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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of September ___, 2013, by and among CHANTICLEER HOLDINGS, INC., a Delaware corporation (the “Parent”), Chanticleer Roadside Burgers International, LLC, a wholly owned subsidiary of Parent (the “Purchaser”) and AMERICAN ROADSIDE BURGERS, INC., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Board of Directors of each of the Parent, the Purchaser and the Company, respectively, have determined that this Agreement and the transactions contemplated hereby, including the Merger (as defined below), are advisable and fair to, and in the best interests of, the Parent, the Purchaser, the Company, and their respective stockholders;
WHEREAS, the Board of Directors of each of the Parent, the Purchaser, and the Company have each adopted resolutions approving the execution of this Agreement and the consummation of the transactions contemplated hereby;
WHEREAS, the Board of Directors of each of the Parent, the Purchaser, and the Company, respectively, have approved and declared advisable and in the best interests of the Parent, the Purchaser, and the Company, respectively, this Agreement and the transactions contemplated hereby, and have determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to and in the best interests of their respective stockholders;
WHEREAS, each of the Parent, the Purchaser, and the Company desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms, as used herein, shall have the following meanings:
(a) "Action" means any action, claim, dispute, proceeding, suit or investigation (whether civil, criminal, administrative or investigative), or any appeal therefrom.
(b) "Affiliate" means any Person, a spouse of such Person, any child or parent sharing the same household with such Person, any director or officer of such Person, and any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person.
(c) "Agreement" means this Agreement and Plan of Merger and shall include all of the Schedules and Exhibits attached hereto.
(d) “Alternative Transaction” has the meaning assigned to it in Section 6.4.
(e) "Annual Financial Statements" has the meaning assigned to it in Section 4.8(a).
(f) "Approval" means any approval, authorization, consent, license, franchise, order, registration, permit or other confirmation of or by, or filing with, a Person.
(g) "Business Day" means any day other than a Saturday, a Sunday, a legal holiday in the State of Delaware or the State of North Carolina or a day on which commercial banks in the State of Delaware or the State of North Carolina are permitted or authorized to close.
(h) "Certificate of Merger" has the meaning assigned to it in Section 2.3.
(i) "Closing" and "Closing Date" have the meanings assigned to them in Section 2.2.
(j) "Code" means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
(k) "Company Common Stock" means the common stock, par value $0.0001 per share, of the Company.
(l) "Company Employee Plans" has the meaning assigned to it in Section 4.16(a).
(m) “Company Stock Plans” means a qualified, defined contribution, employee benefit (ERISA) plan designed to invest primarily in the stock of the Company.
(n) "Condition" means, with respect to a Person, the business, liabilities, properties, prospects, assets, operations, results of operations and/or condition (financial or otherwise) of such Person.
(o) "Contracts" has the meaning assigned to it in Section 4.10(b).
(p) "Damages" means any claim, loss, deficiency (financial or otherwise), Liability, cost or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) or damage of any kind or nature whatsoever.
(q) "Effective Time" has the meaning assigned to it in Section 2.3.
(r) "Environmental Laws" means all currently existing foreign, federal, state and local laws, regulations, rules and ordinances relating to pollution or protection of the environment or human health and safety, including, without limitation, laws relating to releases or threatened releases of Hazardous Materials into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, release, transport or handling of Hazardous Materials and all laws and regulations with regard to record keeping, notification, disclosure and reporting requirements respecting Hazardous Materials, and all laws relating to endangered or threatened species of fish, wildlife and plants and the management or use of natural resources.
(s) "ERISA" has the meaning assigned to it in Section 4.16(a).
(t) "Financial Statements" has the meaning assigned to it in Section 4.8(a).
(u) "GAAP" means United States generally accepted accounting principles.
(v) "Governmental Authority" means any United States federal, state, local, foreign or other governmental, administrative or regulatory authority, body, agency, court, tribunal or similar entity.
(w) "Hazardous Materials" means any substance: (i) the presence of which requires or may require investigation or remediation of any kind under any Environmental Laws; (ii) which is defined as "hazardous waste," "hazardous material," "residual waste," "hazardous substance," "pollutant" or "contaminant" under any federal, state or local statute, regulation, rule or ordinance or amendments thereto including, without limitation, CERCLA and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) or (iii) which is otherwise regulated pursuant to any applicable Environmental Law.
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(x) "Indemnified Party" means any party entitled to indemnification pursuant to Article 10 hereof.
(y) "Indemnifying Party" means any party required to indemnify an Indemnified Party pursuant to Article 10 hereof.
(z) "Intellectual Property" means trademarks, service marks, trade names, Internet domain names, designs, logos, slogans, and general intangibles of like nature, together with all goodwill, registrations and applications related to the foregoing (collectively, "Trademarks"); patents and industrial designs (including any continuations, divisionals, continuations-in-part, renewals, reissues, and applications for any of the foregoing); copyrights (including any registrations and applications for any of the foregoing); software; "mask works" (as defined under 17 USC ss. 901) and any registrations and applications for "mask works"; Trade Secrets; rights of publicity and privacy relating to the use of the names, likenesses, voices, signatures and biographical information of real persons.
(aa) "Interim Balance Sheet" means the unaudited balance sheet of the Company as of June 30, 2013 previously delivered to the Purchaser.
(bb) "Interim Financial Statements" means the Interim Balance Sheet together with the unaudited statement of income and cash flow of the Company for the six-month period ended June 30, 2013 previously delivered to the Purchaser, which have been reviewed by the Company’s audit firm.
(cc) "Law" means any federal, state, local or foreign law, statute, rule, regulation, ordinance, standard, requirement, administrative ruling, order or process (including, without limitation, any zoning or land use law or ordinance, building code, Environmental Law, securities, blue sky, civil rights or occupational health and safety law or regulation) or administrative interpretation thereof, and any court, or arbitrator's order or process.
(dd) "Leased Real Property" has the meaning assigned to it in Section 4.20(b).
(ee) "Liability" means any debt, liability, commitment or obligation of any kind, character or nature whatsoever, whether known or unknown, secured or unsecured, accrued, fixed, absolute, contingent or otherwise, and whether due or to become due.
(ff) "License Agreements" has the meaning assigned to it in Section 4.11(b).
(gg) "Lien" means any lien, statutory lien, pledge, mortgage, security interest, charge, encumbrance, easement, right of way, covenant, claim, restriction, right, option, conditional sale or other title retention agreement of any kind or nature.
(hh) "Material Adverse Effect" means any change, event, development, condition, occurrence or effect that is, or would reasonably be expected to be (a) materially adverse to the business, financial condition, assets, liabilities, or result of operations of the Company and the Company’s Subsidiaries, taken as a whole, or (b) prevents or materially delays or would reasonably be expected to prevent or materially delay, consummation of the Merger or performance by the Company of any of its material obligations under this Agreement.
(ii) "Merger" has the meaning assigned to it in Section 2.1.
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(jj) "Person" means any individual, partnership, corporation, limited liability company, association, business trust, joint venture, governmental entity, business entity or other entity of any kind or nature, including any business unit of such Person.
(kk) "Personal Property Leases" has the meaning assigned to it in Section 4.10(a).
(ll) "Purchaser Common Stock" means the common stock of the Purchaser.
(mm) "Real Property Leases" has the meaning assigned to it in Section 4.20(b).
(nn) "Representatives" means with respect to any Person, its stockholders, employees, officers, directors, investment bankers, attorneys, agents, representatives or Affiliates.
(oo) "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations thereto.
(pp) "Securities Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereto.
(qq) "Subsidiary" or “Subsidiaries” when used with respect to any Person or entity means any other Person or entity, whether incorporated or unincorporated, of which (i) more than fifty percent of the securities or other ownership interests or (ii) securities or other interests having by their terms ordinary voting power to elect more than fifty percent of the board of directors or others performing similar functions with respect to such corporation or other organization, is directly owned or controlled by such Person or by any one or more of its Subsidiaries.
(rr) "Surviving Corporation" has the meaning assigned to it in Section 2.1.
(ss) "Tax" means any United States federal, state or local or foreign income, gross receipts, license, severance, occupation, premium, environmental (including taxes under Code Section 59A), customs, duties, profits, disability, registration, alternative or add-on minimum, estimated, withholding, payroll, employment, unemployment insurance, social security (or similar), excise, sales, use, value-added, occupancy, franchise, real property, personal property, business and occupation, windfall profits, capital stock, stamp, transfer, workmen's compensation or other tax, fee or imposition of any kind whatsoever, including any interest, penalties, additions, assessments or deferred liability with respect thereto, whether disputed or not.
(tt) "Tax Audits" has the meaning assigned to it in Section 4.14(e).
(uu) "Tax Law" means the Law (including any applicable regulations or any administrative pronouncement) of any Governmental Authority relating to any Tax.
(vv) "Tax Return" means any federal, state, local or foreign return, declaration, report, claim for refund, amended return, declaration of estimated Tax or information return or statement relating to Taxes, and any schedule, exhibit, attachment or other materials submitted with any of the foregoing, and any amendment thereto.
(ww) "Third Party Claim" has the meaning assigned to it in Section 10.4.
(xx) "Trade Secrets" means any and all technology, trade secrets and other confidential information, know-how, inventions, proprietary processes, formulae, algorithms, models, and methodologies held for use or used in or necessary for the conduct of the Company's or its Subsidiaries' business as currently conducted or contemplated to be conducted.
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1.2 Accounting Terms. All accounting terms not specifically defined in this Agreement shall be construed in accordance with GAAP consistently applied.
1.3 Singular and Plural Forms. The use herein of the singular form also denotes the plural form, and the use of the plural form herein also denotes the singular form, as in each case the context may require.
1.4 Gender Forms. The use herein of any gender word (such as "he" or "his") includes both the male and female genders.
ARTICLE II
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the relevant provisions of the Delaware General Corporation Law, the Purchaser shall be merged with and into the Company (the “Merger”). The Company shall be the surviving corporation in the Merger (the “Surviving Corporation”) under the name “American Roadside Burgers Inc.” and shall continue its existence under the Law of the State of Delaware. In connection with the Merger, the separate corporate existence of the Company and its Subsidiaries shall cease.
2.2 Closing. The closing of the Merger (the "Closing") shall take place (i) at the offices of Chanticleer Holdings, Inc., 11220 Elm Lane, Suite 203; Charlotte, North Carolina 28277, on or about September 30, 2013, but in any event within three Business Days after the day on which the last to be fulfilled or waived of the conditions set forth in Articles VII and VIII (other than those conditions that by their nature are to be fulfilled at the Closing, but subject to the fulfillment or waiver of such conditions) shall be fulfilled or waived in accordance with this Agreement, or (ii) at such other place and time or on such other date as the parties may agree in writing (the “Closing Date”). Notwithstanding anything to the contrary, if Parent is required to obtain NASDAQ approval of this Agreement and transaction contemplated hereby (the “Nasdaq Approval”) then the Closing will be held at the earliest practicable date following Parent’s receipt of such approval.
2.3 Effective Time of the Merger. The Merger shall become effective on the date and at the time at which a properly executed certificate of merger (the “Certificate of Merger”) is duly filed with the Secretary of State of the State of Delaware, or at such later date and time as may be specified therein. The Certificate of Merger filing shall be made as soon as practicable on or after the Closing Date. When used in this Agreement, the term "Effective Time" means the date and time on which such Certificate of Merger is so filed or such later time as the parties shall designate therein.
2.4 Certificate of Incorporation and Bylaws. Upon the Merger becoming effective, the Certificate of Incorporation of the Company (the “Certificate of Incorporation”) shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as permitted by law and this Agreement. Upon the Merger becoming effective, the Bylaws of the Corporation (the “Bylaws”) in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter amended as permitted by law and this Agreement.
2.5 Directors and Officers. The directors of the Purchaser immediately prior to the Effective Time and the officers of the Purchaser immediately prior to the Effective Time shall be the directors and officers, respectively, of the Surviving Corporation until their respective death, permanent disability, resignation or removal or until their respective successors are duly elected and qualified.
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ARTICLE III
CONVERSION OF SHARES
3.1 Effect on Capital Stock.
(a) Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Parent, the Purchaser, the Company, or any stockholder thereof, each share of the Company’s Common Stock, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive such number of shares according to the Exchange Ratio in Section 3.1(b) of the Parent’s Common Stock. Each of the shares of the Company’s Common Stock converted in accordance with this Section 3.1 shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such shares of the Company’s Common Stock shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 3.1, upon the surrender of such certificate in accordance with Section 3.2 hereof.
(b) Exchange Ratio. All Company Shareholders shall receive an aggregate amount of seven hundred and forty thousand (740,000) Parent Units, (as hereinafter defined) on a pro rata basis, with each Parent Unit consisting of one (1) share of common stock of Parent and one (1) five year warrant to purchase one (1) share of common stock of Parent at an initial exercise price of five dollars per share (the “Parent Units”).
(c) Options and Warrants. Any outstanding Options and Warrants of the Company shall be cancelled or be deemed canceled immediately prior to the Effective Time.
3.2 Surrender of Certificates Representing Shares. At and after the Effective Time, each shareholder of the Company shall be entitled to receive the consideration set forth in Section 3.1 in respect of the shares of capital stock of the Company owned by such shareholder. At and after the Effective Time, each share of capital stock of the Company shall be deemed cancelled and surrendered to the Parent. Each certificate representing shares of Parent Common Stock issued upon surrender of the Company’s Common Stock shall bear a legend stating:
"THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SALE OR TRANSFER IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT, AND IF THE ISSUER REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL."
3.3 No Fractional Shares. No certificates or scrip representing fractional shares of the Parent’s Common Stock and/or Warrants shall be issued upon the surrender for exchange of certificates representing shares of the Company’s Common Stock and/or Warrants. In lieu of any such fractional shares of the Parent’s Common Stock and/or Warrants, each holder of shares of the Company’s Common Stock and/or Warrants who would otherwise have been entitled to a fraction of a share of the Parent’s Common Stock and/or Warrants upon surrender of stock certificates for exchange pursuant to this Article III will be issued one full share, rounded to the highest number, of the Parent’s Common Stock and/or one full Warrant in consideration of said fractional share of the Parent’s Common Stock.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, as follows:
4.1 Organization and Good Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite power and authority and all governmental licenses, authorizations, consents and approvals required to own, operate and lease its properties and assets and to conduct its business as it is now being owned, operated, leased and conducted, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement. The Company is duly qualified or licensed to do business as a foreign corporation, and is in good standing as a foreign corporation, in every jurisdiction in which the failure to be so qualified or licensed or in good standing would have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement. Schedule 4.1 hereto sets forth a true and complete list of all foreign jurisdictions in which the Company is so qualified or licensed and in good standing.
4.2 Corporate Records. Copies of the certificate of incorporation of the Company, certified by the Secretary of State of the State of Delaware, and of the by-laws of the Company, certified by the Secretary of such corporation, heretofore delivered to the Purchaser are true and complete copies of such instruments as amended to the date of this Agreement. Such certificate of incorporation and by-laws of the Company are in full force and effect. The Company is not in violation of any provision of its certificate of incorporation or by-laws.
4.3 Corporate Power and Authority. The Company has the requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company, the performance by it of its obligations hereunder, and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate and stockholder actions on the part of the Company. This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors' rights generally and subject to general principles of equity.
4.4 Capitalization.
(a) The authorized capital stock of the Company consists of 50,000,000 shares of Company Common Stock, par value $0.0001 per share and 5,000,000 blank check preferred stock, par value $0.0001 per share. There shall be 21,951,182 shares of Company Common Stock outstanding immediately prior to Closing, of which all shares are being cancelled concurrently with the Closing. No shares of preferred stock are outstanding. No shares of Company Common Stock are held as treasury shares, and no shares of Company preferred stock are held as treasury shares.
(b) All of the issued and outstanding shares of Company Common Stock are validly issued, fully paid and nonassessable and free of preemptive rights and were issued in compliance with all applicable Laws concerning the issuance of securities. There are not any shares of capital stock of the Company issued or outstanding or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of its capital stock or securities, except those listed on Schedule 4.4(b), all of which shall either be exchanged for Parent Units or will be terminated at the Effective Time. There are not any notes, bonds, debentures or other indebtedness of the Company having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters upon which the Company’s stockholders may vote. There are no outstanding contractual obligations, commitments, understandings or arrangements of the Company to repurchase, redeem or otherwise acquire or make any payment in respect of or measured or determined based on the value or market price of any shares of capital stock of the Company, and there are no irrevocable proxies with respect to shares of capital stock of the Company. There are no agreements or arrangements pursuant to which the Company is or could be required to register shares of Company Common Stock or other securities under the Securities Act.
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4.5 Subsidiaries. The Company does not own, directly or indirectly, any capital stock or other ownership interest in any corporation, partnership, limited liability company, joint venture or other business association or entity, other than all of the shares of common stock of its Subsidiaries. Each outstanding share of capital stock of each subsidiary is duly authorized, is validly issued fully paid, non-accessible and free of preemptive rights and is owned beneficially and of record by the Company free and clear of all security interests, liens, claims, pledges, options, rights or right of first refusal agreements, limitations on the Company’s voting rights, charges or other encumbrances of any nature whatsoever.
4.6 No Violation. Except for the filing of the Certificate of Merger, neither the execution and delivery of this Agreement by the Company, the performance by it of its obligations hereunder, nor the consummation by it of the transactions contemplated hereby, will (a) contravene any provision of the certificate of incorporation or bylaws of the Company; (b) violate, be in conflict with, constitute a default under, permit the termination of, cause the acceleration (whether after the giving of notice or the lapse of time or both) of the maturity of, any debt or obligation of the Company or binding on the Surviving Corporation after the Closing, require the consent of any other party to constitute a breach of, create a loss of a benefit under, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company under, any note, bond, license, mortgage, indenture, lease, contract, agreement, instrument or commitment relating to the Company to which it is a party or by which it or any of its assets or properties constituting part of the business of the Company are bound.
4.7 Approvals.
(a) Except for the filing of the Certificate of Merger, no declaration, filing or registration with, notice to, or Approval of, any Governmental Authority is required to be made, obtained or given by or with respect to the Company or its Subsidiaries in connection with the execution, delivery or performance by the Company or its Subsidiaries of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated hereby.
(b) The Company and its Subsidiaries have all Approvals required for its operation and the use and ownership or leasing of its properties and assets that constitute part of the business, as currently operated, used, owned or leased. All of such Approvals are valid, in full force and effect and in good standing, except where the failure to be so would not, individually or in the aggregate, have a Material Adverse Effect on the Condition of the Company. There is no proceeding pending or, to the knowledge of the Company, threatened, that disputes the validity of any such Approval or that is likely to result in the revocation, cancellation or suspension, or any adverse modification of any such Approval.
4.8 Financial Statements; No Undisclosed Liabilities.
(a) The Company has delivered to the Purchaser, and Purchaser acknowledges the receipt of, true, correct and complete copies of the Company’s audited consolidated balance sheets as of December 31, 2011, and 2012, and the audited consolidated statements of income for the years ended December 31, 2011, and 2012 (the “Annual Financial Statements”), the Interim Financial Statements for the Quarter ending June 30, 2013 (collectively, the “June 30, 2013 Financial Statements”). Should the Closing occur after September 30, 2013, the Company shall deliver to the Purchaser unaudited financial statements for the monthly periods ended July 30, 2013, August 30, 2013, and for the Quarter ending September 30, 2013 and the related statements of cash flows, once such financial statements have been prepared by the Company (the “Alternate Financial Statements”) (the Annual Financial Statements, the June 30, 2013 Financial Statements and the Alternate Financial Statements, collectively referred to as the “Financial Statements”). The Financial Statements are based upon the information contained in the books and records of the Company and fairly present, in all material respects, the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein. The Annual Financial Statements have been prepared in accordance with GAAP, consistently applied throughout the periods indicated. The Interim Financial Statements and the Alternate Financial Statements have been, or will be, prepared in accordance with GAAP applicable to unaudited interim financial statements (and thus may not contain all notes and may not contain prior period comparative data which are required to be prepared in accordance with GAAP) consistent with the Annual Financial Statements and reflect all adjustments necessary to a fair statement of the results for the interim period(s) presented.
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(b) Except for the indebtedness set forth on Schedule 4.8(b) or as reflected in the Interim Balance Sheet, the Company does not have, and as a result of the transactions contemplated by this Agreement, will not have, any Liabilities (whether absolute, accrued, contingent or otherwise, and whether due or to become due), except for Liabilities (i) incurred in the ordinary course of business consistent with past practice since the date of the Interim Balance Sheet, or (ii) which, individually or in the aggregate, will not have a Material Adverse Effect on the Condition of the Company.
