairs; or any Obligor ceases to be Solvent; (j) Any Insolvency Proceeding is commenced by any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral); an Insolvency Proceeding is commenced against any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) and such Obligor or such Subsidiary consents to the institution of the proceeding against it, the petition commencing the proceeding is not timely controverted by such Obligor or such Subsidiary, such petition is not dismissed within 30 days after its filing, or an order for relief is entered in the proceeding; a trustee (including an interim trustee) is appointed to take possession of any substantial Property of or to operate any of the business of any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral); or any Obligor or any of its Subsidiaries (to the extent the Equity Interests of such Subsidiaries are a part of the Collateral) makes an offer of settlement, extension or composition to its unsecured creditors generally; (k) A Reportable Event occurs that constitutes grounds for termination by the Pension Benefit Guaranty Corporation of any Multiemployer Plan or appointment of a trustee for any Multiemployer Plan; any Multiemployer Plan is terminated or any such trustee is requested or appointed; any Obligor is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan resulting from any withdrawal therefrom; or any event similar to the foregoing occurs or exists with respect to a Foreign Plan; -71- -------------------------------------------------------------------------------- (l) Any Obligor or any of its Senior Officers is criminally indicted or convicted for (i) a felony committed in the conduct of such Obligor’s business, or (ii) any state or federal law (including the Controlled Substances Act, Money Laundering Control Act of 1986 and Illegal Exportation of War Materials Act) that could lead to forfeiture of any material Property or any Collateral; or (m) A Change of Control occurs, or any event occurs or condition exists that has a Material Adverse Effect.",
"11.2 Remedies upon Default. If an Event of Default described in Section 11.1(j) occurs with respect to any Borrower, then to the extent permitted by Applicable Law, all Obligations shall become automatically due and payable and all Revolver Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time: (a) declare any Obligations immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Borrowers to the fullest extent permitted by law; (b) terminate, reduce or condition any Revolver Commitment, or make any adjustment to the Borrowing Base; (c) require Obligors to Cash Collateralize LC Obligations, Bank Product Debt and other Obligations that are contingent or not yet due and payable, and, if Obligors fail promptly to deposit such Cash Collateral, Agent may (and shall upon the direction of Required Lenders) advance the required Cash Collateral as Revolver Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied); and (d) exercise any other rights or remedies afforded under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Borrowers to assemble Collateral, at Borrowers’ expense, and make it available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by a Borrower, Borrowers agree not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems advisable.",
"Each Borrower agrees that ten days notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable. Agent shall have the right to conduct such sales on any Obligor’s premises, without charge, and such sales may be adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may set off the amount of such price against the Obligations.",
"11.3 License. Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of Borrowers, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral. Each Borrower’s rights and interests under Intellectual Property shall inure to Agent’s benefit. -72- -------------------------------------------------------------------------------- 11.4 Setoff. Agent, Lenders and their Affiliates are each authorized by Borrowers at any time during an Event of Default, without notice to Borrowers or any other Person, to set off and to appropriate and apply any deposits (general or special), funds, claims, obligations, liabilities or other Debt at any time held or owing by Agent, any Lender or any such Affiliate to or for the account of any Obligor against any Obligations, whether or not demand for payment of such Obligation has been made, any Obligations have been declared due and payable, are then due, or are contingent or unmatured, or the Collateral or any guaranty or other security for the Obligations is adequate.",
"11.5 Remedies Cumulative; No Waiver. 11.5.1 Cumulative Rights. All covenants, conditions, provisions, warranties, guaranties, indemnities and other undertakings of Borrowers contained in the Loan Documents are cumulative and not in derogation or substitution of each other. In particular, the rights and remedies of Agent and Lenders are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and shall not be exclusive of any other rights or remedies that Agent and Lenders may have, whether under any agreement, by law, at equity or otherwise. 11.5.2 Waivers. The failure or delay of Agent or any Lender to require strict performance by Borrowers with any terms of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise, shall not operate as a waiver thereof nor as establishment of a course of dealing.",