(c) The minute books and stock record books of the Company have been maintained in accordance with sound business practices. The minute books of the Company contain accurate and complete records of all meetings held of, and corporate action taken by, the Company’s stockholders, the Board of Directors, and committees of the Board of Directors of the Company.
4.9 Absence of Certain Changes.
(a) Since December 31, 2012 and, prior to the date hereof, the Company has conducted its business in the ordinary course, consistent with past practice, and there has not been:
(i) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company, other than as shown on the Interim Financial Statements;
(ii) any grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of the Company; entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company; increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements; or increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or senior employees of the Company, in each case, other than in the ordinary course of business consistent with past practice.
(b) Since December 31, 2012 and prior to the date hereof, the Company has conducted its business in the ordinary course, consistent with past practice, and there has not been:
(i) except as set forth on Schedule 4.9(b)(i), any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any repurchase, redemption or other acquisition by the Company of any outstanding shares of their capital stock or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments which obligate the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of its capital stock or securities;
(ii) any amendment of any material term of any outstanding security of the Company;
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(iii) any transaction or commitment made, or any contract, agreement or settlement entered into, by (or judgment, order or decree affecting) the Company relating to its assets or business (including the acquisition or disposition of any material amount of assets) or any relinquishment by the Company of any contract or other right, other than transactions, commitments, contracts, agreements, settlements or relinquishments in the ordinary course of business consistent with past practice and those contemplated by this Agreement;
(iv) any change in any method of accounting or accounting practice by the Company, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; or
(v) any material Tax election made or changed, any material audit settled or any material amended Tax Returns filed.
4.10 Leases of Personal Property; Material Contracts; No Default.
(a) Schedule 4.10(a) hereto sets forth a true and complete list of each lease of personal property to which the Company and its Subsidiaries are a party or by which it or its properties or assets are bound which provides for payments in excess of $10,000 per annum and which has a remaining term in excess of one year (collectively, the “Personal Property Leases”). The Company has delivered or made available to the Purchaser a true and complete copy of each of the Personal Property Leases.
(b) Schedule 4.10(b) hereto sets forth a true and complete list of all agreements (including, but not limited to any agreements relating to indebtedness or future expenditures) involving amounts greater than $10,000.00 individually or $25,000.00 in the aggregate, to which the Company and its Subsidiaries are a party or by which it or any of its properties or assets are bound (collectively, the “Contracts”). The Company has delivered or made available to the Purchaser a true and complete copy of each of the Contracts or other agreements listed on Schedule 4.10(b) hereto.
(c) Except as set forth on Schedule 4.10(c) hereto, the Company and its Subsidiaries have performed in all material respects, or is now performing in all material respects, its obligations under, and is not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor has it received notice of any asserted claim of a material default by the Company under, or a material breach or violation by the Company or its Subsidiaries of, any of the Personal Property Leases or Contracts and, to the knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder.
4.11 Intellectual Property Matters.
(a) Schedule 4.11(a) sets forth, for all Intellectual Property owned by the Company, a complete and accurate list, of all U.S. and foreign: (i) patents and patent applications; (ii) registered Trademarks and material unregistered Trademarks; and (iii) copyright registrations, copyright applications and material unregistered copyrights.
(b) Schedule 4.11(b) sets forth a complete and accurate list of all agreements granting or obtaining any right to use or practice any rights under any Intellectual Property, or right to compensation from the Company by reason of the use, exploitation, or sale of any Intellectual Property, to which the Company is a party or otherwise bound, as licensee or licensor thereunder, including, without limitation, license agreements, settlement agreements and covenants not to sue (collectively, the “License Agreements”).
(c) Except as set forth on Schedule 4.11(c): (i) the Company owns or has the right to use all Intellectual Property, free and clear of all liens or other encumbrances; (ii) any Intellectual Property owned or used by the Company has been duly maintained, is valid and subsisting, in full force and effect and has not been cancelled, expired or abandoned, and, to the knowledge of the Company; (iii) the Company has no knowledge that any of its operations constitute infringement or misappropriation, on any Intellectual Property right of another Person; (iv) the Company has not received notice from any third party regarding any assertion or claim challenging the validity of any Intellectual Property owned or used by the Company and the Company does not have any knowledge of any basis for such a claim; (v) the Company has not licensed or sublicensed its rights in any Intellectual Property; and (vi) the Company has no knowledge that any third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by the Company;
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4.12 Litigation. Except as set forth on Schedule 4.12, there is no Action pending against or affecting or, to the knowledge of the Company, threatened against or affecting, the Company, its Subsidiaries, or any of its assets, properties or rights before any court or arbitrator or any other Governmental Authority. To the knowledge of the Company, there are no facts that would likely result in any such Action.
4.13 Compliance with Laws. The Company and its Subsidiaries are in compliance in all material respects with all Laws applicable thereto, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement. The Company and its Subsidiaries are not at present charged with or, to the knowledge of the Company, threatened with any charge concerning or under any investigation with respect to, any violation, in any material respect, of any provision of any Law, and the Company and its Subsidiaries are not in violation of or in default under, and to the knowledge of the Company, no event has occurred which, with the lapse of time or the giving of notice or both, would result in the violation of or default under, the terms of any judgment, decree, order, injunction or writ of any court or other Governmental Authority, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement.
4.14 Taxes.
(a) The Company has duly and timely filed (or there has been filed on its behalf) with the appropriate Governmental Authorities all Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete; and timely paid (or properly accrued on the Company's books), or there has been paid on its behalf all Taxes due from it or claimed to be due from it by any Governmental Authority (whether or not set forth on any Tax Return);
(b) The Company has complied in all material respects with all applicable Tax Laws relating to the payment and withholding of Taxes and has, within the time and manner prescribed by law, withheld and paid over to the proper Governmental Authority all amounts required to be withheld and paid over under all applicable Tax Laws;
(c) There are no Liens for Taxes upon the assets or properties of the Company except for statutory Liens for current Taxes not yet due;
(d) The Company has not requested any extension of time within which to file any Tax Return in respect of any taxable year which has not since been filed, and no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns has been given by or on behalf of the Company;
(e) No federal, state, local or foreign audits, review, or other Actions ("Tax Audits") exist or have been initiated with regard to any Taxes or Tax Returns of the Company, and the Company has not received any notice of such an Audit;
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(f) All Tax deficiencies which have been claimed, proposed or asserted against the Company by any taxing authority have been fully paid, and there are no other Audits by any taxing authority in progress relating to the Company or the business of the Company, nor has the Company or to the Company's knowledge, any of its stockholders, directors or officers received any notice from any taxing authority that it intends to conduct such an audit or investigation. No issue has been raised by any taxing authority in any current or prior examination which, by application of the same principles, would reasonably be expected to result in a proposed deficiency for any subsequent period. The Company is not subject to any private letter ruling of the Internal Revenue Service or any comparable ruling of any other taxing authority;
(g) No claim has been made by a Taxing authority in a jurisdiction where the Company does not file Tax Returns to the effect that the Company is or may be subject to taxation by that jurisdiction;
4.15 Insurance. Schedule 4.15 hereto sets forth a true and complete list of all insurance policies or binders maintained by or for the benefit of the Company and its directors, officers, employees or agents. The Company has delivered or made available to the Purchaser true and complete copies of such policies and binders. Except as set forth on Schedule 4.15 hereto, (a) all such policies or binders are in full force and effect and no premiums due and payable thereon are delinquent, (b) there are no pending material claims against such insurance policies or binders by the Company as to which the insurers have denied liability, (c) the Company has complied in all material respects with the provisions of such policies and (d) there exist no material claims under such insurance policies or binders that have not been properly and timely submitted by the Company to its insurers.
4.16 Employee Benefit Plans.
(a) For purposes of this Agreement, the term "Company Employee Plans" shall mean and include: all Company Stock Plans, arrangement or policy applicable to any director, former director, employee or former employee of the Company and each plan, program, policy, agreement or arrangement (written or oral), providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other employee benefits of any kind, whether funded or unfunded, which is maintained, administered or contributed to by the Company and covers any employee or director or former employee or director of the Company, or under which the Company has any Liability contingent or otherwise (including but not limited to each material "employee benefit plan," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), but excluding any such plan that is a "multiemployer plan," as defined in Section 3(37) of ERISA). Neither the Company nor any of its Affiliates contributes to, or is required to contribute to, any "multiemployer plan" as defined in Section 3(37) of ERISA. Schedule 4.16(a) sets forth a true, accurate and complete list of all Company Employee Plans.
(b) Each Company Employee Plan has been established and maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (including but not limited to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the aggregate, have a Material Adverse Effect on the Company.
(c) Except as set forth on Schedule 4.16(c), no director or officer or other employee of the Company will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any Company Employee Plan or other benefit under any compensation plan or arrangement of the Company) solely as a result of the transactions contemplated hereby; and (ii) no payment made or to be made to any current or former employee or director of the Company or any of its Affiliates by reason of the transactions contemplated hereby (whether alone or in connection with any other event, including, but not limited to, a termination of employment) will constitute an "excess parachute payment" within the meaning of Section 280G of the Code.
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(d) The Company is in compliance with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and codes respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, and no work stoppage or labor strike against the Company is pending or threatened, nor is the Company or its Subsidiaries involved in or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any employees, in each case except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. There are no suits, Actions, disputes, claims (other than routine claims for benefits), investigations or audits pending or, to the knowledge of the Company, threatened in connection with any Company Employee Plan, but excluding any of the foregoing which would not have a Material Adverse Effect on the Company.
(e) Schedule 4.16(e) sets forth all management, consulting, non-compete and employment agreements of the Company.
4.17 Environmental Matters. No written notice, notification, demand, request for information, citation, summons, complaint or order has been received by, and no investigation, Action, claim, suit, proceeding or review is pending or, to the knowledge of the Company, threatened by any Person against, the Company or its Subsidiaries, and no penalty has been assessed against the Company or its Subsidiaries, in each case, with respect to any matters relating to or arising out of any Environmental Law; the Company is in compliance with all Environmental Laws; and there are no Liabilities of or relating to the Company relating to or arising out of any Environmental Law and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a Liability.
4.18 Labor Matters. There is no unfair labor practice charge or complaint against the Company or its Subsidiaries pending before the National Labor Relations Board, any state labor relations board or any court or tribunal and, to the knowledge of the Company, none is or has been threatened; there is no labor strike, dispute, request for representation, organizing activity, slowdown or stoppage actually pending against or affecting the Company or its Subsidiaries and, to the knowledge of the Company, none is or has been threatened. Except as set forth on Schedule 4.18, all Persons treated by the Company as independent contractors for any purpose do satisfy and have satisfied the requirements of Law to be so treated, and the Company has fully and accurately reported the amounts paid by the Company to or on behalf of such Persons on IRS Forms 1099 when required to do so. No individual who has performed services for or on behalf of the Company, and who has been treated by the Company as an independent contractor, is classifiable as a "leased employee," within the meaning of Section 414(n)(2) of the Code, with respect to the Company, or with respect to any customer of the Company.
4.19 Personal Property. Schedule 4.19 hereto sets forth a true and complete list of all equipment and fixtures having an acquisition cost of $25,000 or more owned by the Company.
4.20 Real Property.
(a) The Company does not own any real property.
(b) Set forth on Schedule 4.20(b) hereto is a list of all leases, subleases, licenses and other agreements (collectively, the “Real Property Leases”) under which the Company and/or its Subsidiaries use or occupy or have the right to use or occupy any real property used by the Company and/or its Subsidiaries (the land, buildings and other improvements covered by the Real Property Leases being herein called the "Leased Real Property").
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(c) The Company and its Subsidiaries have performed in all material respects, or are now performing in all material respects, their obligations under, and are not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor have they received notice of any asserted claim of a material default by the Company under, or a material breach or violation by the Company and / or its Subsidiaries of any of the Real Property Leases and, to the knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder.
4.21 Accounts Receivable. The accounts receivable of the Company (i) arose from bona fide transactions in the ordinary course of business, are payable on ordinary trade terms and are, to the knowledge of the Company, not subject to any valid setoff, counterclaims or defense, and (ii) are legal, valid and binding obligations of the respective debtors.
4.22 Inventory. Schedule 4.22 sets forth the Company’s inventory for August 2013.
4.23 Finders' or Advisors' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Company or the Company’s stockholders who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.
4.24 Related-Party Transactions. No employee, officer, or director of the Company or member of his or her immediate family is currently indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any of such individuals. No employee, director, or officer of the Company and no member of the immediate family of any employee, officer, or director of the Company is directly or indirectly interested in any material contract with the Company.
4.25 Required Vote. The affirmative vote or consent of the holders of a majority of the outstanding shares of the Company Common Stock with respect to which votes are entitled to be cast in connection with the approval of this Agreement (the “Company Shareholder Approval”), is the only vote or consent of the holders of any class or series of capital stock or other equity interests of the Company necessary to approve this agreement or the Merger. Such vote or consent has been obtained prior to execution of this Agreement.
4.26 Disclosure. Neither this Agreement, nor any of the Exhibits or Schedules hereto nor any list, certificate, schedule or other instrument, document, agreement or writing furnished or to be furnished to, or made with Purchaser pursuant hereto or in connection with the negotiation, execution or performance hereof, contains any untrue statement by the Company of a material fact or omits to state any material fact necessary to make any statement herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PARENT
Each of the Parent and Purchaser hereby represent and warrant to the Company as follows:
5.1 Organization and Good Standing. The Purchaser and Parent are corporations duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite power and authority and all governmental licenses, authorizations, consents and approvals required to own, operate and lease its properties and assets and to conduct its business as it is now being owned, operated, leased and conducted. Purchaser and Parent are duly qualified or licensed to do business as a foreign corporation, and are in good standing as a foreign corporation, in every jurisdiction in which the failure to be so qualified or licensed or in good standing would have a Material Adverse Effect on Purchaser or Parent’s business or operations or would adversely affect its ability to consummate the transactions provided for or contemplated by this Agreement.
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5.2 Corporate Records. Copies of the certificate of incorporation of the Parent and Purchaser, certified by the Secretary of State of the State of Delaware, and of the by-laws of the Parent and Purchaser, certified by the Secretary of such corporation, heretofore delivered to the Company are true and complete copies of such instruments as amended to the date of this Agreement. Such certificates of incorporation and by-laws of the Parent and Purchaser are in full force and effect. The Parent and Purchaser are not in violation of any provision of their respective certificates of incorporation or by-laws.
5.3 Corporate Power and Authority. Each of the Parent and Purchaser has the requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby. The execution and delivery of this Agreement by each of the Parent and Purchaser, the performance by them of their obligations hereunder and the consummation by them of the transactions contemplated hereby have been duly authorized by all necessary corporate actions of the Parent and Purchaser. This Agreement constitutes the legal, valid and binding obligation of each of the Parent and Purchaser, enforceable against them in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors' rights generally and subject to general principles of equity.
5.4 Finders' or Advisors' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Parent and/or Purchaser who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.
5.5 No Violation. Except for the filing of the Certificate of Merger and any filings required pursuant to federal or state securities laws, neither the execution and delivery of this Agreement by the Parent and Purchaser, the performance by Parent and Purchaser of their respective obligations hereunder, nor the consummation by Parent and Purchaser of the transactions contemplated hereby, will (a) contravene any provision of the certificate of incorporation or bylaws of the Parent or Purchaser; (b) violate, be in conflict with, constitute a default under, permit the termination of, cause the acceleration (whether after the giving of notice or the lapse of time or both) of the maturity of, any debt or obligation of the Parent or Purchaser, require the consent of any other party to, constitute a breach of, create a loss of a benefit under, or result in the creation or imposition of any Lien upon any of the properties or assets of the Parent or Purchaser under, any note, bond, license, mortgage, indenture, lease, contract, agreement, instrument or commitment relating to the Parent or Purchaser to which it is a party or by which it or any of its assets or properties constituting part of its businesses is bound.
5.6 Approvals. Except for the filing of the Certificate of Merger, and any filings required pursuant to federal or state securities laws, no declaration, filing or registration with, notice to, nor Approval of, any Governmental Authority is required to be made, obtained or given by or with respect to the Parent or Purchaser in connection with the execution, delivery or performance by the Parent or Purchaser of this Agreement, the performance by the Parent and Purchaser of its obligations hereunder or the consummation by them of the transactions contemplated hereby.
5.7 Capitalization. As of the date of this Agreement, the Parent is authorized to issue 20,000,000 shares of common stock, of which 3,790,396 shares were issued and outstanding. All issued and outstanding shares of capital stock of the Parent are validly issued, fully paid and nonassessable.
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ARTICLE VI
COVENANTS
6.1 The Company covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Purchaser in writing:
(a) Conduct of the Company. From the date of this Agreement until the Closing, the Company shall conduct its business in the ordinary course consistent with past practice and shall use its commercially reasonable best efforts to preserve intact its business organization.
Without limiting the generality of the foregoing and, without the prior written consent of the Purchaser, from the date of this Agreement until the Closing:
(i) The Company will not adopt or propose any change in its certificate of incorporation or by-laws;
(ii) The Company will not adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(iii) The Company will not issue or sell any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of the Company;
(iv) The Company will not (A) split, combine, subdivide or reclassify its outstanding shares of capital stock, or (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock;
(v) The Company will not redeem, purchase or otherwise acquire directly or indirectly any shares of capital stock of the Company;
(vi) The Company will not amend the terms (including the terms relating to accelerating the vesting or lapse of repurchase rights or obligations) of any employee or director stock options or other stock based awards;
(vii) The Company will not (A) grant any severance or termination pay to (or amend any such existing arrangement with) any director, officer or employee of the Company, (B) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company, (C) increase any benefits payable under any existing severance or termination pay policies or employment agreements, (D) increase (or amend the terms of) any compensation, bonus or other benefits payable to directors, officers or employees of the Company, or (E) permit any director, officer or employee who is not already a party to an agreement or a participant in a plan providing benefits upon or following a "change in control" to become a party to any such agreement or a participant in any such plan;
(viii) The Company will not acquire any assets or property of any other Person except in the ordinary course of business consistent with past practice;
(ix) The Company will not sell, lease, license or otherwise dispose of any assets or property except pursuant to existing contracts or commitments or except in the ordinary course of business consistent with past practice;
(x) The Company will not enter into any joint venture, partnership or other similar arrangement;
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(xi) The Company will not take any action that would make any representation or warranty of the Company hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date;
(xii) The Company will not make or change any material Tax election, settle any material audit or file any material amended Tax Returns;
(xiii) The Company will not incur any indebtedness, other than ordinary trade payables incurred in the ordinary course (it being understood and agreed that the accrual of interest with respect to indebtedness in existence on the date of this Agreement shall not be deemed to be incurrence of indebtedness); and
(xiv) The Company will not agree or commit to do any of the foregoing.
6.2 The Parent covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Company in writing:
(i) The Parent will not take any action that would make any representation or warranty of the Parent hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date;
(ii) The Parent shall promptly seek to obtain Nasdaq Approval, if required, and shall promptly respond to any Nasdaq inquiry or request for information relating to such Nasdaq Approval; and
(iii) Not later than twelve months from the Closing Date the Parent shall obtain shareholder approval for the issuance of the warrants included in the Parent Units.
6.3 Consents and Approvals. The Company and its Subsidiaries shall use their best efforts to obtain at the earliest practicable date, and in any event prior to Closing, all Approvals reasonably requested by the Purchaser with respect to the Company and its Subsidiaries’ Contracts or that are necessary to obtain fulfillment of the conditions set forth in Article VII hereof.
6.4 No Solicitation of Transaction. The Company shall not, and shall use its best efforts to cause its Representatives not to, directly or indirectly, take any of the following actions with any Person other than the Purchaser without the prior written consent of the Purchaser: (A) solicit, initiate, facilitate or encourage, or furnish information with respect to the Company, in connection with, any inquiry, proposal or offer with respect to any merger, consolidation or other business combination involving the Company or the acquisition of all or a substantial portion of the assets of, or any securities of, the Company (an “Alternative Transaction”); (B) negotiate, discuss, explore or otherwise communicate or cooperate in any way with any third party with respect to any Alternative Transaction; or (C) enter into any agreement, arrangement or understanding with respect to an Alternative Transaction or requiring the Company to abandon, terminate or refrain from consummating a transaction with the Purchaser.
ARTICLE VII
CONDITIONS PRECENT TO THE OBLIGATIONS OF THE PURCHASER AND/OR PARENT
The obligations of the Purchaser and/or Parent to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions:
7.1 Representations and Warranties True. The representations and warranties contained in Article IV hereof, in the Schedules to this Agreement, and in all certificates delivered by the Company and the Subsidiaries to the Purchaser pursuant hereto or in connection with the transactions contemplated hereby shall be true and accurate as of the date when made and shall be deemed to be made again at and as of the Closing Date and shall then be true and accurate (except for changes contemplated by this Agreement and except for representations and warranties that by their terms speak as of the date of this Agreement or some other date which shall be true and correct only as of such date).
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7.2 Performance of Covenants. The Company and its Subsidiaries shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by them prior to or on the Closing Date.
7.3 No Governmental Proceeding. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits the consummation of the transactions contemplated by this Agreement.
7.4 Certificates. The Company and its Subsidiaries shall have furnished the Purchaser with such certificates to evidence compliance with the conditions set forth in this Article VII as may be reasonably requested by Purchaser.
7.5 Consents. The Company and its Subsidiaries shall have obtained all consents which, the failure to so obtain would have a Material Adverse Effect on the Condition of the Company.
7.6 No Material Adverse Effect. There shall have been, between the date of this Agreement and the Closing Date, no Material Adverse Effect on the Company.
7.7 Delivery of Good Standing Certificates and Corporate Resolutions. The Purchaser shall have received certificates of good standing with respect to the Company and its Subsidiaries issued by the jurisdiction of its incorporation. The Purchaser shall have received copies of the resolutions of the Company and its Subsidiaries approving this Agreement, the Merger and the transactions contemplated herein, certified by an appropriate officer.
7.8 Financial Statements. The Company shall have provided the Purchaser with copies of the Annual Financial Statements and the Interim Financial Statements.
7.9 Director and Officer Resignations. Effective as of the Effective Time, each of the Company's directors and officers shall have resigned.
7.10 Due Diligence. The Purchaser shall, in its sole reasonable discretion, have completed and be reasonably satisfied with its business, accounting, and legal due diligence review of the Company.
7.11 Certain Notices. From and after the date of this Agreement until the Effective Time, the Company shall promptly notify the Purchaser of: (a) the occurrence, or non-occurrence of any event that would be likely to cause any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied or (b) the failure of the Company to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would reasonably be expected to result in any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 7.11 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
7.12 Public Announcements. The Company agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by any party without the prior written consent of the Parent (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by applicable law or the rules or regulations of any applicable United States securities exchange or regulatory or governmental body to which the relevant party is subject, in which case the party required to make the release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance. The Company agrees that the press release announcing the execution and delivery of this Agreement shall be a joint release of, and shall not be issued prior to the approval of the Parent.
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7.13 Shareholder Approval of Company Shareholders. The approval of this Agreement by the Company’s Shareholders shall have been obtained and the Company shall have provided evidence satisfactory to Purchaser that Company’s shareholders are all “accredited investors” within the meaning of the Securities Act.
7.14 Shareholder Approval of Parent Shareholders. If required, the approval of this Agreement by the Parent’s Shareholders shall have been obtained.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY
The obligations of the Company to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions:
8.1 Representations and Warranties True. The representations and warranties contained in Article V hereof and in all certificates delivered by the Parent and Purchaser to the Company pursuant hereto or in connection with the transactions contemplated hereby shall be true and accurate as of the date when made and shall be deemed to be made again at and as of the Closing Date and shall then be true and accurate (except for changes contemplated by this Agreement and except for representations and warranties that by their terms speak as of the date of this Agreement or such other date which shall be true and accurate only as of such date).
8.2 Performance of Covenants. The Parent and Purchaser shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by Parent and Purchaser prior to or on the Closing Date.
8.3 No Governmental Proceeding. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered into any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits the consummation of the transactions contemplated by this Agreement.
8.4 Certificates. The Parent and Purchaser shall have furnished the Company with such certificates to evidence compliance with the conditions set forth in this Article VIII as may be reasonably requested by the Company.
8.5 Consents. Parent and Purchaser shall have obtained all consents which, the failure to so obtain would have a Material Adverse Effect on the Condition of the Parent or Purchaser.
8.6 Delivery of Good Standing Certificates and Corporate Resolutions. The Company shall have received certificates of good standing with respect to the Parent and Purchaser issued by the jurisdiction of its incorporation. The Company shall have received copies of the resolutions of the Parent and Purchaser approving this Agreement, the Merger and the transactions contemplated herein, certified by an appropriate officer.
8.7 Certain Notices. From and after the date of this Agreement until the Effective Time, each of the Parent and Purchaser shall promptly notify the Company of: (a) the occurrence, or non-occurrence of any event that would be likely to cause any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied or (b) the failure of the Parent or Purchaser, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would reasonably be expected to result in any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 8.7 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
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ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual consent of the Purchaser and the Company;
(b) by either the Purchaser or the Company if there has been a material misrepresentation or material breach on the part of the other party in the representations, warranties or covenants set forth in this Agreement which is not cured within ten Business Days after such other party has been notified in writing of the intent to terminate this Agreement pursuant to this clause (b);
(c) by either the Purchaser or the Company, if any permanent injunction or action by any court or other Governmental Authority of competent jurisdiction enjoining, denying Approval of or otherwise prohibiting consummation of any of the transactions contemplated by this Agreement shall become final and nonappealable;
9.2 Effect of Termination. In the event of termination of this Agreement as expressly permitted under Section 9.1 hereof, this Agreement shall forthwith become void (except for this Section 9.2) and there shall be no Action on the part of the Company, the Company’s stockholders, the Purchaser, the Parent or their respective officers, directors or affiliates; provided, that, if such termination shall result from a material misrepresentation by a party or the willful breach by a party of the covenants of such party contained in this Agreement, such party shall be fully liable for any and all Damages sustained or incurred as a result of such breach.
9.3 Amendment. This Agreement may not be amended, except by an instrument in writing signed on behalf of each of the parties hereto.
9.4 Extension; Waiver. At any time prior to the Closing, the parties hereto may (i) extend the time for the performance of any of the obligations or other acts of any other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, and (iii) 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 if set forth in writing in an instrument signed by or on behalf of such party. The waiver by any party hereto of a breach of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
ARTICLE X
INDEMNITY
10.1 Indemnification by the Company. Each of the Company and its Subsidiaries jointly and severally, covenants and agrees to indemnify, defend, protect and hold harmless the Purchaser and its officers, directors, members, managers, employees, stockholders, assigns, successors and Affiliates (individually, a “Buyer Party” and collectively “Buyer Parties”) from, against and in respect of all Damages, Actions, and interest (including interest from the date of such Damages) suffered, sustained, incurred or paid by any Buyer Party, in any Action: between a Buyer Party and the Company or its Subsidiaries; or between a Buyer Party and a third party, in connection with, resulting from or arising out of, directly or indirectly: (i) the inaccuracy of any representation or the breach of any warranty set forth in this Agreement or certificates delivered on the part of the Company or its Subsidiaries in connection with the Closing; (ii) the nonfulfillment of any covenant or agreement on the part of the Company or its Subsidiaries set forth in this Agreement or in any agreement or certificate executed and delivered by the Company or its Subsidiaries pursuant to this Agreement or in the transactions contemplated hereby; (iii) claims (whether based on contract, tort, fiduciary or any other theory) of any actual or purported, beneficial or record, current or past, holder of the Company's or its subsidiaries’ debt or equity securities (or any interest or right therein) in connection with, resulting from or arising out of, directly or indirectly, such debt or equity securities (or any interest or right therein) that is based on any action taken at or prior to the Effective Time.
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10.2 Indemnification by the Parent and Purchaser. Each of the Parent and Purchaser jointly and severally, covenants and agrees to indemnify, defend, protect and hold harmless the Company and its officers, directors, members, managers, employees, stockholders, assigns, successors and Affiliates (individually, a “Seller Party” and collectively “Seller Parties”) from, against and in respect of all Damages, Actions, and interest (including interest from the date of such Damages) suffered, sustained, incurred or paid by any Seller Party, in any Action: between a Seller Party and the Parent and/or Purchaser; or between a Seller Party and a third party, in connection with, resulting from or arising out of, directly or indirectly: (i) the inaccuracy of any representation or the breach of any warranty set forth in this Agreement or certificates delivered on the part of the Parent or Purchaser in connection with the Closing; or (ii) the nonfulfillment of any covenant or agreement on the part of the Parent or Purchaser set forth in this Agreement or in any agreement or certificate executed and delivered by the Parent or Purchaser pursuant to this Agreement or in the transactions contemplated hereby.
10.3 Notice of Claims. An Indemnified Party shall notify the Indemnifying Party within a reasonable period of time after becoming aware of any Damages which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 10.1 hereof. Such notice shall include an estimate of the Damages that the Indemnified Party has determined may be incurred. As soon as practicable after the date of such notice, the Indemnified Party shall provide to the Indemnifying Party all information and documentation necessary to support and verify the Damages so claimed and the Indemnifying Party and its agents shall be given access to all books and records in the possession or control of the Indemnified Party which the Indemnifying Party reasonably determines to be related to such claim. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such notice, or fails to notify the Indemnified Party within 30 days after delivery of such notice by the Indemnified Party whether the Indemnifying Party disputes the claim or the estimated amount of Damages described in such notice, the estimated Damages in the amount specified in the Indemnified Party's notice will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party.
10.4 Matters Involving Third Parties.
(a) If any third party shall commence an Action against any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification under Section 10.1, the Indemnified Party shall notify the Indemnifying Party in writing as soon as practicable.
(b) The Indemnifying Party shall have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 12.5, of the Third Party Claim as provided in Section 10.4 or, if the Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 10.1) that the Indemnified Party will be entitled to indemnification under Section 10.1 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party thereby unless said Indemnifying Party is prejudiced by such failure to give notice.
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(c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 10.4(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, (iii) the Indemnified Party shall cooperate within reason with the Indemnifying Party's defense of such Third Party Claim and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
ARTICLE XI
OTHER AGREEMENTS
The parties hereto agree that:
11.1 Best Efforts. The Parent, the Purchaser and the Company, shall each cooperate with the others and use (and shall cause their respective Subsidiaries to use) their respective commercially reasonable best efforts to promptly (i) take or cause to be taken all necessary actions, and do or cause to be done all things, necessary, proper or advisable under this Agreement and applicable laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including, without limitation, preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtain all Approvals required to be obtained from any third party necessary, proper or advisable to consummate the Merger and other transactions contemplated by this Agreement.
11.2 Public Announcements. At the proper time, as determined by the parties hereto in good faith consultation with each other, the Surviving Corporation shall issue a press release or make a public statement concerning this Agreement and the related transactions containing disclosure which is mutually agreeable to the parties; provided, that prior to the issuance of a press release, none of the parties hereto shall make any announcement of such transaction or disclose the existence of and/or particulars of any negotiations related thereto, including, but not limited to, the terms, conditions, consideration to be paid or other facts related to this Agreement and the related transactions.
11.3 Expenses. The Parent shall pay, on behalf of the Company, $100,000 in Company expenses (including those of counsel, accountants and other approved amounts to be determined by the Company), which shall be payable upon the Closing.
ARTICLE XII
MISCELLANEOUS
12.1 Entire Agreement. This Agreement (including the documents and instruments referred to herein) embody the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersede all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. There are no agreements, covenants, representations or warranties with respect to the transactions contemplated hereby other than those expressly set forth herein.
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12.2 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
12.3 Headings and Exhibits. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Schedules and documents referred to in this Agreement are an integral part of this Agreement.
12.4 Survival of Representations, Warranties and Covenants. All representations and warranties made by any party in or pursuant to this Agreement or in any document delivered pursuant hereto shall survive for two years after the Closing; provided, however, that in the event of fraud by any party, the representations and warranties of the party shall survive the Closing for an indefinite period of time. Notwithstanding the foregoing, if a claim notice is sent pursuant to Section 10.2, the representation or warranty with respect to which such claim notice is sent, and the related indemnification obligations set forth in Article X with respect to the claim notice, shall survive until the resolution of the claim for Damages to which such claim notice relates, or such longer period as provided in the preceding sentence. All covenants made by any party pursuant to this Agreement shall survive the Closing pursuant to their terms.
12.5 Notices. Any notices or other communications required or permitted hereunder shall be in writing and personally delivered at the addresses designated below, by facsimile transmission to the respective facsimile numbers designated below (with electronic confirmation of delivery), or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows, or to such other address or addresses as may hereafter be furnished by one party to the other party in compliance with the terms hereof:
If to the Parent, Purchaser, or Surviving Corporation:
CHANTICLEER HOLDINGS, INC.
Attention: Michael Pruitt
11220 Elm Lane, Suite 203
Charlotte, NC 28277
Facsimile No.: 704.366.2463
If to the Company (pre-Closing):
AMERICAN ROADSIDE BURGERS
Attention: Rich LaVecchia
5821 Fairview Road, Suite 104
Charlotte, NC 28209
With a copy to (which shall not constitute notice):
Ruskin Moscou Faltischek, P.C.
East Tower 15th Floor
1425 RXR Plaza
Uniondale, NY 11556-1425
Attn: Seth Rubin, Esq.
or to such other address as the Person to whom notice is to be given may have specified in a notice duly given to the sender as provided herein. Such notice, request, claim, demand, waiver, consent, approval, or other communication shall be deemed to have been given as of the date personally delivered or telefaxed, five Business Days after deposit with the U.S. Postal Service if mailed, or one Business Day if delivered by overnight mail, and, if given by any other means, shall be deemed given only when actually received by the addressees.
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12.6 Counterparts. This Agreement may be executed in any number of counterparts (which may be by facsimile or other electronic means) each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
12.7 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
[Signatures follow on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
PARENT: CHANTICLEER HOLDINGS, INC. By: Print Name: Title: PURCHASER: Chanticleer Roadside Burgers International, LLC By: Print Name: Title: COMPANY AMERICAN ROADSIDE BURGERS, INC. By: Print Name:
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"AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of September ___, 2013, by and among CHANTICLEER HOLDINGS, INC., a Delaware corporation (the “Parent”), Chanticleer Roadside Burgers International, LLC, a wholly owned subsidiary of Parent (the “Purchaser”) and AMERICAN ROADSIDE BURGERS, INC., a Delaware corporation (the “Company”). RECITALS WHEREAS, the Board of Directors of each of the Parent, the Purchaser and the Company, respectively, have determined that this Agreement and the transactions contemplated hereby, including the Merger (as defined below), are advisable and fair to, and in the best interests of, the Parent, the Purchaser, the Company, and their respective stockholders; WHEREAS, the Board of Directors of each of the Parent, the Purchaser, and the Company have each adopted resolutions approving the execution of this Agreement and the consummation of the transactions contemplated hereby; WHEREAS, the Board of Directors of each of the Parent, the Purchaser, and the Company, respectively, have approved and declared advisable and in the best interests of the Parent, the Purchaser, and the Company, respectively, this Agreement and the transactions contemplated hereby, and have determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to and in the best interests of their respective stockholders; WHEREAS, each of the Parent, the Purchaser, and the Company desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions.",
"The following terms, as used herein, shall have the following meanings: (a) \"Action\" means any action, claim, dispute, proceeding, suit or investigation (whether civil, criminal, administrative or investigative), or any appeal therefrom. (b) \"Affiliate\" means any Person, a spouse of such Person, any child or parent sharing the same household with such Person, any director or officer of such Person, and any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. (c) \"Agreement\" means this Agreement and Plan of Merger and shall include all of the Schedules and Exhibits attached hereto. (d) “Alternative Transaction” has the meaning assigned to it in Section 6.4. (e) \"Annual Financial Statements\" has the meaning assigned to it in Section 4.8(a). (f) \"Approval\" means any approval, authorization, consent, license, franchise, order, registration, permit or other confirmation of or by, or filing with, a Person. (g) \"Business Day\" means any day other than a Saturday, a Sunday, a legal holiday in the State of Delaware or the State of North Carolina or a day on which commercial banks in the State of Delaware or the State of North Carolina are permitted or authorized to close.",
"(h) \"Certificate of Merger\" has the meaning assigned to it in Section 2.3. (i) \"Closing\" and \"Closing Date\" have the meanings assigned to them in Section 2.2. (j) \"Code\" means the Internal Revenue Code of 1986, as amended, and the regulations thereunder. (k) \"Company Common Stock\" means the common stock, par value $0.0001 per share, of the Company. (l) \"Company Employee Plans\" has the meaning assigned to it in Section 4.16(a). (m) “Company Stock Plans” means a qualified, defined contribution, employee benefit (ERISA) plan designed to invest primarily in the stock of the Company. (n) \"Condition\" means, with respect to a Person, the business, liabilities, properties, prospects, assets, operations, results of operations and/or condition (financial or otherwise) of such Person. (o) \"Contracts\" has the meaning assigned to it in Section 4.10(b). (p) \"Damages\" means any claim, loss, deficiency (financial or otherwise), Liability, cost or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) or damage of any kind or nature whatsoever. (q) \"Effective Time\" has the meaning assigned to it in Section 2.3. (r) \"Environmental Laws\" means all currently existing foreign, federal, state and local laws, regulations, rules and ordinances relating to pollution or protection of the environment or human health and safety, including, without limitation, laws relating to releases or threatened releases of Hazardous Materials into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, release, transport or handling of Hazardous Materials and all laws and regulations with regard to record keeping, notification, disclosure and reporting requirements respecting Hazardous Materials, and all laws relating to endangered or threatened species of fish, wildlife and plants and the management or use of natural resources.",
"(s) \"ERISA\" has the meaning assigned to it in Section 4.16(a). (t) \"Financial Statements\" has the meaning assigned to it in Section 4.8(a). (u) \"GAAP\" means United States generally accepted accounting principles. (v) \"Governmental Authority\" means any United States federal, state, local, foreign or other governmental, administrative or regulatory authority, body, agency, court, tribunal or similar entity. (w) \"Hazardous Materials\" means any substance: (i) the presence of which requires or may require investigation or remediation of any kind under any Environmental Laws; (ii) which is defined as \"hazardous waste,\" \"hazardous material,\" \"residual waste,\" \"hazardous substance,\" \"pollutant\" or \"contaminant\" under any federal, state or local statute, regulation, rule or ordinance or amendments thereto including, without limitation, CERCLA and/or the Resource Conservation and Recovery Act (42 U.S.C.",
"Section 6901 et seq.) or (iii) which is otherwise regulated pursuant to any applicable Environmental Law. 2 (x) \"Indemnified Party\" means any party entitled to indemnification pursuant to Article 10 hereof. (y) \"Indemnifying Party\" means any party required to indemnify an Indemnified Party pursuant to Article 10 hereof. (z) \"Intellectual Property\" means trademarks, service marks, trade names, Internet domain names, designs, logos, slogans, and general intangibles of like nature, together with all goodwill, registrations and applications related to the foregoing (collectively, \"Trademarks\"); patents and industrial designs (including any continuations, divisionals, continuations-in-part, renewals, reissues, and applications for any of the foregoing); copyrights (including any registrations and applications for any of the foregoing); software; \"mask works\" (as defined under 17 USC ss. 901) and any registrations and applications for \"mask works\"; Trade Secrets; rights of publicity and privacy relating to the use of the names, likenesses, voices, signatures and biographical information of real persons. (aa) \"Interim Balance Sheet\" means the unaudited balance sheet of the Company as of June 30, 2013 previously delivered to the Purchaser.",
"(bb) \"Interim Financial Statements\" means the Interim Balance Sheet together with the unaudited statement of income and cash flow of the Company for the six-month period ended June 30, 2013 previously delivered to the Purchaser, which have been reviewed by the Company’s audit firm. (cc) \"Law\" means any federal, state, local or foreign law, statute, rule, regulation, ordinance, standard, requirement, administrative ruling, order or process (including, without limitation, any zoning or land use law or ordinance, building code, Environmental Law, securities, blue sky, civil rights or occupational health and safety law or regulation) or administrative interpretation thereof, and any court, or arbitrator's order or process. (dd) \"Leased Real Property\" has the meaning assigned to it in Section 4.20(b). (ee) \"Liability\" means any debt, liability, commitment or obligation of any kind, character or nature whatsoever, whether known or unknown, secured or unsecured, accrued, fixed, absolute, contingent or otherwise, and whether due or to become due. (ff) \"License Agreements\" has the meaning assigned to it in Section 4.11(b).",