"All rights and remedies shall continue in full force and effect until Full Payment of all Obligations. No modification of any terms of any Loan Documents (including any waiver thereof) shall be effective, unless such modification is specifically provided in a writing directed to Borrowers and executed by Agent or the requisite Lenders, and such modification shall be applicable only to the matter specified. No waiver of any Default or Event of Default shall constitute a waiver of any other Default or Event of Default that may exist at such time, unless expressly stated. If Agent or any Lender accepts performance by any Obligor under any Loan Documents in a manner other than that specified therein, or during any Default or Event of Default, or if Agent or any Lender shall delay or exercise any right or remedy under any Loan Documents, such acceptance, delay or exercise shall not operate to waive any Default or Event of Default nor to preclude exercise of any other right or remedy.",
"It is expressly acknowledged by Borrowers that any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date. SECTION 12. AGENT 12.1 Appointment, Authority and Duties of Agent. — 12.1.1 Appointment and Authority. Each Lender appoints and designates Bank of America as Agent hereunder. Agent may, and each Lender authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents, for Agent’s benefit and the Pro Rata benefit of Lenders. Each Lender agrees that any action taken by Agent or Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by Agent or Required Lenders of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized and binding upon all Lenders. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) exercise all rights and remedies given to Agent with respect to any Collateral under the Loan Documents, Applicable Law or otherwise.",
"The duties of Agent shall be ministerial and administrative in nature, and Agent shall not have a fiduciary relationship with any Lender, Secured -73- -------------------------------------------------------------------------------- Party, Participant or other Person, by reason of any Loan Document or any transaction relating thereto. Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Lender or other Person for any error in judgment. 12.1.2 Duties. Agent shall not have any duties except those expressly set forth in the Loan Documents, nor be required to initiate or conduct any Enforcement Action except to the extent directed to do so by Required Lenders while an Event of Default exists. The conferral upon Agent of any right shall not imply a duty on Agent’s part to exercise such right, unless instructed to do so by Required Lenders in accordance with this Agreement.",
"12.1.3 Agent Professionals. Agent may perform its duties through agents and employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care. 12.1.4 Instructions of Required Lenders. The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joinder of any other party, unless required by Applicable Law.",
"Agent may request instructions from Required Lenders with respect to any act (including the failure to act) in connection with any Loan Documents, and may seek assurances to its satisfaction from Lenders of their indemnification obligations under Section 12.6 against all Claims that could be incurred by Agent in connection with any act. Agent shall be entitled to refrain from any act until it has received such instructions or assurances, and Agent shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Lenders, and no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting in accordance with the instructions of Required Lenders.",
"Notwithstanding the foregoing, instructions by and consent of all Lenders shall be required in the circumstances described in Section 14.1.1, and in no event shall Required Lenders, without the prior written consent of each Lender, direct Agent to accelerate and demand payment of Loans held by one Lender without accelerating and demanding payment of all other Loans, nor to terminate the Revolver Commitments of one Lender without terminating the Revolver Commitments of all Lenders. In no event shall Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to personal liability. 12.2 Agreements Regarding Collateral and Field Examination Reports. 12.2.1 Lien Releases; Care of Collateral.",
"Lenders authorize Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Obligations, (b) that is the subject of an Asset Disposition which Borrowers certify in writing to Agent is a Permitted Asset Disposition or a Lien which Borrowers certify is a Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without further inquiry), (c) that does not constitute a material part of the Collateral, or (d) with the written consent of all Lenders.",
"Agent shall have no obligation whatsoever to any Lenders to assure that any Collateral exists or is owned by a Borrower, or is cared for, protected, insured or encumbered, nor to assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. 12.2.2 Possession of Collateral. Agent and Lenders appoint each other Lender as agent for the purpose of perfecting Liens (for the benefit of Secured Parties) in any Collateral that, under the UCC or other Applicable Law, can be perfected by possession. If any Lender obtains possession of any -74- -------------------------------------------------------------------------------- such Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with such Collateral in accordance with Agent’s instructions. 