"(gg) \"Lien\" means any lien, statutory lien, pledge, mortgage, security interest, charge, encumbrance, easement, right of way, covenant, claim, restriction, right, option, conditional sale or other title retention agreement of any kind or nature. (hh) \"Material Adverse Effect\" means any change, event, development, condition, occurrence or effect that is, or would reasonably be expected to be (a) materially adverse to the business, financial condition, assets, liabilities, or result of operations of the Company and the Company’s Subsidiaries, taken as a whole, or (b) prevents or materially delays or would reasonably be expected to prevent or materially delay, consummation of the Merger or performance by the Company of any of its material obligations under this Agreement. (ii) \"Merger\" has the meaning assigned to it in Section 2.1.",
"3 (jj) \"Person\" means any individual, partnership, corporation, limited liability company, association, business trust, joint venture, governmental entity, business entity or other entity of any kind or nature, including any business unit of such Person. (kk) \"Personal Property Leases\" has the meaning assigned to it in Section 4.10(a). (ll) \"Purchaser Common Stock\" means the common stock of the Purchaser. (mm) \"Real Property Leases\" has the meaning assigned to it in Section 4.20(b). (nn) \"Representatives\" means with respect to any Person, its stockholders, employees, officers, directors, investment bankers, attorneys, agents, representatives or Affiliates. (oo) \"Securities Act\" means the Securities Act of 1933, as amended, and the rules and regulations thereto.",
"(pp) \"Securities Exchange Act\" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereto. (qq) \"Subsidiary\" or “Subsidiaries” when used with respect to any Person or entity means any other Person or entity, whether incorporated or unincorporated, of which (i) more than fifty percent of the securities or other ownership interests or (ii) securities or other interests having by their terms ordinary voting power to elect more than fifty percent of the board of directors or others performing similar functions with respect to such corporation or other organization, is directly owned or controlled by such Person or by any one or more of its Subsidiaries. (rr) \"Surviving Corporation\" has the meaning assigned to it in Section 2.1. (ss) \"Tax\" means any United States federal, state or local or foreign income, gross receipts, license, severance, occupation, premium, environmental (including taxes under Code Section 59A), customs, duties, profits, disability, registration, alternative or add-on minimum, estimated, withholding, payroll, employment, unemployment insurance, social security (or similar), excise, sales, use, value-added, occupancy, franchise, real property, personal property, business and occupation, windfall profits, capital stock, stamp, transfer, workmen's compensation or other tax, fee or imposition of any kind whatsoever, including any interest, penalties, additions, assessments or deferred liability with respect thereto, whether disputed or not.",
"(tt) \"Tax Audits\" has the meaning assigned to it in Section 4.14(e). (uu) \"Tax Law\" means the Law (including any applicable regulations or any administrative pronouncement) of any Governmental Authority relating to any Tax. (vv) \"Tax Return\" means any federal, state, local or foreign return, declaration, report, claim for refund, amended return, declaration of estimated Tax or information return or statement relating to Taxes, and any schedule, exhibit, attachment or other materials submitted with any of the foregoing, and any amendment thereto. (ww) \"Third Party Claim\" has the meaning assigned to it in Section 10.4. (xx) \"Trade Secrets\" means any and all technology, trade secrets and other confidential information, know-how, inventions, proprietary processes, formulae, algorithms, models, and methodologies held for use or used in or necessary for the conduct of the Company's or its Subsidiaries' business as currently conducted or contemplated to be conducted.",
"4 1.2 Accounting Terms. All accounting terms not specifically defined in this Agreement shall be construed in accordance with GAAP consistently applied. 1.3 Singular and Plural Forms. The use herein of the singular form also denotes the plural form, and the use of the plural form herein also denotes the singular form, as in each case the context may require. 1.4 Gender Forms. The use herein of any gender word (such as \"he\" or \"his\") includes both the male and female genders. ARTICLE II THE MERGER 2.1 The Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the relevant provisions of the Delaware General Corporation Law, the Purchaser shall be merged with and into the Company (the “Merger”). The Company shall be the surviving corporation in the Merger (the “Surviving Corporation”) under the name “American Roadside Burgers Inc.” and shall continue its existence under the Law of the State of Delaware.",
"In connection with the Merger, the separate corporate existence of the Company and its Subsidiaries shall cease. 2.2 Closing. The closing of the Merger (the \"Closing\") shall take place (i) at the offices of Chanticleer Holdings, Inc., 11220 Elm Lane, Suite 203; Charlotte, North Carolina 28277, on or about September 30, 2013, but in any event within three Business Days after the day on which the last to be fulfilled or waived of the conditions set forth in Articles VII and VIII (other than those conditions that by their nature are to be fulfilled at the Closing, but subject to the fulfillment or waiver of such conditions) shall be fulfilled or waived in accordance with this Agreement, or (ii) at such other place and time or on such other date as the parties may agree in writing (the “Closing Date”).",
"Notwithstanding anything to the contrary, if Parent is required to obtain NASDAQ approval of this Agreement and transaction contemplated hereby (the “Nasdaq Approval”) then the Closing will be held at the earliest practicable date following Parent’s receipt of such approval. 2.3 Effective Time of the Merger. The Merger shall become effective on the date and at the time at which a properly executed certificate of merger (the “Certificate of Merger”) is duly filed with the Secretary of State of the State of Delaware, or at such later date and time as may be specified therein. The Certificate of Merger filing shall be made as soon as practicable on or after the Closing Date. When used in this Agreement, the term \"Effective Time\" means the date and time on which such Certificate of Merger is so filed or such later time as the parties shall designate therein. 2.4 Certificate of Incorporation and Bylaws. Upon the Merger becoming effective, the Certificate of Incorporation of the Company (the “Certificate of Incorporation”) shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as permitted by law and this Agreement. Upon the Merger becoming effective, the Bylaws of the Corporation (the “Bylaws”) in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter amended as permitted by law and this Agreement.",
"2.5 Directors and Officers. The directors of the Purchaser immediately prior to the Effective Time and the officers of the Purchaser immediately prior to the Effective Time shall be the directors and officers, respectively, of the Surviving Corporation until their respective death, permanent disability, resignation or removal or until their respective successors are duly elected and qualified. 5 ARTICLE III CONVERSION OF SHARES 3.1 Effect on Capital Stock. (a) Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Parent, the Purchaser, the Company, or any stockholder thereof, each share of the Company’s Common Stock, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive such number of shares according to the Exchange Ratio in Section 3.1(b) of the Parent’s Common Stock. Each of the shares of the Company’s Common Stock converted in accordance with this Section 3.1 shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such shares of the Company’s Common Stock shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 3.1, upon the surrender of such certificate in accordance with Section 3.2 hereof.",
"(b) Exchange Ratio. All Company Shareholders shall receive an aggregate amount of seven hundred and forty thousand (740,000) Parent Units, (as hereinafter defined) on a pro rata basis, with each Parent Unit consisting of one (1) share of common stock of Parent and one (1) five year warrant to purchase one (1) share of common stock of Parent at an initial exercise price of five dollars per share (the “Parent Units”). (c) Options and Warrants. Any outstanding Options and Warrants of the Company shall be cancelled or be deemed canceled immediately prior to the Effective Time. 3.2 Surrender of Certificates Representing Shares. At and after the Effective Time, each shareholder of the Company shall be entitled to receive the consideration set forth in Section 3.1 in respect of the shares of capital stock of the Company owned by such shareholder. At and after the Effective Time, each share of capital stock of the Company shall be deemed cancelled and surrendered to the Parent.",
"Each certificate representing shares of Parent Common Stock issued upon surrender of the Company’s Common Stock shall bear a legend stating: \"THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE \"ACT\"), OR APPLICABLE STATE SECURITIES LAWS AND THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SALE OR TRANSFER IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT, AND IF THE ISSUER REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.\" 3.3 No Fractional Shares. No certificates or scrip representing fractional shares of the Parent’s Common Stock and/or Warrants shall be issued upon the surrender for exchange of certificates representing shares of the Company’s Common Stock and/or Warrants. In lieu of any such fractional shares of the Parent’s Common Stock and/or Warrants, each holder of shares of the Company’s Common Stock and/or Warrants who would otherwise have been entitled to a fraction of a share of the Parent’s Common Stock and/or Warrants upon surrender of stock certificates for exchange pursuant to this Article III will be issued one full share, rounded to the highest number, of the Parent’s Common Stock and/or one full Warrant in consideration of said fractional share of the Parent’s Common Stock.",
"6 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, as follows: 4.1 Organization and Good Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite power and authority and all governmental licenses, authorizations, consents and approvals required to own, operate and lease its properties and assets and to conduct its business as it is now being owned, operated, leased and conducted, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement.",
"The Company is duly qualified or licensed to do business as a foreign corporation, and is in good standing as a foreign corporation, in every jurisdiction in which the failure to be so qualified or licensed or in good standing would have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement. Schedule 4.1 hereto sets forth a true and complete list of all foreign jurisdictions in which the Company is so qualified or licensed and in good standing. 4.2 Corporate Records. Copies of the certificate of incorporation of the Company, certified by the Secretary of State of the State of Delaware, and of the by-laws of the Company, certified by the Secretary of such corporation, heretofore delivered to the Purchaser are true and complete copies of such instruments as amended to the date of this Agreement. Such certificate of incorporation and by-laws of the Company are in full force and effect.",
"The Company is not in violation of any provision of its certificate of incorporation or by-laws. 4.3 Corporate Power and Authority. The Company has the requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company, the performance by it of its obligations hereunder, and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate and stockholder actions on the part of the Company.",
"This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors' rights generally and subject to general principles of equity. 4.4 Capitalization. (a) The authorized capital stock of the Company consists of 50,000,000 shares of Company Common Stock, par value $0.0001 per share and 5,000,000 blank check preferred stock, par value $0.0001 per share. There shall be 21,951,182 shares of Company Common Stock outstanding immediately prior to Closing, of which all shares are being cancelled concurrently with the Closing. No shares of preferred stock are outstanding.",
"No shares of Company Common Stock are held as treasury shares, and no shares of Company preferred stock are held as treasury shares. (b) All of the issued and outstanding shares of Company Common Stock are validly issued, fully paid and nonassessable and free of preemptive rights and were issued in compliance with all applicable Laws concerning the issuance of securities. There are not any shares of capital stock of the Company issued or outstanding or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of its capital stock or securities, except those listed on Schedule 4.4(b), all of which shall either be exchanged for Parent Units or will be terminated at the Effective Time. There are not any notes, bonds, debentures or other indebtedness of the Company having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters upon which the Company’s stockholders may vote. There are no outstanding contractual obligations, commitments, understandings or arrangements of the Company to repurchase, redeem or otherwise acquire or make any payment in respect of or measured or determined based on the value or market price of any shares of capital stock of the Company, and there are no irrevocable proxies with respect to shares of capital stock of the Company. There are no agreements or arrangements pursuant to which the Company is or could be required to register shares of Company Common Stock or other securities under the Securities Act.",
"7 4.5 Subsidiaries. The Company does not own, directly or indirectly, any capital stock or other ownership interest in any corporation, partnership, limited liability company, joint venture or other business association or entity, other than all of the shares of common stock of its Subsidiaries. Each outstanding share of capital stock of each subsidiary is duly authorized, is validly issued fully paid, non-accessible and free of preemptive rights and is owned beneficially and of record by the Company free and clear of all security interests, liens, claims, pledges, options, rights or right of first refusal agreements, limitations on the Company’s voting rights, charges or other encumbrances of any nature whatsoever.",
"4.6 No Violation. Except for the filing of the Certificate of Merger, neither the execution and delivery of this Agreement by the Company, the performance by it of its obligations hereunder, nor the consummation by it of the transactions contemplated hereby, will (a) contravene any provision of the certificate of incorporation or bylaws of the Company; (b) violate, be in conflict with, constitute a default under, permit the termination of, cause the acceleration (whether after the giving of notice or the lapse of time or both) of the maturity of, any debt or obligation of the Company or binding on the Surviving Corporation after the Closing, require the consent of any other party to constitute a breach of, create a loss of a benefit under, or result in the creation or imposition of any Lien upon any of the properties or assets of the Company under, any note, bond, license, mortgage, indenture, lease, contract, agreement, instrument or commitment relating to the Company to which it is a party or by which it or any of its assets or properties constituting part of the business of the Company are bound.",
"4.7 Approvals. (a) Except for the filing of the Certificate of Merger, no declaration, filing or registration with, notice to, or Approval of, any Governmental Authority is required to be made, obtained or given by or with respect to the Company or its Subsidiaries in connection with the execution, delivery or performance by the Company or its Subsidiaries of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated hereby. (b) The Company and its Subsidiaries have all Approvals required for its operation and the use and ownership or leasing of its properties and assets that constitute part of the business, as currently operated, used, owned or leased.",
"All of such Approvals are valid, in full force and effect and in good standing, except where the failure to be so would not, individually or in the aggregate, have a Material Adverse Effect on the Condition of the Company. There is no proceeding pending or, to the knowledge of the Company, threatened, that disputes the validity of any such Approval or that is likely to result in the revocation, cancellation or suspension, or any adverse modification of any such Approval. 4.8 Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to the Purchaser, and Purchaser acknowledges the receipt of, true, correct and complete copies of the Company’s audited consolidated balance sheets as of December 31, 2011, and 2012, and the audited consolidated statements of income for the years ended December 31, 2011, and 2012 (the “Annual Financial Statements”), the Interim Financial Statements for the Quarter ending June 30, 2013 (collectively, the “June 30, 2013 Financial Statements”).",
"Should the Closing occur after September 30, 2013, the Company shall deliver to the Purchaser unaudited financial statements for the monthly periods ended July 30, 2013, August 30, 2013, and for the Quarter ending September 30, 2013 and the related statements of cash flows, once such financial statements have been prepared by the Company (the “Alternate Financial Statements”) (the Annual Financial Statements, the June 30, 2013 Financial Statements and the Alternate Financial Statements, collectively referred to as the “Financial Statements”). The Financial Statements are based upon the information contained in the books and records of the Company and fairly present, in all material respects, the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein.",
"The Annual Financial Statements have been prepared in accordance with GAAP, consistently applied throughout the periods indicated. The Interim Financial Statements and the Alternate Financial Statements have been, or will be, prepared in accordance with GAAP applicable to unaudited interim financial statements (and thus may not contain all notes and may not contain prior period comparative data which are required to be prepared in accordance with GAAP) consistent with the Annual Financial Statements and reflect all adjustments necessary to a fair statement of the results for the interim period(s) presented. 8 (b) Except for the indebtedness set forth on Schedule 4.8(b) or as reflected in the Interim Balance Sheet, the Company does not have, and as a result of the transactions contemplated by this Agreement, will not have, any Liabilities (whether absolute, accrued, contingent or otherwise, and whether due or to become due), except for Liabilities (i) incurred in the ordinary course of business consistent with past practice since the date of the Interim Balance Sheet, or (ii) which, individually or in the aggregate, will not have a Material Adverse Effect on the Condition of the Company.",
"(c) The minute books and stock record books of the Company have been maintained in accordance with sound business practices. The minute books of the Company contain accurate and complete records of all meetings held of, and corporate action taken by, the Company’s stockholders, the Board of Directors, and committees of the Board of Directors of the Company. 4.9 Absence of Certain Changes. (a) Since December 31, 2012 and, prior to the date hereof, the Company has conducted its business in the ordinary course, consistent with past practice, and there has not been: (i) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company, other than as shown on the Interim Financial Statements; (ii) any grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of the Company; entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company; increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements; or increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or senior employees of the Company, in each case, other than in the ordinary course of business consistent with past practice.",
"(b) Since December 31, 2012 and prior to the date hereof, the Company has conducted its business in the ordinary course, consistent with past practice, and there has not been: (i) except as set forth on Schedule 4.9(b)(i), any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any repurchase, redemption or other acquisition by the Company of any outstanding shares of their capital stock or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments which obligate the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of its capital stock or securities; (ii) any amendment of any material term of any outstanding security of the Company; 9 (iii) any transaction or commitment made, or any contract, agreement or settlement entered into, by (or judgment, order or decree affecting) the Company relating to its assets or business (including the acquisition or disposition of any material amount of assets) or any relinquishment by the Company of any contract or other right, other than transactions, commitments, contracts, agreements, settlements or relinquishments in the ordinary course of business consistent with past practice and those contemplated by this Agreement; (iv) any change in any method of accounting or accounting practice by the Company, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; or (v) any material Tax election made or changed, any material audit settled or any material amended Tax Returns filed.",
"4.10 Leases of Personal Property; Material Contracts; No Default. (a) Schedule 4.10(a) hereto sets forth a true and complete list of each lease of personal property to which the Company and its Subsidiaries are a party or by which it or its properties or assets are bound which provides for payments in excess of $10,000 per annum and which has a remaining term in excess of one year (collectively, the “Personal Property Leases”). The Company has delivered or made available to the Purchaser a true and complete copy of each of the Personal Property Leases. (b) Schedule 4.10(b) hereto sets forth a true and complete list of all agreements (including, but not limited to any agreements relating to indebtedness or future expenditures) involving amounts greater than $10,000.00 individually or $25,000.00 in the aggregate, to which the Company and its Subsidiaries are a party or by which it or any of its properties or assets are bound (collectively, the “Contracts”).",
"The Company has delivered or made available to the Purchaser a true and complete copy of each of the Contracts or other agreements listed on Schedule 4.10(b) hereto. (c) Except as set forth on Schedule 4.10(c) hereto, the Company and its Subsidiaries have performed in all material respects, or is now performing in all material respects, its obligations under, and is not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor has it received notice of any asserted claim of a material default by the Company under, or a material breach or violation by the Company or its Subsidiaries of, any of the Personal Property Leases or Contracts and, to the knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder. 4.11 Intellectual Property Matters.",
"(a) Schedule 4.11(a) sets forth, for all Intellectual Property owned by the Company, a complete and accurate list, of all U.S. and foreign: (i) patents and patent applications; (ii) registered Trademarks and material unregistered Trademarks; and (iii) copyright registrations, copyright applications and material unregistered copyrights. (b) Schedule 4.11(b) sets forth a complete and accurate list of all agreements granting or obtaining any right to use or practice any rights under any Intellectual Property, or right to compensation from the Company by reason of the use, exploitation, or sale of any Intellectual Property, to which the Company is a party or otherwise bound, as licensee or licensor thereunder, including, without limitation, license agreements, settlement agreements and covenants not to sue (collectively, the “License Agreements”). (c) Except as set forth on Schedule 4.11(c): (i) the Company owns or has the right to use all Intellectual Property, free and clear of all liens or other encumbrances; (ii) any Intellectual Property owned or used by the Company has been duly maintained, is valid and subsisting, in full force and effect and has not been cancelled, expired or abandoned, and, to the knowledge of the Company; (iii) the Company has no knowledge that any of its operations constitute infringement or misappropriation, on any Intellectual Property right of another Person; (iv) the Company has not received notice from any third party regarding any assertion or claim challenging the validity of any Intellectual Property owned or used by the Company and the Company does not have any knowledge of any basis for such a claim; (v) the Company has not licensed or sublicensed its rights in any Intellectual Property; and (vi) the Company has no knowledge that any third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by the Company; 10 4.12 Litigation.",
"Except as set forth on Schedule 4.12, there is no Action pending against or affecting or, to the knowledge of the Company, threatened against or affecting, the Company, its Subsidiaries, or any of its assets, properties or rights before any court or arbitrator or any other Governmental Authority. To the knowledge of the Company, there are no facts that would likely result in any such Action. 4.13 Compliance with Laws. The Company and its Subsidiaries are in compliance in all material respects with all Laws applicable thereto, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement. The Company and its Subsidiaries are not at present charged with or, to the knowledge of the Company, threatened with any charge concerning or under any investigation with respect to, any violation, in any material respect, of any provision of any Law, and the Company and its Subsidiaries are not in violation of or in default under, and to the knowledge of the Company, no event has occurred which, with the lapse of time or the giving of notice or both, would result in the violation of or default under, the terms of any judgment, decree, order, injunction or writ of any court or other Governmental Authority, except where such failure would not have a Material Adverse Effect on the Company's business or operations or the Company's ability to consummate the transactions provided for or contemplated by this Agreement.",
"4.14 Taxes. (a) The Company has duly and timely filed (or there has been filed on its behalf) with the appropriate Governmental Authorities all Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete; and timely paid (or properly accrued on the Company's books), or there has been paid on its behalf all Taxes due from it or claimed to be due from it by any Governmental Authority (whether or not set forth on any Tax Return); (b) The Company has complied in all material respects with all applicable Tax Laws relating to the payment and withholding of Taxes and has, within the time and manner prescribed by law, withheld and paid over to the proper Governmental Authority all amounts required to be withheld and paid over under all applicable Tax Laws; (c) There are no Liens for Taxes upon the assets or properties of the Company except for statutory Liens for current Taxes not yet due; (d) The Company has not requested any extension of time within which to file any Tax Return in respect of any taxable year which has not since been filed, and no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns has been given by or on behalf of the Company; (e) No federal, state, local or foreign audits, review, or other Actions (\"Tax Audits\") exist or have been initiated with regard to any Taxes or Tax Returns of the Company, and the Company has not received any notice of such an Audit; 11 (f) All Tax deficiencies which have been claimed, proposed or asserted against the Company by any taxing authority have been fully paid, and there are no other Audits by any taxing authority in progress relating to the Company or the business of the Company, nor has the Company or to the Company's knowledge, any of its stockholders, directors or officers received any notice from any taxing authority that it intends to conduct such an audit or investigation.",
"No issue has been raised by any taxing authority in any current or prior examination which, by application of the same principles, would reasonably be expected to result in a proposed deficiency for any subsequent period. The Company is not subject to any private letter ruling of the Internal Revenue Service or any comparable ruling of any other taxing authority; (g) No claim has been made by a Taxing authority in a jurisdiction where the Company does not file Tax Returns to the effect that the Company is or may be subject to taxation by that jurisdiction; 4.15 Insurance.",
"Schedule 4.15 hereto sets forth a true and complete list of all insurance policies or binders maintained by or for the benefit of the Company and its directors, officers, employees or agents. The Company has delivered or made available to the Purchaser true and complete copies of such policies and binders. Except as set forth on Schedule 4.15 hereto, (a) all such policies or binders are in full force and effect and no premiums due and payable thereon are delinquent, (b) there are no pending material claims against such insurance policies or binders by the Company as to which the insurers have denied liability, (c) the Company has complied in all material respects with the provisions of such policies and (d) there exist no material claims under such insurance policies or binders that have not been properly and timely submitted by the Company to its insurers. 4.16 Employee Benefit Plans. (a) For purposes of this Agreement, the term \"Company Employee Plans\" shall mean and include: all Company Stock Plans, arrangement or policy applicable to any director, former director, employee or former employee of the Company and each plan, program, policy, agreement or arrangement (written or oral), providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other employee benefits of any kind, whether funded or unfunded, which is maintained, administered or contributed to by the Company and covers any employee or director or former employee or director of the Company, or under which the Company has any Liability contingent or otherwise (including but not limited to each material \"employee benefit plan,\" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), but excluding any such plan that is a \"multiemployer plan,\" as defined in Section 3(37) of ERISA).",
"Neither the Company nor any of its Affiliates contributes to, or is required to contribute to, any \"multiemployer plan\" as defined in Section 3(37) of ERISA. Schedule 4.16(a) sets forth a true, accurate and complete list of all Company Employee Plans. (b) Each Company Employee Plan has been established and maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (including but not limited to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the aggregate, have a Material Adverse Effect on the Company. (c) Except as set forth on Schedule 4.16(c), no director or officer or other employee of the Company will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any Company Employee Plan or other benefit under any compensation plan or arrangement of the Company) solely as a result of the transactions contemplated hereby; and (ii) no payment made or to be made to any current or former employee or director of the Company or any of its Affiliates by reason of the transactions contemplated hereby (whether alone or in connection with any other event, including, but not limited to, a termination of employment) will constitute an \"excess parachute payment\" within the meaning of Section 280G of the Code.",
"12 (d) The Company is in compliance with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and codes respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, and no work stoppage or labor strike against the Company is pending or threatened, nor is the Company or its Subsidiaries involved in or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any employees, in each case except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company.",
"There are no suits, Actions, disputes, claims (other than routine claims for benefits), investigations or audits pending or, to the knowledge of the Company, threatened in connection with any Company Employee Plan, but excluding any of the foregoing which would not have a Material Adverse Effect on the Company. (e) Schedule 4.16(e) sets forth all management, consulting, non-compete and employment agreements of the Company. 4.17 Environmental Matters. No written notice, notification, demand, request for information, citation, summons, complaint or order has been received by, and no investigation, Action, claim, suit, proceeding or review is pending or, to the knowledge of the Company, threatened by any Person against, the Company or its Subsidiaries, and no penalty has been assessed against the Company or its Subsidiaries, in each case, with respect to any matters relating to or arising out of any Environmental Law; the Company is in compliance with all Environmental Laws; and there are no Liabilities of or relating to the Company relating to or arising out of any Environmental Law and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a Liability.",
"4.18 Labor Matters. There is no unfair labor practice charge or complaint against the Company or its Subsidiaries pending before the National Labor Relations Board, any state labor relations board or any court or tribunal and, to the knowledge of the Company, none is or has been threatened; there is no labor strike, dispute, request for representation, organizing activity, slowdown or stoppage actually pending against or affecting the Company or its Subsidiaries and, to the knowledge of the Company, none is or has been threatened.",
"Except as set forth on Schedule 4.18, all Persons treated by the Company as independent contractors for any purpose do satisfy and have satisfied the requirements of Law to be so treated, and the Company has fully and accurately reported the amounts paid by the Company to or on behalf of such Persons on IRS Forms 1099 when required to do so. No individual who has performed services for or on behalf of the Company, and who has been treated by the Company as an independent contractor, is classifiable as a \"leased employee,\" within the meaning of Section 414(n)(2) of the Code, with respect to the Company, or with respect to any customer of the Company.",
"4.19 Personal Property. Schedule 4.19 hereto sets forth a true and complete list of all equipment and fixtures having an acquisition cost of $25,000 or more owned by the Company. 4.20 Real Property. (a) The Company does not own any real property. (b) Set forth on Schedule 4.20(b) hereto is a list of all leases, subleases, licenses and other agreements (collectively, the “Real Property Leases”) under which the Company and/or its Subsidiaries use or occupy or have the right to use or occupy any real property used by the Company and/or its Subsidiaries (the land, buildings and other improvements covered by the Real Property Leases being herein called the \"Leased Real Property\"). 13 (c) The Company and its Subsidiaries have performed in all material respects, or are now performing in all material respects, their obligations under, and are not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor have they received notice of any asserted claim of a material default by the Company under, or a material breach or violation by the Company and / or its Subsidiaries of any of the Real Property Leases and, to the knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder. 4.21 Accounts Receivable.",
"The accounts receivable of the Company (i) arose from bona fide transactions in the ordinary course of business, are payable on ordinary trade terms and are, to the knowledge of the Company, not subject to any valid setoff, counterclaims or defense, and (ii) are legal, valid and binding obligations of the respective debtors. 4.22 Inventory. Schedule 4.22 sets forth the Company’s inventory for August 2013. 4.23 Finders' or Advisors' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Company or the Company’s stockholders who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement. 4.24 Related-Party Transactions.",
"No employee, officer, or director of the Company or member of his or her immediate family is currently indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any of such individuals. No employee, director, or officer of the Company and no member of the immediate family of any employee, officer, or director of the Company is directly or indirectly interested in any material contract with the Company. 4.25 Required Vote. The affirmative vote or consent of the holders of a majority of the outstanding shares of the Company Common Stock with respect to which votes are entitled to be cast in connection with the approval of this Agreement (the “Company Shareholder Approval”), is the only vote or consent of the holders of any class or series of capital stock or other equity interests of the Company necessary to approve this agreement or the Merger.",
"Such vote or consent has been obtained prior to execution of this Agreement. 4.26 Disclosure. Neither this Agreement, nor any of the Exhibits or Schedules hereto nor any list, certificate, schedule or other instrument, document, agreement or writing furnished or to be furnished to, or made with Purchaser pursuant hereto or in connection with the negotiation, execution or performance hereof, contains any untrue statement by the Company of a material fact or omits to state any material fact necessary to make any statement herein or therein not misleading. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PARENT Each of the Parent and Purchaser hereby represent and warrant to the Company as follows: 5.1 Organization and Good Standing. The Purchaser and Parent are corporations duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite power and authority and all governmental licenses, authorizations, consents and approvals required to own, operate and lease its properties and assets and to conduct its business as it is now being owned, operated, leased and conducted. Purchaser and Parent are duly qualified or licensed to do business as a foreign corporation, and are in good standing as a foreign corporation, in every jurisdiction in which the failure to be so qualified or licensed or in good standing would have a Material Adverse Effect on Purchaser or Parent’s business or operations or would adversely affect its ability to consummate the transactions provided for or contemplated by this Agreement. 14 5.2 Corporate Records.",
"Copies of the certificate of incorporation of the Parent and Purchaser, certified by the Secretary of State of the State of Delaware, and of the by-laws of the Parent and Purchaser, certified by the Secretary of such corporation, heretofore delivered to the Company are true and complete copies of such instruments as amended to the date of this Agreement. Such certificates of incorporation and by-laws of the Parent and Purchaser are in full force and effect.",
"The Parent and Purchaser are not in violation of any provision of their respective certificates of incorporation or by-laws. 5.3 Corporate Power and Authority. Each of the Parent and Purchaser has the requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby. The execution and delivery of this Agreement by each of the Parent and Purchaser, the performance by them of their obligations hereunder and the consummation by them of the transactions contemplated hereby have been duly authorized by all necessary corporate actions of the Parent and Purchaser. This Agreement constitutes the legal, valid and binding obligation of each of the Parent and Purchaser, enforceable against them in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors' rights generally and subject to general principles of equity.",
"5.4 Finders' or Advisors' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Parent and/or Purchaser who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement. 5.5 No Violation. Except for the filing of the Certificate of Merger and any filings required pursuant to federal or state securities laws, neither the execution and delivery of this Agreement by the Parent and Purchaser, the performance by Parent and Purchaser of their respective obligations hereunder, nor the consummation by Parent and Purchaser of the transactions contemplated hereby, will (a) contravene any provision of the certificate of incorporation or bylaws of the Parent or Purchaser; (b) violate, be in conflict with, constitute a default under, permit the termination of, cause the acceleration (whether after the giving of notice or the lapse of time or both) of the maturity of, any debt or obligation of the Parent or Purchaser, require the consent of any other party to, constitute a breach of, create a loss of a benefit under, or result in the creation or imposition of any Lien upon any of the properties or assets of the Parent or Purchaser under, any note, bond, license, mortgage, indenture, lease, contract, agreement, instrument or commitment relating to the Parent or Purchaser to which it is a party or by which it or any of its assets or properties constituting part of its businesses is bound.",
"5.6 Approvals. Except for the filing of the Certificate of Merger, and any filings required pursuant to federal or state securities laws, no declaration, filing or registration with, notice to, nor Approval of, any Governmental Authority is required to be made, obtained or given by or with respect to the Parent or Purchaser in connection with the execution, delivery or performance by the Parent or Purchaser of this Agreement, the performance by the Parent and Purchaser of its obligations hereunder or the consummation by them of the transactions contemplated hereby.",
"5.7 Capitalization. As of the date of this Agreement, the Parent is authorized to issue 20,000,000 shares of common stock, of which 3,790,396 shares were issued and outstanding. All issued and outstanding shares of capital stock of the Parent are validly issued, fully paid and nonassessable. 15 ARTICLE VI COVENANTS 6.1 The Company covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Purchaser in writing: (a) Conduct of the Company. From the date of this Agreement until the Closing, the Company shall conduct its business in the ordinary course consistent with past practice and shall use its commercially reasonable best efforts to preserve intact its business organization.",
"Without limiting the generality of the foregoing and, without the prior written consent of the Purchaser, from the date of this Agreement until the Closing: (i) The Company will not adopt or propose any change in its certificate of incorporation or by-laws; (ii) The Company will not adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company; (iii) The Company will not issue or sell any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of the Company; (iv) The Company will not (A) split, combine, subdivide or reclassify its outstanding shares of capital stock, or (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock; (v) The Company will not redeem, purchase or otherwise acquire directly or indirectly any shares of capital stock of the Company; (vi) The Company will not amend the terms (including the terms relating to accelerating the vesting or lapse of repurchase rights or obligations) of any employee or director stock options or other stock based awards; (vii) The Company will not (A) grant any severance or termination pay to (or amend any such existing arrangement with) any director, officer or employee of the Company, (B) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company, (C) increase any benefits payable under any existing severance or termination pay policies or employment agreements, (D) increase (or amend the terms of) any compensation, bonus or other benefits payable to directors, officers or employees of the Company, or (E) permit any director, officer or employee who is not already a party to an agreement or a participant in a plan providing benefits upon or following a \"change in control\" to become a party to any such agreement or a participant in any such plan; (viii) The Company will not acquire any assets or property of any other Person except in the ordinary course of business consistent with past practice; (ix) The Company will not sell, lease, license or otherwise dispose of any assets or property except pursuant to existing contracts or commitments or except in the ordinary course of business consistent with past practice; (x) The Company will not enter into any joint venture, partnership or other similar arrangement; 16 (xi) The Company will not take any action that would make any representation or warranty of the Company hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date; (xii) The Company will not make or change any material Tax election, settle any material audit or file any material amended Tax Returns; (xiii) The Company will not incur any indebtedness, other than ordinary trade payables incurred in the ordinary course (it being understood and agreed that the accrual of interest with respect to indebtedness in existence on the date of this Agreement shall not be deemed to be incurrence of indebtedness); and (xiv) The Company will not agree or commit to do any of the foregoing.",
"6.2 The Parent covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Company in writing: (i) The Parent will not take any action that would make any representation or warranty of the Parent hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date; (ii) The Parent shall promptly seek to obtain Nasdaq Approval, if required, and shall promptly respond to any Nasdaq inquiry or request for information relating to such Nasdaq Approval; and (iii) Not later than twelve months from the Closing Date the Parent shall obtain shareholder approval for the issuance of the warrants included in the Parent Units. 6.3 Consents and Approvals.",
"The Company and its Subsidiaries shall use their best efforts to obtain at the earliest practicable date, and in any event prior to Closing, all Approvals reasonably requested by the Purchaser with respect to the Company and its Subsidiaries’ Contracts or that are necessary to obtain fulfillment of the conditions set forth in Article VII hereof. 6.4 No Solicitation of Transaction. The Company shall not, and shall use its best efforts to cause its Representatives not to, directly or indirectly, take any of the following actions with any Person other than the Purchaser without the prior written consent of the Purchaser: (A) solicit, initiate, facilitate or encourage, or furnish information with respect to the Company, in connection with, any inquiry, proposal or offer with respect to any merger, consolidation or other business combination involving the Company or the acquisition of all or a substantial portion of the assets of, or any securities of, the Company (an “Alternative Transaction”); (B) negotiate, discuss, explore or otherwise communicate or cooperate in any way with any third party with respect to any Alternative Transaction; or (C) enter into any agreement, arrangement or understanding with respect to an Alternative Transaction or requiring the Company to abandon, terminate or refrain from consummating a transaction with the Purchaser. ARTICLE VII CONDITIONS PRECENT TO THE OBLIGATIONS OF THE PURCHASER AND/OR PARENT The obligations of the Purchaser and/or Parent to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions: 7.1 Representations and Warranties True. The representations and warranties contained in Article IV hereof, in the Schedules to this Agreement, and in all certificates delivered by the Company and the Subsidiaries to the Purchaser pursuant hereto or in connection with the transactions contemplated hereby shall be true and accurate as of the date when made and shall be deemed to be made again at and as of the Closing Date and shall then be true and accurate (except for changes contemplated by this Agreement and except for representations and warranties that by their terms speak as of the date of this Agreement or some other date which shall be true and correct only as of such date).",
"17 7.2 Performance of Covenants. The Company and its Subsidiaries shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by them prior to or on the Closing Date. 7.3 No Governmental Proceeding. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits the consummation of the transactions contemplated by this Agreement. 7.4 Certificates. The Company and its Subsidiaries shall have furnished the Purchaser with such certificates to evidence compliance with the conditions set forth in this Article VII as may be reasonably requested by Purchaser. 7.5 Consents. The Company and its Subsidiaries shall have obtained all consents which, the failure to so obtain would have a Material Adverse Effect on the Condition of the Company.",
"7.6 No Material Adverse Effect. There shall have been, between the date of this Agreement and the Closing Date, no Material Adverse Effect on the Company. 7.7 Delivery of Good Standing Certificates and Corporate Resolutions. The Purchaser shall have received certificates of good standing with respect to the Company and its Subsidiaries issued by the jurisdiction of its incorporation. The Purchaser shall have received copies of the resolutions of the Company and its Subsidiaries approving this Agreement, the Merger and the transactions contemplated herein, certified by an appropriate officer. 7.8 Financial Statements. The Company shall have provided the Purchaser with copies of the Annual Financial Statements and the Interim Financial Statements. 7.9 Director and Officer Resignations. Effective as of the Effective Time, each of the Company's directors and officers shall have resigned. 7.10 Due Diligence. The Purchaser shall, in its sole reasonable discretion, have completed and be reasonably satisfied with its business, accounting, and legal due diligence review of the Company. 7.11 Certain Notices.",
"From and after the date of this Agreement until the Effective Time, the Company shall promptly notify the Purchaser of: (a) the occurrence, or non-occurrence of any event that would be likely to cause any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied or (b) the failure of the Company to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would reasonably be expected to result in any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 7.11 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice. 7.12 Public Announcements. The Company agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by any party without the prior written consent of the Parent (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by applicable law or the rules or regulations of any applicable United States securities exchange or regulatory or governmental body to which the relevant party is subject, in which case the party required to make the release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance. The Company agrees that the press release announcing the execution and delivery of this Agreement shall be a joint release of, and shall not be issued prior to the approval of the Parent.",
"18 7.13 Shareholder Approval of Company Shareholders. The approval of this Agreement by the Company’s Shareholders shall have been obtained and the Company shall have provided evidence satisfactory to Purchaser that Company’s shareholders are all “accredited investors” within the meaning of the Securities Act. 7.14 Shareholder Approval of Parent Shareholders. If required, the approval of this Agreement by the Parent’s Shareholders shall have been obtained. ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY The obligations of the Company to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions: 8.1 Representations and Warranties True. The representations and warranties contained in Article V hereof and in all certificates delivered by the Parent and Purchaser to the Company pursuant hereto or in connection with the transactions contemplated hereby shall be true and accurate as of the date when made and shall be deemed to be made again at and as of the Closing Date and shall then be true and accurate (except for changes contemplated by this Agreement and except for representations and warranties that by their terms speak as of the date of this Agreement or such other date which shall be true and accurate only as of such date). 8.2 Performance of Covenants.",
"The Parent and Purchaser shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by Parent and Purchaser prior to or on the Closing Date. 8.3 No Governmental Proceeding. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered into any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits the consummation of the transactions contemplated by this Agreement. 8.4 Certificates. The Parent and Purchaser shall have furnished the Company with such certificates to evidence compliance with the conditions set forth in this Article VIII as may be reasonably requested by the Company.",
"8.5 Consents. Parent and Purchaser shall have obtained all consents which, the failure to so obtain would have a Material Adverse Effect on the Condition of the Parent or Purchaser. 8.6 Delivery of Good Standing Certificates and Corporate Resolutions. The Company shall have received certificates of good standing with respect to the Parent and Purchaser issued by the jurisdiction of its incorporation. The Company shall have received copies of the resolutions of the Parent and Purchaser approving this Agreement, the Merger and the transactions contemplated herein, certified by an appropriate officer.",
"8.7 Certain Notices. From and after the date of this Agreement until the Effective Time, each of the Parent and Purchaser shall promptly notify the Company of: (a) the occurrence, or non-occurrence of any event that would be likely to cause any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied or (b) the failure of the Parent or Purchaser, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would reasonably be expected to result in any condition to the obligations of any party to effect the Merger or any other transaction contemplated by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 8.7 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice. 19 ARTICLE IX TERMINATION, AMENDMENT AND WAIVER 9.1 Termination. This Agreement may be terminated at any time prior to the Closing Date: (a) by mutual consent of the Purchaser and the Company; (b) by either the Purchaser or the Company if there has been a material misrepresentation or material breach on the part of the other party in the representations, warranties or covenants set forth in this Agreement which is not cured within ten Business Days after such other party has been notified in writing of the intent to terminate this Agreement pursuant to this clause (b); (c) by either the Purchaser or the Company, if any permanent injunction or action by any court or other Governmental Authority of competent jurisdiction enjoining, denying Approval of or otherwise prohibiting consummation of any of the transactions contemplated by this Agreement shall become final and nonappealable; 9.2 Effect of Termination.",