12.2.3 Reports. Agent shall promptly, upon receipt thereof, forward to each Lender copies of the results of any field audit or other examination or any appraisal prepared by or on behalf of Agent with respect to any Obligor or Collateral (“Report”). Each Lender agrees (a) that neither Bank of America nor Agent makes any representation or warranty as to the accuracy or completeness of any Report, and shall not be liable for any information contained in or omitted from any Report; (b) that the Reports are not intended to be comprehensive audits or examinations, and that Agent or any other Person performing any audit or examination will inspect only specific information regarding Obligations or the Collateral and will rely significantly upon Borrowers’ books and records as well as upon representations of Borrowers’ officers and employees; and (c) to keep all Reports confidential and strictly for such Lender’s internal use, and not to distribute any Report (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants) or use any Report in any manner other than administration of the Loans and other Obligations.",
"Each Lender agrees to indemnify and hold harmless Agent and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Report, as well as any Claims arising in connection with any third parties that obtain all or any part of a Report through such Lender. 12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and upon the advice and statements of Agent Professionals. 12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or Event of Default unless it has received written notice from a Lender or Borrower specifying the occurrence and nature thereof.",
"If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate its Obligations, or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against an Obligor where a deadline or limitation period is applicable that would, absent such action, bar enforcement of Obligations held by such Lender, including the filing of proofs of claim in an Insolvency Proceeding. 12.5 Ratable Sharing.",
"If any Lender shall obtain any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its share of such Obligation, determined on a Pro Rata basis or in accordance with Section 5.5.1, as applicable, such Lender shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in the affected Obligation as are necessary to cause the purchasing Lender to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 5.5.1, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.",
"12.6 Indemnification of Agent Indemnitees. 12.6.1 Indemnification. EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE. If Agent is sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person for any alleged -75- -------------------------------------------------------------------------------- preference from an Obligor or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by Lenders to the extent of each Lender’s Pro Rata share.",
"12.6.2 Proceedings. Without limiting the generality of the foregoing, if at any time (whether prior to or after the Commitment Termination Date) any proceeding is brought against any Agent Indemnitees by an Obligor, or any Person claiming through an Obligor, to recover damages for any act taken or omitted by Agent in connection with any Obligations, Collateral, Loan Documents or matters relating thereto, or otherwise to obtain any other relief of any kind on account of any transaction relating to any Loan Documents, each Lender agrees to indemnify and hold harmless Agent Indemnitees with respect thereto and to pay to Agent Indemnitees such Lender’s Pro Rata share of any amount that any Agent Indemnitee is required to pay under any judgment or other order entered in such proceeding or by reason of any settlement, including all interest, costs and expenses (including attorneys’ fees) incurred in defending same. In Agent’s discretion, Agent may reserve for any such proceeding, and may satisfy any judgment, order or settlement, from proceeds of Collateral prior to making any distributions of Collateral proceeds to Lenders.",
"12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to Lenders for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor or Lender of any obligations under the Loan Documents. Agent does not make to Lenders any express or implied warranty, representation or guarantee with respect to any Obligations, Collateral, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements, information, representations or warranties contained in any Loan Documents; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectibility of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents. 12.8 Successor Agent and Co-Agents.",
"12.8.1 Resignation; Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required Lenders shall have the right to appoint a successor Agent which shall be (a) a Lender or an Affiliate of a Lender; or (b) a commercial bank that is organized under the laws of the United States or any state or district thereof, has a combined capital surplus of at least $200,000,000 and (provided no Default or Event of Default exists) is reasonably acceptable to Borrowers. If no successor agent is appointed prior to the effective date of the resignation of Agent, then Agent may appoint a successor agent from among Lenders.",
"Upon acceptance by a successor Agent of an appointment to serve as Agent hereunder, such successor Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Agent without further act, and the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s resignation, the provisions of this Section 12 shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while Agent. Any successor by merger or acquisition of the stock or assets of Bank of America shall continue to be Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above.",