"In the event of termination of this Agreement as expressly permitted under Section 9.1 hereof, this Agreement shall forthwith become void (except for this Section 9.2) and there shall be no Action on the part of the Company, the Company’s stockholders, the Purchaser, the Parent or their respective officers, directors or affiliates; provided, that, if such termination shall result from a material misrepresentation by a party or the willful breach by a party of the covenants of such party contained in this Agreement, such party shall be fully liable for any and all Damages sustained or incurred as a result of such breach. 9.3 Amendment. This Agreement may not be amended, except by an instrument in writing signed on behalf of each of the parties hereto.",
"9.4 Extension; Waiver. At any time prior to the Closing, the parties hereto may (i) extend the time for the performance of any of the obligations or other acts of any other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, and (iii) 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 if set forth in writing in an instrument signed by or on behalf of such party. The waiver by any party hereto of a breach of this Agreement shall not operate or be construed as a waiver of any subsequent breach. ARTICLE X INDEMNITY 10.1 Indemnification by the Company.",
"Each of the Company and its Subsidiaries jointly and severally, covenants and agrees to indemnify, defend, protect and hold harmless the Purchaser and its officers, directors, members, managers, employees, stockholders, assigns, successors and Affiliates (individually, a “Buyer Party” and collectively “Buyer Parties”) from, against and in respect of all Damages, Actions, and interest (including interest from the date of such Damages) suffered, sustained, incurred or paid by any Buyer Party, in any Action: between a Buyer Party and the Company or its Subsidiaries; or between a Buyer Party and a third party, in connection with, resulting from or arising out of, directly or indirectly: (i) the inaccuracy of any representation or the breach of any warranty set forth in this Agreement or certificates delivered on the part of the Company or its Subsidiaries in connection with the Closing; (ii) the nonfulfillment of any covenant or agreement on the part of the Company or its Subsidiaries set forth in this Agreement or in any agreement or certificate executed and delivered by the Company or its Subsidiaries pursuant to this Agreement or in the transactions contemplated hereby; (iii) claims (whether based on contract, tort, fiduciary or any other theory) of any actual or purported, beneficial or record, current or past, holder of the Company's or its subsidiaries’ debt or equity securities (or any interest or right therein) in connection with, resulting from or arising out of, directly or indirectly, such debt or equity securities (or any interest or right therein) that is based on any action taken at or prior to the Effective Time.",
"20 10.2 Indemnification by the Parent and Purchaser. Each of the Parent and Purchaser jointly and severally, covenants and agrees to indemnify, defend, protect and hold harmless the Company and its officers, directors, members, managers, employees, stockholders, assigns, successors and Affiliates (individually, a “Seller Party” and collectively “Seller Parties”) from, against and in respect of all Damages, Actions, and interest (including interest from the date of such Damages) suffered, sustained, incurred or paid by any Seller Party, in any Action: between a Seller Party and the Parent and/or Purchaser; or between a Seller Party and a third party, in connection with, resulting from or arising out of, directly or indirectly: (i) the inaccuracy of any representation or the breach of any warranty set forth in this Agreement or certificates delivered on the part of the Parent or Purchaser in connection with the Closing; or (ii) the nonfulfillment of any covenant or agreement on the part of the Parent or Purchaser set forth in this Agreement or in any agreement or certificate executed and delivered by the Parent or Purchaser pursuant to this Agreement or in the transactions contemplated hereby. 10.3 Notice of Claims.",
"An Indemnified Party shall notify the Indemnifying Party within a reasonable period of time after becoming aware of any Damages which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 10.1 hereof. Such notice shall include an estimate of the Damages that the Indemnified Party has determined may be incurred. As soon as practicable after the date of such notice, the Indemnified Party shall provide to the Indemnifying Party all information and documentation necessary to support and verify the Damages so claimed and the Indemnifying Party and its agents shall be given access to all books and records in the possession or control of the Indemnified Party which the Indemnifying Party reasonably determines to be related to such claim.",
"If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such notice, or fails to notify the Indemnified Party within 30 days after delivery of such notice by the Indemnified Party whether the Indemnifying Party disputes the claim or the estimated amount of Damages described in such notice, the estimated Damages in the amount specified in the Indemnified Party's notice will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party. 10.4 Matters Involving Third Parties. (a) If any third party shall commence an Action against any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification under Section 10.1, the Indemnified Party shall notify the Indemnifying Party in writing as soon as practicable.",
"(b) The Indemnifying Party shall have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 12.5, of the Third Party Claim as provided in Section 10.4 or, if the Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 10.1) that the Indemnified Party will be entitled to indemnification under Section 10.1 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party thereby unless said Indemnifying Party is prejudiced by such failure to give notice. 21 (c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 10.4(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, (iii) the Indemnified Party shall cooperate within reason with the Indemnifying Party's defense of such Third Party Claim and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.",
"ARTICLE XI OTHER AGREEMENTS The parties hereto agree that: 11.1 Best Efforts. The Parent, the Purchaser and the Company, shall each cooperate with the others and use (and shall cause their respective Subsidiaries to use) their respective commercially reasonable best efforts to promptly (i) take or cause to be taken all necessary actions, and do or cause to be done all things, necessary, proper or advisable under this Agreement and applicable laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including, without limitation, preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtain all Approvals required to be obtained from any third party necessary, proper or advisable to consummate the Merger and other transactions contemplated by this Agreement. 11.2 Public Announcements.",
"At the proper time, as determined by the parties hereto in good faith consultation with each other, the Surviving Corporation shall issue a press release or make a public statement concerning this Agreement and the related transactions containing disclosure which is mutually agreeable to the parties; provided, that prior to the issuance of a press release, none of the parties hereto shall make any announcement of such transaction or disclose the existence of and/or particulars of any negotiations related thereto, including, but not limited to, the terms, conditions, consideration to be paid or other facts related to this Agreement and the related transactions.",
"11.3 Expenses. The Parent shall pay, on behalf of the Company, $100,000 in Company expenses (including those of counsel, accountants and other approved amounts to be determined by the Company), which shall be payable upon the Closing. ARTICLE XII MISCELLANEOUS 12.1 Entire Agreement. This Agreement (including the documents and instruments referred to herein) embody the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersede all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. There are no agreements, covenants, representations or warranties with respect to the transactions contemplated hereby other than those expressly set forth herein.",
"22 12.2 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware. 12.3 Headings and Exhibits. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Schedules and documents referred to in this Agreement are an integral part of this Agreement. 12.4 Survival of Representations, Warranties and Covenants. All representations and warranties made by any party in or pursuant to this Agreement or in any document delivered pursuant hereto shall survive for two years after the Closing; provided, however, that in the event of fraud by any party, the representations and warranties of the party shall survive the Closing for an indefinite period of time. Notwithstanding the foregoing, if a claim notice is sent pursuant to Section 10.2, the representation or warranty with respect to which such claim notice is sent, and the related indemnification obligations set forth in Article X with respect to the claim notice, shall survive until the resolution of the claim for Damages to which such claim notice relates, or such longer period as provided in the preceding sentence.",
"All covenants made by any party pursuant to this Agreement shall survive the Closing pursuant to their terms. 12.5 Notices. Any notices or other communications required or permitted hereunder shall be in writing and personally delivered at the addresses designated below, by facsimile transmission to the respective facsimile numbers designated below (with electronic confirmation of delivery), or mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows, or to such other address or addresses as may hereafter be furnished by one party to the other party in compliance with the terms hereof: If to the Parent, Purchaser, or Surviving Corporation: CHANTICLEER HOLDINGS, INC. Attention: Michael Pruitt 11220 Elm Lane, Suite 203 Charlotte, NC 28277 Facsimile No. : 704.366.2463 If to the Company (pre-Closing): AMERICAN ROADSIDE BURGERS Attention: Rich LaVecchia 5821 Fairview Road, Suite 104 Charlotte, NC 28209 With a copy to (which shall not constitute notice): Ruskin Moscou Faltischek, P.C. East Tower 15th Floor 1425 RXR Plaza Uniondale, NY 11556-1425 Attn: Seth Rubin, Esq. or to such other address as the Person to whom notice is to be given may have specified in a notice duly given to the sender as provided herein. Such notice, request, claim, demand, waiver, consent, approval, or other communication shall be deemed to have been given as of the date personally delivered or telefaxed, five Business Days after deposit with the U.S. Postal Service if mailed, or one Business Day if delivered by overnight mail, and, if given by any other means, shall be deemed given only when actually received by the addressees.",
"23 12.6 Counterparts. This Agreement may be executed in any number of counterparts (which may be by facsimile or other electronic means) each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 12.7 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.",
"[Signatures follow on Next Page] 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. PARENT: CHANTICLEER HOLDINGS, INC. By: Print Name: Title: PURCHASER: Chanticleer Roadside Burgers International, LLC By: Print Name: Title: COMPANY AMERICAN ROADSIDE BURGERS, INC. By: Print Name: 25"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Citation Nr: 0106501
Decision Date: 01/24/01 Archive Date: 03/12/01
BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
DOCKET NO. 99-16 162 ) DATE JAN 24, 2001
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to an effective date prior to July 1, 1997 for a 40 percent evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth.
2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. N. Booher, Associate Counsel
INTRODUCTION
The veteran had active service from July 1943 to December 1945. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO), which denied the benefits sought on appeal.
FINDINGS OF FACT
1. In March 1998, the veteran filed a claim seeking a compensable disability evaluation for service-connected residuals for a fracture of the right malar bone with sensory disturbance with loss of all teeth.
2. The veteran underwent excision of torus mandibularis, bilateral, excision of exostosis of posterior maxilla, bilateral and placement of a palatal stent with palatal screw and tissue conditioner in the stent in April 1997. In August 1998, the veteran was shown to have loss of all teeth due to maxillary fracture and it was indicated that he did not have the ability to utilize prosthetic replacements.
5. In September 1998, the RO assigned a 40 percent disability evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance, effective July 1, 1997.
6. In a February 1990 rating decision, the RO denied the veterans claim of entitlement to service connection for a nervous disorder.
7. The evidence associated with the claims file subsequent to the ROs February 1990 rating decision is not so significant that it must be considered to decide fairly the merits of the veterans claim.
CONCLUSIONS OF LAW
1. The evidence does not satisfy criteria for an effective date prior to July 1, 1997 for a 40 percent disability evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth. 38 U.S.C.A. § 5110(a) (West 1991 & Supp. 2000); 38 C.F.R. § 3.400 (2000).
2. The ROs February 1990 decision denying entitlement to service connection for a nervous disorder is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2000); 38 C.F.R. §§ 20.302, 20.1103 (2000).
3. The evidence received subsequent to the ROs February 1990 denial is not new and material, and the requirements to reopen the claim of entitlement to service connection for a nervous disorder have not been met. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2000); 38 C.F.R. § 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran claims entitlement to an effective date for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth prior to July 1, 1997. He also requests the Board to reopen a claim of entitlement to service connection for a nervous disorder.
Entitlement to an effective date for a 40 percent evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth, prior to July 1, 1997.
The veteran claims entitlement to an effective date for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth, prior to July 1, 1997. The statutory and regulatory provisions specify that unless otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimants application. 38 U.S.C.A. § 5110(a) (West 1991 & Supp. 2000); 38 C.F.R. § 3.400 (2000).
Section 5110(b)(2) of title 38 of the United States Code specifically provides otherwise by indicating that, in cases involving a claim for an increased evaluation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. See also 38 C.F.R. § 3.400(o)(2) (which provides that, if the claim is not received within 1 year from such date, the effective date is the date of receipt claim); Harper v. Brown, 10 Vet. App. 125, 126-127 (1997) (holding that 38 C.F.R. § 3.400(o)(2) is applicable only where the increase in disability precedes the filing of the claim and the claim is received within one year of the increase).
In a September 1998 rating decision, the RO granted a temporary 100 percent total evaluation for a period of convalescence due to the veterans service-connected residuals of a fracture of the right malar bone with sensory disturbance with loss of all teeth, effective from April 23, 1997 to July 1, 1997 and a 40 percent disability evaluation effective from July 1, 1997. The veteran claims that the effective date of the assignment of the 40 percent evaluation should go back to service, as he asserts that he has had sensory disturbance and loss of all teeth since his period of service. However, the evidence in this case does not support the grant of an effective date prior to July 1, 1997.
In a March 1998 VA Form 21-4138 (Statement In Support of Claim), the veteran requested an increased disability evaluation for service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth, for which the RO had previously assigned a noncompensable disability evaluation. The veteran also requested the RO to obtain VA outpatient treatment records from the VA Medical Center (VAMC) in Murfreesboro, Tennessee. These treatment records were obtained and associated with the claims file. These records showed that in April 1997, the veteran was notified that he needed to undergo a maxillary alveoloplasty before his new dentures could be made. The veteran was hospitalized and underwent surgery for excision of torus mandibularis, bilateral, excision of exostosis of posterior maxillar bilateral, placement of a palatal stent with palatal screw and tissue conditioner in the stent. The veteran was seen in June 1997 for follow up care and it was indicated that the veteran had healed ulcers on bilateral palate with no erythema, swelling or pain. Accordingly, the RO assigned a temporary total disability evaluation from April 23, 1997 through the end of June 1997 for a period of convalescence following the veterans April 1997 surgery pursuant to 38 C.F.R. § 4.30 (2000).
It is clear that the RO correctly characterized the veterans April 1998 statement as a request for a compensable disability evaluation for service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth. The question before the Board is whether entitlement to a compensable disability evaluation for the veterans service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth was ascertainable prior to the date the RO received the veterans April 1998 claim, and if so, whether the veterans April 1998 claim was received within a year of the ascertainable increase. If the evidence does not satisfy these requirements, there is no other provision upon which the Board may award the veteran an earlier effective date for his compensable disability evaluation.
In its September 1998 decision, the RO based it decision to assign a compensable, 40 percent disability evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth primarily based on VA outpatient treatment records dated April 1997 to April 1998 and on an August 1998 VA dental examination report. Although the RO also considered service medical records dated July 1943 to December 1945 and a May 1998 VA examination report, it placed greater weight on the August 1998 VA examination report.
After reviewing the record, the Board concludes that the August 1998 VA dental examination report is the most telling with regard to the severity of the veterans service-connected residuals. The August 1998 VA examination report reflects that all of the veterans maxillary teeth had been removed as a result of in-service trauma and after inter jaw fixation for a period of more than 6 weeks. The examiner gave the veteran the following diagnoses and made the following findings: (1) Loss of all teeth due to the event of maxillary fracture in combat/combat training situation; records indicate that this was the case and that interjaw fixation lasted up to 6 weeks; (2) The veteran does not have the ability to utilize prosthetic replacements, and is therefore severely handicapped to chew and enunciate words adequately and (3) mild right temporomandibular joint pain dysfunction syndrome most likely due to overclosure of the jaws.
The record reveals that prior to August 1998, the veteran was not shown to have difficulty with the maxilla or mandible (VA examination March 1964) and it was indicated that he would be able to benefit from prosthetic replacements. In November 1988, the veteran was fitted for full upper and partial lower dentures. In April 1997 the veteran was advised that he would need surgery prior to the construction of new dentures. The veteran underwent surgery and he was seen for follow-up from May to June 1997. During this time, he was noted to have tenderness to palpation of the anterior maxillary vestibule and ulcerations in his mouth. Then, in August 1998 it was indicated that the veteran would not be able to utilize prosthetic replacements. In light of these facts, the Board believes that an increase in the veterans service-connected residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth was not ascertainable until 1998, when the RO received the veterans surgical records and the August 1998 VA dental examination report. Based on this finding, the provisions of 38 C.F.R. § 3.400(o)(2) are inapplicable and an effective date prior to July 1, 1997 may not be assigned. The veterans claim for an earlier effective date must therefore be denied.
Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous disorder.
The veteran also requests the Board to reopen his claim of entitlement to service connection for a nervous disorder on the basis that he has submitted new and material evidence not only sufficient to reopen his claim, but also sufficient to grant service connection. The Board observes that the veterans claim of entitlement to service connection for a nervous disorder was last considered and denied by the RO in a February 1990 rating decision. Historically, the veterans claim for service connection for a nervous disorder has been denied by numerous RO decisions dating from June 1960 to January 1990 and by the Board in a February 1961 decision. The veterans claim was denied because there was no evidence of record linking, or suggesting a link between his nervous disorder/chronic brain syndrome diagnosed after his discharge from service and his period of service. The evidence showed that during service, the veteran was struck in the face and head by a falling ramp. While the veteran underwent extensive treatment, he was not shown to have cranial pressure and there was no evidence of brain damage. The evidence showed that following the injury, the veteran experienced recurrent symptoms such as confusion, insomnia, forgetfulness and clumsiness in handling familiar articles, with continuity of symptoms and progression in severity. Thereafter, the veteran underwent a satisfactory post-service adjustment for a period of approximately five years until he experienced a period of following marital discord. The veteran was not diagnosed with chronic brain syndrome until approximately 1959, more than 13 years following his discharge from service. As such, the RO concluded that service connection was not warranted.
The law provides that a notice of disagreement (NOD) must be filed within one year from the date of mailing of notice of the result of an ROs decision in order to initiate an appeal of the determination. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991 & Supp. 2000). If an NOD is not filed within the prescribed period, the decision becomes final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 2000). In this case, the veteran did not file an NOD after the ROs February 1990 rating decision. Therefore, the February 1990 RO decision is final and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 5108; C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2000). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.102, 3.156, 20.1105 (2000).
Until recently, the method of reviewing a final decision based on new and material evidence was potentially a three-step process. See Elkins v. West, 12 Vet. App. 209, 214-9 (1999). First, the Board had to determine whether the evidence submitted since the prior decision was new and material, which will be discussed below. If the Board finds that no such evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Second, if new and material evidence had been presented, the claim was reopened and must be considered based upon all the evidence of record, to determine whether it was well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim was well grounded, the VA must comply with the duty to assist in the development of the claim under 38 U.S.C. § 5107(a), and then readjudicate the claim on the merits on the basis of all evidence of record. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the three-step analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second and third steps became applicable only when each preceding step was satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).
Recent legislation has significantly impacted the new and material analysis, as well as claims for service connection in general, in that a well-grounded claim is no longer required. The Board notes that on November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7, 5126) (the Act), which removed the requirement that a veteran submit a well-grounded claim. The new law affects claims pending on or filed after the date of enactment (as well as certain claims which were finally denied during the period from July 14, 1999, to November 9, 2000).
Nonetheless, the question of whether evidence is new and material is still analyzed under 38 C.F.R. § 3.156(a) (2000), and requires a three-step analysis. The first step requires determining whether the newly presented evidence bears directly and substantially upon the specific matter under consideration, i.e., whether it is probative of the issue at hand. Cox v. Brown, 5 Vet. App. 95, 98 (1993). Evidence is probative when it tend[s] to prove, or actually prov[es] an issue. Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing Blacks Law Dictionary 1203 (6th ed. 1990). Second, the evidence must be shown to be actually new, that is, not of record when the last final decision denying the claim was made. See Struck v. Brown, 9 Vet. App. 145, 151 (1996). The third and final question is whether the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir., 1998), citing 38 C.F.R. § 3.156(a). This need not mean that the evidence warrants a revision of the prior determination, but is intended to ensure the Board has all potentially relevant evidence before it. See Hodge, 155 F.3d at 1363, citing Adjudication; Pensions, Compensation, Dependency: New and Material Evidence; Standard Definition, 55 Fed. Reg. 19088, 19089 (1990). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened.
In the case at hand, pertinent evidence associated with the claims file since the ROs February 1990 denial includes (1) service medical records dated December 1945; (2) VA outpatient treatment records dated May 1990 to March 1991; (3) a VA hospitalization record dated in March 1991; (4) a VA Form 21-2680 (Examination For Housebound Status Or Permanent Need For Regular Aid And Attendance) dated in March 1991; (5) VA outpatient treatment records dated September 1995 to February 1998; (6) a VA examination report dated in May 1998, and (7) a VA examination report dated in August 1998.