"-76- -------------------------------------------------------------------------------- 12.8.2 Separate Collateral Agent. It is the intent of the parties that there shall be no violation of any Applicable Law denying or restricting the right of financial institutions to transact business in any jurisdiction. If Agent believes that it may be limited in the exercise of any rights or remedies under the Loan Documents due to any Applicable Law, Agent may appoint an additional Person who is not so limited, as a separate collateral agent or co-collateral agent. If Agent so appoints a collateral agent or co-collateral agent, each right and remedy intended to be available to Agent under the Loan Documents shall also be vested in such separate agent.",
"Every covenant and obligation necessary to the exercise thereof by such agent shall run to and be enforceable by it as well as Agent. Lenders shall execute and deliver such documents as Agent deems appropriate to vest any rights or remedies in such agent. If any collateral agent or co-collateral agent shall die or dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new agent.",
"12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations hereunder. Each Lender has made such inquiries concerning the Loan Documents, the Collateral and each Obligor as such Lender feels necessary.",
"Each Lender further acknowledges and agrees that the other Lenders and Agent have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each Lender will, independently and without reliance upon the other Lenders or Agent, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining from any action under any Loan Documents.",
"Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Lender with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or any of Agent’s Affiliates.",
"12.10 Replacement of Certain Lenders. In the event that any Lender (a) fails to fund its Pro Rata share of any Loan or LC Obligation hereunder, and such failure is not cured within two Business Days, (b) defaults in performing any of its obligations under the Loan Documents, or (c) fails to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, then, in addition to any other rights and remedies that any Person may have, Agent may, by notice to such Lender within 120 days after such event, require such Lender to assign all of its rights and obligations under the Loan Documents to Eligible Assignee(s) specified by Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days after Agent’s notice.",
"Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute same. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents, including all principal, interest and fees through the date of assignment (but excluding any prepayment charge). 12.11 Remittance of Payments and Collections. 12.11.1 Remittances Generally. All payments by any Lender to Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by Agent and request for payment is made by Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on such day, and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the next Business Day.",
"Payment by Agent to any Lender shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such Lender under the Loan Documents. -77- -------------------------------------------------------------------------------- 12.11.2 Failure to Pay. If any Lender fails to pay any amount when due by it to Agent pursuant to the terms hereof, such amount shall bear interest from the due date until paid at the rate determined by Agent as customary in the banking industry for interbank compensation. In no event shall Borrowers be entitled to receive credit for any interest paid by a Lender to Agent.",
"12.11.3 Recovery of Payments. If Agent pays any amount to a Lender in the expectation that a related payment will be received by Agent from an Obligor and such related payment is not received, then Agent may recover such amount from each Lender that received it. If Agent determines at any time that an amount received under any Loan Document must be returned to an Obligor or paid to any other Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document, Agent shall not be required to distribute such amount to any Lender. If any amounts received and applied by Agent to any Obligations are later required to be returned by Agent pursuant to Applicable Law, Lenders shall pay to Agent, on demand, such Lender’s Pro Rata share of the amounts required to be returned. 12.12 Agent in its Individual Capacity. As a Lender, Bank of America shall have the same rights and remedies under the other Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as a Lender.",
"Each of Bank of America and its Affiliates may accept deposits from, maintain deposits or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under indentures of, serve as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if Bank of America were any other bank, without any duty to account therefor (including any fees or other consideration received in connection therewith) to the other Lenders. In their individual capacity, Bank of America and its Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and each Lender agrees that Bank of America and its Affiliates shall be under no obligation to provide such information to Lenders, if acquired in such individual capacity and not as Agent hereunder. 12.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on the cover page of this Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of any type shall not have any right, power, responsibility or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event be deemed to have any fiduciary relationship with any other Lender. 12.14 No Third Party Beneficiaries.",
"This Section 12 is an agreement solely among Lenders and Agent, and does not confer any rights or benefits upon Borrowers or any other Person. As between Borrowers and Agent, any action that Agent may take under any Loan Documents shall be conclusively presumed to have been authorized and directed by Lenders as herein provided. SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS 13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers, Agent and Lenders and their respective successors and assigns, except that (a) no Borrower shall have the right to assign its rights or delegate its obligations under any Loan Documents, and (b) any assignment by a Lender must be made in compliance with Section 13.3.",
"Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender. 13.2 Participations. 13.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary course of its business and in accordance with Applicable Law, at any time sell to a financial institution (“Participant”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite -78- -------------------------------------------------------------------------------- any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for performance of such obligations, such Lender shall remain the holder of its Revolver Loans and Revolver Commitments for all purposes, all amounts payable by Borrowers shall be determined as if such Lender had not sold such participating interests, and Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or liability to any such Participant.",
"A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.8 unless Borrowers agree otherwise in writing. 13.2.2 Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of any Loan Documents other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Revolver Commitment in which such Participant has an interest, postpones the Commitment Termination Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Revolver Commitment, or releases any Borrower, Guarantor or substantial portion of the Collateral.",
"13.2.3 Benefit of Set-Off. Borrowers agree that each Participant shall have a right of set-off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if such Participant were a Lender. 13.3 Assignments. 13.3.1 Permitted Assignments. A Lender may assign to any Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $2,000,000 (unless otherwise agreed by Agent in its discretion) and integral multiples of $500,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Revolver Commitments retained by the transferor Lender be at least $4,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance.",
"Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to (i) any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, or (ii) counterparties to swap agreements relating to any Loans; provided, however, that any payment by Borrowers to the assigning Lender in respect of any Obligations assigned as described in this sentence shall satisfy Borrowers’ obligations hereunder to the extent of such payment, and no such assignment shall release the assigning Lender from its obligations hereunder.",
"13.3.2 Effect; Effective Date. Upon delivery to Agent of an assignment notice in the form of Exhibit C and a processing fee of $5,000, such assignment shall become effective as specified in the notice, if it complies with this Section 13.3. From the effective date of such assignment, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder. Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make appropriate arrangements for issuance of replacement and/or new Notes, as appropriate. -79- -------------------------------------------------------------------------------- 13.4 Tax Treatment. If any interest in a Loan Document is transferred to a Transferee that is organized under the laws of any jurisdiction other than the United States or any state or district thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 5.9. 13.5 Representation of Lenders. Each Lender represents and warrants to each Borrower, Agent and other Lenders that none of the consideration used by it to fund its Loans or to participate in any other transactions under this Agreement constitutes for any purpose of ERISA or Section 4975 of the Internal Revenue Code assets of any “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code and the interests of such Lender in and under the Loan Documents shall not constitute plan assets under ERISA. SECTION 14. MISCELLANEOUS 14.1 Consents, Amendments and Waivers.",
"— 14.1.1 Amendment. No modification of any Loan Document, including any extension or amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of Agent, with the consent of Required Lenders, and each Obligor party to such Loan Document; provided, however, that (a) without the prior written consent of Agent, no modification shall be effective with respect to any provision in a Loan Document that relates to any rights, duties or discretion of Agent; (b) without the prior written consent of Issuing Bank, no modification shall be effective with respect to any LC Obligations or Section 2.2; (c) without the prior written consent of each affected Lender, no modification shall be effective that would (i) increase the Revolver Commitment of such Lender; or (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender; and (d) without the prior written consent of all Lenders (except a defaulting Lender as provided in Section 4.2), no modification shall be effective that would (i) extend the Revolver Termination Date; (ii) alter Section 5.5, 7.1 (except to add Collateral), or 14.1.1; (iii) amend the definitions of Borrowing Base (and the defined terms used in such definition), Pro Rata or Required Lenders; (iv) increase any advance rate, decrease the Availability Block, or increase total Revolver Commitments; (vi) release Collateral with a book value greater than $2,000,000 during any calendar year, except as currently contemplated by the Loan Documents; or (vii) release any Obligor from liability for any Obligations, if such Obligor is Solvent at the time of the release.",