Collectively this evidence shows that the veteran was not noted to have a nervous disorder upon his discharge from service in 1945. From May 1990 to February 1998 the veteran received treatment for multiple disorders and was diagnosed variously with anxiety, bipolar schizophrenic depressive anxiety disorder, and depression disorder.
The Board finds that with the exception of service medical records dated in 1945, the evidence submitted since the ROs February 1990 denial is neither cumulative nor redundant of evidence previously submitted to agency decisionmakers. As such, the Board concludes that the evidence is new. However, the Board also finds that most of the newly considered evidence is not material as that term is defined. Most of this evidence does not bear directly and substantially upon the specific matter under consideration, in that it does not address the etiology of the veterans nervous disorder and there is no medical opinion relating the veterans current nervous disorder to his period of service or to any incident in service. Thus, there is no evidence beyond the veterans contentions suggesting a link between his current nervous disorder and his period of service. As the veteran is a layperson with no medical training or expertise, his contentions, alone, do not constitute competent medical evidence to warrant reopening his claim. See Brewer v. West, 11 Vet. App. 228 (1998); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (holding that laypersons are not competent to offer medical opinions). Thus, the Board does not find the evidence to be so significant that it must be considered to decide fairly the merits of the claim and the veterans claim must be denied.
ORDER
Entitlement to an effective date for a 40 percent evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance with loss of all teeth prior to July 1, 1997 is denied.
New and material evidence not having been submitted, the veterans claim of entitlement to service connection for a nervous disorder is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals | 01-24-2001 | [
"Citation Nr: 0106501 Decision Date: 01/24/01 Archive Date: 03/12/01 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 99-16 162 ) DATE JAN 24, 2001 ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an effective date prior to July 1, 1997 for a 40 percent evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from July 1943 to December 1945. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO), which denied the benefits sought on appeal.",
"FINDINGS OF FACT 1. In March 1998, the veteran filed a claim seeking a compensable disability evaluation for service-connected residuals for a fracture of the right malar bone with sensory disturbance with loss of all teeth. 2. The veteran underwent excision of torus mandibularis, bilateral, excision of exostosis of posterior maxilla, bilateral and placement of a palatal stent with palatal screw and tissue conditioner in the stent in April 1997.",
"In August 1998, the veteran was shown to have loss of all teeth due to maxillary fracture and it was indicated that he did not have the ability to utilize prosthetic replacements. 5. In September 1998, the RO assigned a 40 percent disability evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance, effective July 1, 1997. 6. In a February 1990 rating decision, the RO denied the veterans claim of entitlement to service connection for a nervous disorder. 7. The evidence associated with the claims file subsequent to the ROs February 1990 rating decision is not so significant that it must be considered to decide fairly the merits of the veterans claim. CONCLUSIONS OF LAW 1.",
"The evidence does not satisfy criteria for an effective date prior to July 1, 1997 for a 40 percent disability evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth. 38 U.S.C.A. § 5110(a) (West 1991 & Supp. 2000); 38 C.F.R. § 3.400 (2000). 2. The ROs February 1990 decision denying entitlement to service connection for a nervous disorder is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2000); 38 C.F.R. §§ 20.302, 20.1103 (2000). 3. The evidence received subsequent to the ROs February 1990 denial is not new and material, and the requirements to reopen the claim of entitlement to service connection for a nervous disorder have not been met. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2000); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims entitlement to an effective date for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth prior to July 1, 1997.",
"He also requests the Board to reopen a claim of entitlement to service connection for a nervous disorder. Entitlement to an effective date for a 40 percent evaluation for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth, prior to July 1, 1997. The veteran claims entitlement to an effective date for residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth, prior to July 1, 1997. The statutory and regulatory provisions specify that unless otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimants application.",
"38 U.S.C.A. § 5110(a) (West 1991 & Supp. 2000); 38 C.F.R. § 3.400 (2000). Section 5110(b)(2) of title 38 of the United States Code specifically provides otherwise by indicating that, in cases involving a claim for an increased evaluation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. See also 38 C.F.R. § 3.400(o)(2) (which provides that, if the claim is not received within 1 year from such date, the effective date is the date of receipt claim); Harper v. Brown, 10 Vet. App. 125, 126-127 (1997) (holding that 38 C.F.R. § 3.400(o)(2) is applicable only where the increase in disability precedes the filing of the claim and the claim is received within one year of the increase). In a September 1998 rating decision, the RO granted a temporary 100 percent total evaluation for a period of convalescence due to the veterans service-connected residuals of a fracture of the right malar bone with sensory disturbance with loss of all teeth, effective from April 23, 1997 to July 1, 1997 and a 40 percent disability evaluation effective from July 1, 1997.",
"The veteran claims that the effective date of the assignment of the 40 percent evaluation should go back to service, as he asserts that he has had sensory disturbance and loss of all teeth since his period of service. However, the evidence in this case does not support the grant of an effective date prior to July 1, 1997. In a March 1998 VA Form 21-4138 (Statement In Support of Claim), the veteran requested an increased disability evaluation for service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth, for which the RO had previously assigned a noncompensable disability evaluation. The veteran also requested the RO to obtain VA outpatient treatment records from the VA Medical Center (VAMC) in Murfreesboro, Tennessee. These treatment records were obtained and associated with the claims file. These records showed that in April 1997, the veteran was notified that he needed to undergo a maxillary alveoloplasty before his new dentures could be made.",
"The veteran was hospitalized and underwent surgery for excision of torus mandibularis, bilateral, excision of exostosis of posterior maxillar bilateral, placement of a palatal stent with palatal screw and tissue conditioner in the stent. The veteran was seen in June 1997 for follow up care and it was indicated that the veteran had healed ulcers on bilateral palate with no erythema, swelling or pain. Accordingly, the RO assigned a temporary total disability evaluation from April 23, 1997 through the end of June 1997 for a period of convalescence following the veterans April 1997 surgery pursuant to 38 C.F.R. § 4.30 (2000). It is clear that the RO correctly characterized the veterans April 1998 statement as a request for a compensable disability evaluation for service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth. The question before the Board is whether entitlement to a compensable disability evaluation for the veterans service-connected residuals of a fracture of the right malar bone, with sensory disturbance and loss of all teeth was ascertainable prior to the date the RO received the veterans April 1998 claim, and if so, whether the veterans April 1998 claim was received within a year of the ascertainable increase.",
"If the evidence does not satisfy these requirements, there is no other provision upon which the Board may award the veteran an earlier effective date for his compensable disability evaluation. In its September 1998 decision, the RO based it decision to assign a compensable, 40 percent disability evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth primarily based on VA outpatient treatment records dated April 1997 to April 1998 and on an August 1998 VA dental examination report. Although the RO also considered service medical records dated July 1943 to December 1945 and a May 1998 VA examination report, it placed greater weight on the August 1998 VA examination report. After reviewing the record, the Board concludes that the August 1998 VA dental examination report is the most telling with regard to the severity of the veterans service-connected residuals. The August 1998 VA examination report reflects that all of the veterans maxillary teeth had been removed as a result of in-service trauma and after inter jaw fixation for a period of more than 6 weeks. The examiner gave the veteran the following diagnoses and made the following findings: (1) Loss of all teeth due to the event of maxillary fracture in combat/combat training situation; records indicate that this was the case and that interjaw fixation lasted up to 6 weeks; (2) The veteran does not have the ability to utilize prosthetic replacements, and is therefore severely handicapped to chew and enunciate words adequately and (3) mild right temporomandibular joint pain dysfunction syndrome most likely due to overclosure of the jaws.",
"The record reveals that prior to August 1998, the veteran was not shown to have difficulty with the maxilla or mandible (VA examination March 1964) and it was indicated that he would be able to benefit from prosthetic replacements. In November 1988, the veteran was fitted for full upper and partial lower dentures. In April 1997 the veteran was advised that he would need surgery prior to the construction of new dentures. The veteran underwent surgery and he was seen for follow-up from May to June 1997. During this time, he was noted to have tenderness to palpation of the anterior maxillary vestibule and ulcerations in his mouth. Then, in August 1998 it was indicated that the veteran would not be able to utilize prosthetic replacements. In light of these facts, the Board believes that an increase in the veterans service-connected residuals of a fracture of the right malar bone with sensory disturbance and loss of all teeth was not ascertainable until 1998, when the RO received the veterans surgical records and the August 1998 VA dental examination report. Based on this finding, the provisions of 38 C.F.R.",
"§ 3.400(o)(2) are inapplicable and an effective date prior to July 1, 1997 may not be assigned. The veterans claim for an earlier effective date must therefore be denied. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous disorder. The veteran also requests the Board to reopen his claim of entitlement to service connection for a nervous disorder on the basis that he has submitted new and material evidence not only sufficient to reopen his claim, but also sufficient to grant service connection. The Board observes that the veterans claim of entitlement to service connection for a nervous disorder was last considered and denied by the RO in a February 1990 rating decision.",
"Historically, the veterans claim for service connection for a nervous disorder has been denied by numerous RO decisions dating from June 1960 to January 1990 and by the Board in a February 1961 decision. The veterans claim was denied because there was no evidence of record linking, or suggesting a link between his nervous disorder/chronic brain syndrome diagnosed after his discharge from service and his period of service. The evidence showed that during service, the veteran was struck in the face and head by a falling ramp. While the veteran underwent extensive treatment, he was not shown to have cranial pressure and there was no evidence of brain damage. The evidence showed that following the injury, the veteran experienced recurrent symptoms such as confusion, insomnia, forgetfulness and clumsiness in handling familiar articles, with continuity of symptoms and progression in severity.",
"Thereafter, the veteran underwent a satisfactory post-service adjustment for a period of approximately five years until he experienced a period of following marital discord. The veteran was not diagnosed with chronic brain syndrome until approximately 1959, more than 13 years following his discharge from service. As such, the RO concluded that service connection was not warranted. The law provides that a notice of disagreement (NOD) must be filed within one year from the date of mailing of notice of the result of an ROs decision in order to initiate an appeal of the determination. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991 & Supp. 2000). If an NOD is not filed within the prescribed period, the decision becomes final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 2000).",
"In this case, the veteran did not file an NOD after the ROs February 1990 rating decision. Therefore, the February 1990 RO decision is final and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 5108; C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2000). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2000); 38 C.F.R.",
"§§ 3.102, 3.156, 20.1105 (2000). Until recently, the method of reviewing a final decision based on new and material evidence was potentially a three-step process. See Elkins v. West, 12 Vet. App. 209, 214-9 (1999). First, the Board had to determine whether the evidence submitted since the prior decision was new and material, which will be discussed below. If the Board finds that no such evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App.",
"167, 171 (1996). Second, if new and material evidence had been presented, the claim was reopened and must be considered based upon all the evidence of record, to determine whether it was well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim was well grounded, the VA must comply with the duty to assist in the development of the claim under 38 U.S.C.",
"§ 5107(a), and then readjudicate the claim on the merits on the basis of all evidence of record. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the three-step analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second and third steps became applicable only when each preceding step was satisfied. See Vargas-Gonzalez v. West, 12 Vet. App.",
"321, 325 (1999). Recent legislation has significantly impacted the new and material analysis, as well as claims for service connection in general, in that a well-grounded claim is no longer required. The Board notes that on November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7, 5126) (the Act), which removed the requirement that a veteran submit a well-grounded claim.",
"The new law affects claims pending on or filed after the date of enactment (as well as certain claims which were finally denied during the period from July 14, 1999, to November 9, 2000). Nonetheless, the question of whether evidence is new and material is still analyzed under 38 C.F.R. § 3.156(a) (2000), and requires a three-step analysis. The first step requires determining whether the newly presented evidence bears directly and substantially upon the specific matter under consideration, i.e., whether it is probative of the issue at hand. Cox v. Brown, 5 Vet. App. 95, 98 (1993). Evidence is probative when it tend[s] to prove, or actually prov[es] an issue. Routen v. Brown, 10 Vet.",
"App. 183, 186 (1997), citing Blacks Law Dictionary 1203 (6th ed. 1990). Second, the evidence must be shown to be actually new, that is, not of record when the last final decision denying the claim was made. See Struck v. Brown, 9 Vet. App. 145, 151 (1996). The third and final question is whether the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356, 1359 (Fed.",
"Cir., 1998), citing 38 C.F.R. § 3.156(a). This need not mean that the evidence warrants a revision of the prior determination, but is intended to ensure the Board has all potentially relevant evidence before it. See Hodge, 155 F.3d at 1363, citing Adjudication; Pensions, Compensation, Dependency: New and Material Evidence; Standard Definition, 55 Fed. Reg. 19088, 19089 (1990). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet.",
"App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. In the case at hand, pertinent evidence associated with the claims file since the ROs February 1990 denial includes (1) service medical records dated December 1945; (2) VA outpatient treatment records dated May 1990 to March 1991; (3) a VA hospitalization record dated in March 1991; (4) a VA Form 21-2680 (Examination For Housebound Status Or Permanent Need For Regular Aid And Attendance) dated in March 1991; (5) VA outpatient treatment records dated September 1995 to February 1998; (6) a VA examination report dated in May 1998, and (7) a VA examination report dated in August 1998. Collectively this evidence shows that the veteran was not noted to have a nervous disorder upon his discharge from service in 1945.",
"From May 1990 to February 1998 the veteran received treatment for multiple disorders and was diagnosed variously with anxiety, bipolar schizophrenic depressive anxiety disorder, and depression disorder. The Board finds that with the exception of service medical records dated in 1945, the evidence submitted since the ROs February 1990 denial is neither cumulative nor redundant of evidence previously submitted to agency decisionmakers. As such, the Board concludes that the evidence is new. However, the Board also finds that most of the newly considered evidence is not material as that term is defined. Most of this evidence does not bear directly and substantially upon the specific matter under consideration, in that it does not address the etiology of the veterans nervous disorder and there is no medical opinion relating the veterans current nervous disorder to his period of service or to any incident in service.",
"Thus, there is no evidence beyond the veterans contentions suggesting a link between his current nervous disorder and his period of service. As the veteran is a layperson with no medical training or expertise, his contentions, alone, do not constitute competent medical evidence to warrant reopening his claim. See Brewer v. West, 11 Vet. App. 228 (1998); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (holding that laypersons are not competent to offer medical opinions). Thus, the Board does not find the evidence to be so significant that it must be considered to decide fairly the merits of the claim and the veterans claim must be denied. ORDER Entitlement to an effective date for a 40 percent evaluation for service-connected residuals of a fracture of the right malar bone with sensory disturbance with loss of all teeth prior to July 1, 1997 is denied. New and material evidence not having been submitted, the veterans claim of entitlement to service connection for a nervous disorder is denied.",
"WARREN W. RICE, JR. Member, Board of Veterans' Appeals"
]
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1413
Filed: 1 September 2015
New Hanover County, No. 08 CVS 883
JULIE LANCASTER and BRANNON LANCASTER, Plaintiffs,
v.
HAROLD K. JORDAN AND CO., INC., WITHERS & RAVENEL, INC., ARTHUR R. COGSWELL, and LIGHTHOUSE ENGINEERING, PA, Defendants.
Appeal by plaintiffs from order entered 23 June 2014 by Judge John R. Jolly,
Jr. in New Hanover County Superior Court. Heard in the Court of Appeals
21 May 2015.
Shipman & Wright, LLP, by W. Cory Reiss, for plaintiff-appellants.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas M. Buckley, and Bugg & Wolfe, P.A., by William J. Wolf, for defendant-appellee Harold K. Jordan and Co., Inc.
McCULLOUGH, Judge.
Plaintiffs Julie and Brannon Lancaster appeal from a summary judgment
order entered in favor of defendant Harold K. Jordan and Co., Inc. Based on the
reasons stated herein, we affirm the order of the trial court.
I. Background
On 26 February 2008, plaintiffs Julie Lancaster and Brannon Lancaster (“Mrs.
Lancaster” and “Mr. Lancaster”) filed a complaint against defendants Harold K.
Jordan and Co., Inc. (“HKJ”), Withers & Ravenel, Inc. (“W&R”), Arthur R. Cogswell, LANCASTER V. HAROLD K. JORDAN & CO., INC.
Opinion of the Court
and Lighthouse Engineering, P.A. Plaintiffs advanced the following claims: Unfair
and Deceptive Trade Practices (“UDTP”) by HKJ; fraud by HKJ; negligent
misrepresentation by HKJ, Mr. Cogswell and W&R; and, negligence by all
defendants. It was designated as a complex business case on 31 March 2008.
On 15 December 2009, plaintiffs filed an amended complaint. Plaintiffs alleged
that in 1997, they purchased a tract of land located in Brunswick County (“the
property”). In 2003, they formed a limited liability company known as Village
Landing, LLC (“Village Landing”) and transferred the property to Village Landing.
In 2005, plaintiffs met with Harold K. Jordan and John Zabriskie, both agents of
HKJ, at HKJ’s offices in Wilmington, North Carolina. HKJ was a builder specializing
in the construction and renovation of multi-family housing. HKJ recommended that
plaintiffs construct apartments on the property and referred plaintiffs to Mr.
Cogswell, an architect. Prior to 27 October 2005, Mr. Cogswell prepared preliminary
sketch designs for an apartment complex, to be constructed by HKJ. Plaintiffs
decided they did not want to own or manage an apartment complex, and on or about
27 October 2005, Mrs. Lancaster requested that Mr. Cogswell prepare plans for the
construction of townhomes.
In the Fall of 2005, plaintiffs engaged W&R, a civil and environmental
consulting engineering firm, to assist them in developing the property as a townhouse
project, designing the utility and storm water management system, and obtaining
-2- LANCASTER V. HAROLD K. JORDAN & CO., INC.
Opinion of the Court
requisite governmental approvals. In November 2005, W&R prepared and delivered
to plaintiffs and HKJ a preliminary site layout for “Village Landing Townhomes.” In
February 2006, W&R petitioned the Town of Leland council for allocation of sanitary
sewer capacity for 60 townhome residences and submitted a “Commercial Zoning
Compliance Permit Application” for the proposed use as townhomes.
On 14 February 2006, plaintiffs and Mr. Jordan incorporated Shady Grove
(“Shady Grove”) with the intention that Shady Grove would purchase the property
and plaintiffs and Mr. Jordan would each own 50% interest. On 21 February 2006,
HKJ prepared and submitted to Mrs. Lancaster a “proposal for the construction of 60
condos.” Plaintiffs allege that Mrs. Lancaster inquired of Mr. Zabriskie the use of the
term “condos” and was informed that “the terms condominiums and townhomes were
one and the same.”
On 26 February 2006, Shady Grove and HKJ executed a contract for “the new
construction of 60 condos in Leland, NC” and provided the contract to Cooperative
Bank in order to receive financing. HKJ had prepared the contract. Once again,
plaintiffs allege they asked Mr. Zabriskie about the term “condos” in the contract and
Mr. Zabriskie informed Mrs. Lancaster that for purposes of the contract, “condos” and
townhouses were the same. By the end of March 2006, plaintiffs and Mr. Jordan
decided to abandon the idea of proceeding with the project in the name of Shady Grove
and Shady Grove never conducted any business. Thereafter, Mrs. Lancaster
-3- LANCASTER V. HAROLD K. JORDAN & CO., INC.
Opinion of the Court
requested that Mr. Zabriskie prepare a new contract between HKJ and Village
Landing, but no such contract was ever prepared.
During March and April of 2006, W&R, the Town of Leland, and the North
Carolina Department of Environmental and Natural Resources proceeded to obtain
approvals for townhomes. Plaintiff alleges that by April 2006, HKJ was well aware
that it was to build townhouses under the residential building code. On 8 May 2006,
Mr. Cogswell “sealed” the final construction drawings for “Grove Landing” (“the
project”) which indicated the building of townhouse units. Plaintiffs, relying on the
representations of HKJ, were billed for and became personally liable for all of the
substantial “soft costs” for the project.
During a meeting with Cooperative Bank in May 2006 to discuss funding for
the project, Mr. Zabriskie confirmed that the project was for the construction of
townhomes. Cooperative Bank proposed to fund the project in phases, with the first
loan from the bank to be in the amount of over $2 million. On 16 May 2006,
Cooperative Bank issued commitment letters to fund the project, “conditioned
specifically on the Plaintiffs personally guaranteeing each loan.” Based on
defendants’ representations, plaintiffs accepted the commitment from Cooperative
Bank and were induced to personally guarantee millions of dollars of debt of Village
Landing for the development of the project. On 22 May 2006, plaintiffs personally
guaranteed the debt to Cooperative Bank.