"14.1.2 Limitations. The agreement of Borrowers shall not be necessary to the effectiveness of any modification of a Loan Document that deals solely with the rights and duties of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the parties to any agreement relating to a Bank Product shall be required for any modification of such agreement, and no Affiliate of a Lender that is party to a Bank Product agreement shall have any other right to consent to or participate in any manner in modification of any other Loan Document. The making of any Loans during the existence of a Default or Event of Default shall not be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of dealing. Any waiver or consent granted by Lenders hereunder shall be effective only if in writing, and then only in the specific instance and for the specific purpose for which it is given.",
"14.1.3 Payment for Consents. No Borrower will, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any -80- -------------------------------------------------------------------------------- modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent. 14.2 Indemnity. EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE.",
"In no event shall any party to a Loan Document have any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that is determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of such Indemnitee. 14.3 Notices and Communications. 14.3.1 Notice Address. Subject to Section 4.1.4, all notices, requests and other communications by or to a party hereto shall be in writing and shall be given to any Borrower, at Borrower Agent’s address shown on the signature pages hereof, and to any other Person at its address shown on the signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at the address shown on its Assignment and Acceptance), or at such other address as a party may hereafter specify by notice in accordance with this Section 14.3. Each such notice, request or other communication shall be effective only (a) if given by facsimile transmission, when transmitted to the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the applicable address; or (c) if given by personal delivery, when duly delivered to the notice address with receipt acknowledged.",
"Notwithstanding the foregoing, no notice to Agent pursuant to Section 2.1.4, 2.2, 3.1.2, 4.1.1 or 5.2.3 shall be effective until actually received by the individual to whose attention at Agent such notice is required to be sent. Any written notice, request or other communication that is not sent in conformity with the foregoing provisions shall nevertheless be effective on the date actually received by the noticed party. Any notice received by Borrower Agent shall be deemed received by all Borrowers. 14.3.2 Electronic Communications; Voice Mail. Electronic mail and internet websites may be used only for routine communications, such as financial statements, Borrowing Base Certificates and other information required by Section 10.1.2, administrative matters, distribution of Loan Documents for execution, and matters permitted under Section 4.1.4. Agent and Lenders make no assurances as to the privacy and security of electronic communications.",
"Electronic and voice mail may not be used as effective notice under the Loan Documents. 14.3.3 Non-Conforming Communications. Agent and Lenders may rely upon any notices purportedly given by or on behalf of any Borrower even if such notices were not made in a manner specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by the recipient, varied from a later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses arising from any telephonic communication purportedly given by or on behalf of a Borrower.",
"14.4 Performance of Borrowers’ Obligations. Agent may, in its discretion at any time and from time to time, at Borrowers’ expense, pay any amount or do any act required of a Borrower under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section shall be reimbursed to Agent by Borrowers, on demand, with interest from the date incurred to the date of payment thereof at the Default Rate applicable to Base Rate Revolver Loans. Any payment made or -81- -------------------------------------------------------------------------------- action taken by Agent under this Section shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents. 14.5 Credit Inquiries.",
"Each Borrower hereby authorizes Agent and Lenders (but they shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Borrower or Subsidiary. 14.6 Severability. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect. 14.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise specifically provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control. 14.8 Counterparts; Facsimile Signatures.",
"Any Loan Document may be executed in counterparts, each of which taken together shall constitute one instrument. Loan Documents may be executed and delivered by facsimile, and they shall have the same force and effect as manually signed originals. Agent may require confirmation by a manually-signed original, but failure to request or deliver same shall not limit the effectiveness of any facsimile signature. 14.9 Entire Agreement. Time is of the essence of the Loan Documents. The Loan Documents embody the entire understanding of the parties with respect to the subject matter thereof and supersede all prior understandings regarding the same subject matter.",
"14.10 Obligations of Lenders. The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Revolver Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled, to the extent not otherwise restricted hereunder, to protect and enforce its rights arising out of the Loan Documents. It shall not be necessary for Agent or any other Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Agent or Lenders pursuant to the Loan Documents shall be deemed to constitute Agent and Lenders to be a partnership, association, joint venture or any other kind of entity, nor to constitute control of any Borrower.",
"Each Borrower acknowledges and agrees that in connection with all aspects of any transaction contemplated by the Loan Documents, Borrowers, Agent, Issuing Bank and Lenders have an arms-length business relationship that creates no fiduciary duty on the part of Agent, Issuing Bank or any Lender, and each Borrower, Agent, Issuing Bank and Lender expressly disclaims any fiduciary relationship. 14.11 Confidentiality. During the term of this Agreement and for 12 months thereafter, Agent and Lenders agree to take reasonable precautions to maintain the confidentiality of any information that Borrowers deliver to Agent and Lenders and identify as confidential at the time of delivery, except that Agent and any Lender may disclose such information (a) to their respective officers, directors, employees, Affiliates and agents, including legal counsel, auditors and other professional advisors; (b) to any party to the Loan Documents from time to time; (c) pursuant to the order of any court or administrative agency; (d) upon the request of any Governmental Authority exercising regulatory authority over Agent or such Lender; (e) which ceases to be confidential, other than by an act or omission of Agent or any Lender, or which becomes available to Agent or any Lender on a nonconfidential basis; (f) to the extent reasonably required in connection with any litigation relating to any Loan Documents or transactions contemplated -82- -------------------------------------------------------------------------------- thereby, or otherwise as required by Applicable Law; (g) to the extent reasonably required for the exercise of any rights or remedies under the Loan Documents; (h) to any actual or proposed party to a Bank Product or to any Transferee, as long as such Person agrees to be bound by the provisions of this Section; (i) to the National Association of Insurance Commissioners or any similar organization, or to any nationally recognized rating agency that requires access to information about a Lender’s portfolio in connection with ratings issued with respect to such Lender; (j) to any investor or potential investor in an Approved Fund that is a Lender or Transferee, but solely for use by such investor to evaluate an investment in such Approved Fund, or to any manager, servicer or other Person in connection with its administration of any such Approved Fund; or (k) with the consent of Borrowers.",
"Notwithstanding the foregoing, Agent and Lenders may issue and disseminate to the public general information describing this credit facility, including the names and addresses of Borrowers and a general description of Borrowers’ businesses, and may use Borrowers’ names in advertising and other promotional materials. 14.12 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS). 14.13 Consent to Forum; Arbitration. 14.13.1 Forum.",
"EACH BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER CALIFORNIA, IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any Obligor in any other court.",
"Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any judgment or order obtained in any forum or jurisdiction. 14.13.2 Arbitration. Notwithstanding any other provision of this Agreement to the contrary, any controversy or claim among the parties relating in any way to any Obligations or Loan Documents, including any alleged tort, shall at the request of any party hereto be determined by binding arbitration conducted in accordance with the United States Arbitration Act (Title 9 U.S. Code). Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association (“AAA”), and the terms of this Section. In the event of any inconsistency, the terms of this Section shall control. If AAA is unwilling or unable to serve as the provider of arbitration or to enforce any provision of this Section, Agent may designate another arbitration organization with similar procedures to serve as the provider of arbitration. The arbitration proceedings shall be conducted in Los Angeles or Pasadena, California.",
"The arbitration hearing shall commence within 90 days of the arbitration demand and close within 90 days thereafter. The arbitration award must be issued within 30 days after close of the hearing (subject to extension by the arbitrator for up to 60 days upon a showing of good cause), and shall include a concise written statement of reasons for the award. The arbitrator shall give effect to applicable statutes of limitation in determining any controversy or claim, and for these purposes, service on AAA under applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any dispute concerning this Section or whether a controversy or claim is arbitrable shall be determined by the arbitrator.",
"The arbitrator shall have the power to award legal fees to the extent provided by this Agreement. Judgment upon an arbitration award may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuant to a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or -83- -------------------------------------------------------------------------------- claim to arbitration if any other party contests such action for judicial relief. No controversy or claim shall be submitted to arbitration without the consent of all parties if, at the time of the proposed submission, such controversy or claim relates to an obligation secured by Real Estate, but if all parties do not consent to submission of such a controversy or claim to arbitration, it shall be determined as provided in the next sentence.",
"At the request of any party, a controversy or claim that is not submitted to arbitration as provided above shall be determined by judicial reference; and if such an election is made, the parties shall designate to the court a referee or referees selected under the auspices of the AAA in the same manner as arbitrators are selected in AAA sponsored proceedings and the presiding referee of the panel (or the referee if there is a single referee) shall be an active attorney or retired judge; and judgment upon the award rendered by such referee or referees shall be entered in the court in which proceeding was commenced. None of the foregoing provisions of this Section shall limit the right of Agent or Lenders to exercise self-help remedies, such as setoff, foreclosure or sale of any Collateral or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after or during any arbitration proceeding.",
"The exercise of a remedy does not waive the right of any party to resort to arbitration or reference. At Agent’s option, foreclosure under a Mortgage may be accomplished either by exercise of power of sale thereunder or by judicial foreclosure. 14.14 Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in any proceeding, claim or counterclaim of any kind relating in any way to any Loan Documents, Obligations or Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by Agent on which a Borrower may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any bond or security that might be required by a court prior to allowing Agent to exercise any rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against Agent or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and (g) notice of acceptance hereof. Each Borrower acknowledges that the foregoing waivers are a material inducement to Agent and Lenders entering into this Agreement and that Agent and Lenders are relying upon the foregoing in their dealings with Borrowers.",
"Each Borrower has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 14.15 Patriot Act Notice. Agent and Lenders hereby notify Borrowers that pursuant to the requirements of the Patriot Act, Agent and Lenders are required to obtain, verify and record information that identifies each Borrower, including its legal name, address, tax ID number and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also require information regarding each personal guarantor, if any, and may require information regarding Borrowers’ management and owners, such as legal name, address, social security number and date of birth. [Remainder of page intentionally left blank; signatures begin on following page] -84- -------------------------------------------------------------------------------- IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above.",
"BORROWERS: EMAK WORLDWIDE, INC. By: /s/ Teresa L. Tormey Title: Chief Administrative Officer and General Counsel Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EQUITY MARKETING, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 SCI PROMOTION, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 -------------------------------------------------------------------------------- POP ROCKET, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd.",
"Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 LOGISTIX, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 UPSHOT, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EMAK WORLDWIDE SERVICE CORP. By: /s/ Teresa L. Tormey Title: Chief Administrative Officer and General Counsel Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 -------------------------------------------------------------------------------- CORINTHIAN MARKETING, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 JOHNSON GROSSFIELD, INC. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd.",
"Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 EQUITY MARKETING HONG KONG, LTD. By: /s/ Teresa L. Tormey Title: Executive Vice President, General Counsel and Secretary Address: 6330 San Vicente Blvd. Los Angeles, CA 90048 Attention: Teresa L. Tormey Telecopy: 323-930-8346 -------------------------------------------------------------------------------- AGENT AND LENDERS: BANK OF AMERICA, N.A., as Agent and Lender By: /s/ David T. Knoblauch Title: Senior Vice President Address: 55 South Lake Avenue Pasadena, California 91101-2627 Attention: Portfolio Manager Telecopy: (626) 584-4600"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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