-4- LANCASTER V. HAROLD K. JORDAN & CO., INC.
Opinion of the Court
Plaintiffs further alleged as follows: In June and July of 2006, HKJ provided
the project plans to the Town of Leland for building permits to build townhouses. The
Town of Leland’s Building Inspector informed HKJ that the project plans prepared
by Mr. Cogswell could not be permitted for construction under the Residential
Building Code because the project plans appeared to be for the construction of
“apartments” or “condominiums.” The Building Inspector also informed HKJ that
the project had not been approved for the construction of townhomes and that the
Town of Leland could issue only one building permit per building in which three units
or apartments would be contained as opposed to three separate building permits
which would be required for the construction of townhomes. HKJ did not inform
plaintiffs of the conversations it had with the Building Inspector nor of any
deficiencies in Mr. Cogswell’s project plants. Instead, HKJ remained silent and began
construction although they had a duty to notify plaintiffs, Mr. Cogswell, and W&R of
the issues with the Town of Leland.
During the course of construction, plaintiffs alleged Mr. Zabriskie informed
Mrs. Lancaster that the townhouse units would be available in October or November
2006. In December 2006, HKJ told plaintiffs that the Town of Leland would not issue
certificates of occupancy for the units as townhomes but failed to inform plaintiffs
that it had known since building permits were issued that the units could not be
issued certificates of occupancy as townhomes. Between December 2006 and March
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Opinion of the Court
2007, plaintiffs were informed by HKJ that HKJ continued to attempt to get
certificates of occupancy for the units as townhouses. On 30 March 2007, the Town
of Leland issued certificates of occupancy for the completed units as condominiums.
Plaintiffs alleged that had W&R submitted the project under the Town of
Leland’s subdivision ordinance; had Mr. Cogswell prepared the project plans for the
construction of townhomes under the Residential Building Code; and, had HKJ
constructed the project as townhomes pursuant to the Residential Building Code, the
first twelve units of the project would have been sold and closed by March 2007.
Instead, Village Landing was unable to pay off much of its loan from Cooperative
Bank and unable to generate a profit of approximately $350,000.00. In addition,
Cooperative Bank would not fund the completion of the project because of the
inability to sell the units. Mrs. Lancaster was forced to cash in her IRA in order to
obtain the money necessary to continue to fund the interest payments to Cooperative
Bank. Plaintiffs alleged that as a result of defendants’ negligence and fraudulent
representations, plaintiffs suffered personal injury, separate and distinct from
Village Landing to support plaintiffs’ personal liability to various lenders, including
Cooperative Bank, and Village Landing did not have the assets, separate and distinct
from Village Landing, to pay any of that liability.
On 19 January 2010, HKJ filed an answer to plaintiffs’ amended complaint
and included counterclaims. HKJ argued that an arbitration award in Harold K.
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Opinion of the Court
Jordan v. Village Landing, LLC and Shady Grove Development, Inc. (American
Arbitration Association Case No.: 31 110 Y 00204 07) constituted a full and proper
adjudication of all the purported rights of plaintiffs’ claims against Mr. Jordan,
therefore, plaintiffs were barred by the arbitration award. HKJ raised the following
defenses: res judicata; abatement; collateral estoppel; illegality; waiver; contributory
negligence; intervening acts and negligence; credit or set-off; impossibility; economic
loss rule; real party and interest; estoppel; laches; release; assumption of risk; failure
to mitigate damages; breach of implied warrant of plans and specifications; and,
reservation of rights. HKJ presented the following counterclaims: piercing the
corporate veil; breach of contract; fraudulent conveyances; and, UDTP.
On 26 May 2011, plaintiffs filed notice of voluntary dismissal with prejudice as
to its claims against Mr. Cogswell. On 2 May 2012, plaintiffs filed a notice of
voluntary dismissal with prejudice as to its claims against W&R. The only defendant
remaining was HKJ.
On 29 April 2013, HKJ moved for summary judgment based upon res judicata
and collateral estoppel. On 23 July 2014, the trial court entered an order granting
summary judgment in favor of HKJ.
The trial court noted that earlier, in July 2007, HKJ filed an action against
Shady Grove and Village Landing alleging breach of the construction contract. Shady
Grove and Village Landing filed an answer and counterclaim which sought to submit
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Opinion of the Court
HKJ’s claims against Shady Grove alone to arbitration based on an arbitration clause
in the written contract between HKJ and Shady Grove. HKJ successfully moved to
compel arbitration to all claims between HKJ and Village Landing as well, based on
a ruling by a trial court judge that the contract at issue was effectively assigned from
Shady Grove to Village Landing. In a 19 November 2007 order by the trial court,
HKJ, Shady Grove, and Village Landing were ordered to “arbitrate all their pending
claims in this action” including “all counterclaims of Village Landing” in the pending
arbitration between HKJ and Shady Grove. Village Landing’s arbitration
counterclaims “were substantially similar if not substantively identical to the Claims
asserted in Plaintiffs’ Amended Complaint in the instant action.” Village Landing
alleged that HKJ had “failed to construct townhouse units on the subject property[,]”
causing Village Landing “great financial harm and damage.” The arbitration hearing
took place in March 2008. Plaintiffs were not named in their individual capacities as
parties to the arbitration action, but were present and testified at the arbitration.
Plaintiffs, through Village Landing, called an additional 16 witnesses to testify. The
arbitrator rendered his judgment in April 2008 and found that Village Landing’s
counterclaims failed. In June 2008, a judgment confirming the arbitration award was
entered in Wake County Superior Court. Village Landing’s appeal of the trial court’s
order compelling arbitration was dismissed by the North Carolina Court of Appeals
and a petition to the North Carolina Supreme Court for writ of certiorari was denied.
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Opinion of the Court
Meanwhile, plaintiffs filed the current action in their individual capacities less than
20 days prior to the March 2008 arbitration hearing.
In its summary judgment order in favor of HKJ, the trial court concluded that
plaintiffs are the same party as Village Landing for purposes of collateral estoppel,
plaintiffs raised and litigated the same issues in the present case during the
arbitration, and that the arbitrator’s final judgment actually determined the
propriety of HKJ’s conduct. Based on the foregoing, the trial court concluded that
plaintiffs were collaterally estopped “from relitigating the issue of whether HKJ made
negligent or intentional misrepresentations during the construction process” and that
there was “no triable fact that would serve as a basis for liability against HKJ.”
On 3 July 2014, plaintiffs filed notice of appeal.
II. Standard of Review
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.” Peter v. Vullo, __ N.C. App. __, __, 758 S.E.2d 431, 434 (2014) (citation omitted).
“When considering a motion for summary judgment, the trial judge must view the
presented evidence in a light most favorable to the nonmoving party.” Sims v.
Graystone Ophthalmology Assocs., P.A., __ N.C. App. __, __, 757 S.E.2d 925, 926
(2014) (citation omitted).
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Opinion of the Court
III. Discussion
Plaintiffs argue that the trial court erred by granting HKJ’s motion for
summary judgment based on the doctrine of collateral estoppel. Specifically,
plaintiffs argue that the trial court erred by relying on an exception recognized in
Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492 (1957). Plaintiffs also assert that
the trial court’s summary judgment order deprived them of their constitutional right
to a jury trial. After careful review, we find plaintiffs’ arguments unconvincing.
“Under the collateral estoppel doctrine, parties and parties in privity with
them . . . are precluded from retrying fully litigated issues that were decided in any
prior determination and were necessary to the prior determination.” Turner v.
Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citation and
quotation marks omitted). “[Collateral estoppel] is designed to prevent repetitious
lawsuits overs matters which have once been decided and which have remained
substantially static, factually and legally.” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (citation omitted).
To successfully assert collateral estoppel as a bar to plaintiffs’ claims, defendant would need to show [(1)] that the earlier suit resulted in a final judgment on the merits, [(2)] that the issue in question was identical to an issue actually litigated and necessary to the judgment, and [(3)] that both [defendant] and [plaintiffs] were either parties to the earlier suit or were in privity with parties.
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Opinion of the Court
Turner, 363 N.C. at 558-59, 681 S.E.2d at 773-74 (citing Thomas M. McInnis &
Assocs. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986)).
Whether or not a person was a party to a prior suit must be determined as a matter of substance and not of mere form. The courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest.
King, 284 N.C. at 357, 200 S.E.2d at 806 (citations and quotation marks omitted).
Here, plaintiffs conceded before the trial court that the arbitration award was
a final judgment on the merits as to claims against HKJ, Village Landing, and Shady
Grove. The trial court also held that there was an identity of issues: “at the very
heart of Plaintiffs’ Claims against HKJ in this matter is the allegation that HKJ
negligently or purposely misled Plaintiffs in constructing ‘condominiums, rather than
townhouses.’ This exact issue was extensively litigated during the Arbitration.” The
arbitration award “plainly spells out the arbitrator’s findings, in which he specifically
absolved HKJ of any responsibility on the issues underlying Plaintiff’s Claims here.”
The trial court held that because Village Landing’s arbitration counterclaims “rested
almost entirely on the underlying allegation that HKJ either negligently or purposely
misled Plaintiffs and their LLC[,] [d]etermining whether HKJ was guilty of such
misrepresentations was absolutely essential to the Arbitration Action’s ‘purpose’ and
the rendering of the Arbitration Award.” The portion of the trial court’s order that
plaintiffs now challenge is its holding as to the identity of parties:
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Opinion of the Court
Taken as a whole, the North Carolina case law is inconclusive as to whether the facts in this matter unequivocally support a conclusion that Plaintiffs in substance were parties to the Arbitration Action or were in privity with Village Landing. As such, this court declines to reach a conclusion on either proposition. Instead, the court relies on the related “Lassiter exception” because it most clearly resolves this issue.
In Lassiter, the plaintiff filed an action against the defendant to recover
damages suffered by him after a collision between a car driven by the defendant and
a car owned by the plaintiff, but being driven by the plaintiff’s minor son. Lassiter, 246 N.C. at 35, 97 S.E.2d at 493. A few days prior to the institution of the plaintiff’s
action, a third party instituted an action against the defendant. Id. The third party
was a passenger in a third automobile that collided with the defendant’s car after the
collision between the plaintiff and the defendant’s car. Id. at 35, 97 S.E.2d at 493-94.
In the third party’s action, the defendant set up a cross-action against the plaintiff’s
son and the driver of the third automobile, arguing that they were concurrently
negligent with the defendant. The plaintiff was appointed as guardian ad litem for
his son and filed an answer for and on behalf of his son, arguing that the negligence
was solely on behalf of the defendant. Id. at 36, 97 S.E.2d at 494. A jury found the
defendant guilty of negligence and that the negligence of the plaintiff’s son and the
driver of the third automobile concurred with the negligence of the defendant in
causing the third party’s injuries. A judgment was entered in accordance with the
jury’s verdict and the defendant was permitted to amend his answer to allege that
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Opinion of the Court
the judgment in the third party’s case “as a plea in bar or res judicata 1 with respect
to the present action.” Id. at 36, 97 S.E.2d at 494. The trial court held that the prior
action constituted a bar to the plaintiff’s present action. Id.
On appeal, the sole issue before the North Carolina Supreme Court was as
follows:
Does the fact that a father acted as guardian ad litem for his minor son in defending a cross-action against the son (who was driving a family purpose automobile owned by the father), in an action in which a passenger in a third automobile was the plaintiff, and the defendant in this action was also the original defendant in the former action, make the decision on the cross-action in the former litigation binding on the father in an action to recover in his individual capacity for medical expenses and loss of earnings and services of the son and damage to his automobile?
Id. The Lassiter Court noted that although “[o]rdinarily, the plea of res judicata may
be sustained only when there is an identity of parties, of subject matter, and of
issues[,]” there was a well-established exception to the general rule:
A person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary interest or financial interest in the judgment or in the determination of a question of fact or a question of law with reference to the same subject matter, or
1 “The doctrines of res judicata and collateral estoppel are companion doctrines developed by the courts ‘for the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation. . . . Like res judicata, collateral estoppel only applies if the prior action involved the same parties or those in privity with the parties and the same issues.” Cline v. McCullen, 148 N.C. App. 147, 149-50, 557 S.E.2d 588, 591(2001) (citations omitted).
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Opinion of the Court
transactions; if the other party has notice of his participation, the other party is equally bound.
Id. at 39, 97 S.E.2d at 496 (citation omitted) (emphasis in original). “Likewise, with
respect to the rule ordinarily requiring identity of parties, . . . ‘[t]hese rules have been
denied application, however, where a party to one action in his individual capacity
and to another action in his representative capacity, is in each case asserting or
protecting his individual rights.’ ” Id. The Lassiter Court, affirming the trial court’s
holding, reasoned that the plaintiff, acting as guardian ad litem for his son, took every
action he could have taken as if he had been a defendant himself. The plaintiff
exercised complete control over his son’s defense and in doing so, “he necessarily was
defending the cross-action as much for his own protection as for that of his son.” Id.
at 40, 97 S.E.2d at 497.
We will first consider plaintiffs’ “control” of the prior arbitration and the
present action, “the threshold requirement of the exception to the rule requiring
privity of identities.” Williams v. Peabody, 217 N.C. App. 1, 10, 719 S.E.2d 88, 95
(2011). The parties to the arbitration included HKJ, Village Landing, and Shady
Grove. It is undisputed that Mr. and Mrs. Lancaster were the sole member-managers
of Village Landing. At the arbitration hearing, Village Landing presented a total of
18 witnesses and plaintiffs themselves testified at the hearing. In the present action,
Mr. and Mrs. Lancaster are the plaintiffs. Therefore, we hold that this is sufficient
to satisfy the control element of the Lassiter exception.
- 14 - LANCASTER V. HAROLD K. JORDAN & CO., INC.
Opinion of the Court
The second requirement of the Lassiter exception requires that plaintiffs have
“a proprietary interest or financial interest in the judgment[.]” Lassiter, 246 N.C. at
39, 97 S.E.2d at 496. As the trial court properly found, Village Landing set forth
counterclaims in the arbitration action against HKJ “for damages allegedly resulting
from [HKJ’s] construction of Condominiums instead of Townhomes, and defects in
construction of the sewer system.” Because plaintiffs were the sole member-
managers of Village Landing, it necessarily follows that plaintiffs had a proprietary
or financial interest in the outcome of the arbitration and any judgment affecting
Village Landing. Plaintiffs were equally concerned in defending Village Landing and
advancing its counterclaims in the arbitration action as plaintiffs are concerned with
advancing their claims in the present action.
The third requirement of the Lassiter exception is whether plaintiffs have an
interest “in the determination of a question of fact or a question of law with reference
to the same subject matter, or transactions[.]” Id. In the present action, plaintiffs
are bringing forth claims such as fraud and negligent misrepresentation against HKJ
for intentionally and negligently misleading plaintiffs by constructing condominiums
instead of townhomes. In the arbitration action, plaintiffs, through Village Landing,
alleged that HKJ intentionally and negligently made false representations to Village
Landing that the units being constructed were townhomes. We agree with the trial
court that “[n]ot only did Plaintiffs have an ‘interest’ in the Arbitrator’s
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Opinion of the Court
determination” of these issues, but that “it was central” to Village Landing’s case
against HKJ in the arbitration action, “as it is in their individual action here. As
such, this element of the Lassiter exception is plainly met.”
The last requirement of the Lassiter exception is that “if the other party has
notice of his participation, the other party is equally bound.” Id. Under these
circumstances, it is clear that plaintiffs had notice of the arbitration.
Based on the foregoing analysis, we hold that the trial court did not err by
relying on the Lassiter exception to the rule requiring an identity of parties.
Accordingly, an identity of parties existed between plaintiffs and Village Landing for
purposes of the collateral estoppel doctrine and we affirm the trial court’s grant of
summary judgment in favor of HKJ.
Lastly, we note that our case law demonstrates that “summary judgment does
not deprive [plaintiffs] of their right to a jury trial. The right to a jury trial accrues
only when there is a genuine issue of fact to be decided at trial.” State ex rel. Albright
v. Arellano, 165 N.C. App. 609, 618, 599 S.E.2d 415, 421 (2004). Because we hold
that the trial court did not err by granting summary judgment in favor of HKJ,
plaintiffs’ argument that they were deprived of the right to a jury trial necessarily
fails.
IV. Conclusion
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Opinion of the Court
The order of the trial court, granting summary judgment in favor of HKJ, is
affirmed.
AFFIRMED.
Judges STROUD and INMAN concur.
- 17 - | 09-01-2015 | [
"IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA14-1413 Filed: 1 September 2015 New Hanover County, No. 08 CVS 883 JULIE LANCASTER and BRANNON LANCASTER, Plaintiffs, v. HAROLD K. JORDAN AND CO., INC., WITHERS & RAVENEL, INC., ARTHUR R. COGSWELL, and LIGHTHOUSE ENGINEERING, PA, Defendants. Appeal by plaintiffs from order entered 23 June 2014 by Judge John R. Jolly, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 21 May 2015. Shipman & Wright, LLP, by W. Cory Reiss, for plaintiff-appellants. Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas M. Buckley, and Bugg & Wolfe, P.A., by William J. Wolf, for defendant-appellee Harold K. Jordan and Co., Inc. McCULLOUGH, Judge. Plaintiffs Julie and Brannon Lancaster appeal from a summary judgment order entered in favor of defendant Harold K. Jordan and Co., Inc. Based on the reasons stated herein, we affirm the order of the trial court.",
"I. Background On 26 February 2008, plaintiffs Julie Lancaster and Brannon Lancaster (“Mrs. Lancaster” and “Mr. Lancaster”) filed a complaint against defendants Harold K. Jordan and Co., Inc. (“HKJ”), Withers & Ravenel, Inc. (“W&R”), Arthur R. Cogswell, LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court and Lighthouse Engineering, P.A. Plaintiffs advanced the following claims: Unfair and Deceptive Trade Practices (“UDTP”) by HKJ; fraud by HKJ; negligent misrepresentation by HKJ, Mr. Cogswell and W&R; and, negligence by all defendants.",
"It was designated as a complex business case on 31 March 2008. On 15 December 2009, plaintiffs filed an amended complaint. Plaintiffs alleged that in 1997, they purchased a tract of land located in Brunswick County (“the property”). In 2003, they formed a limited liability company known as Village Landing, LLC (“Village Landing”) and transferred the property to Village Landing. In 2005, plaintiffs met with Harold K. Jordan and John Zabriskie, both agents of HKJ, at HKJ’s offices in Wilmington, North Carolina. HKJ was a builder specializing in the construction and renovation of multi-family housing. HKJ recommended that plaintiffs construct apartments on the property and referred plaintiffs to Mr. Cogswell, an architect. Prior to 27 October 2005, Mr. Cogswell prepared preliminary sketch designs for an apartment complex, to be constructed by HKJ. Plaintiffs decided they did not want to own or manage an apartment complex, and on or about 27 October 2005, Mrs. Lancaster requested that Mr. Cogswell prepare plans for the construction of townhomes. In the Fall of 2005, plaintiffs engaged W&R, a civil and environmental consulting engineering firm, to assist them in developing the property as a townhouse project, designing the utility and storm water management system, and obtaining -2- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court requisite governmental approvals.",
"In November 2005, W&R prepared and delivered to plaintiffs and HKJ a preliminary site layout for “Village Landing Townhomes.” In February 2006, W&R petitioned the Town of Leland council for allocation of sanitary sewer capacity for 60 townhome residences and submitted a “Commercial Zoning Compliance Permit Application” for the proposed use as townhomes. On 14 February 2006, plaintiffs and Mr. Jordan incorporated Shady Grove (“Shady Grove”) with the intention that Shady Grove would purchase the property and plaintiffs and Mr. Jordan would each own 50% interest. On 21 February 2006, HKJ prepared and submitted to Mrs. Lancaster a “proposal for the construction of 60 condos.” Plaintiffs allege that Mrs. Lancaster inquired of Mr. Zabriskie the use of the term “condos” and was informed that “the terms condominiums and townhomes were one and the same.” On 26 February 2006, Shady Grove and HKJ executed a contract for “the new construction of 60 condos in Leland, NC” and provided the contract to Cooperative Bank in order to receive financing. HKJ had prepared the contract.",
"Once again, plaintiffs allege they asked Mr. Zabriskie about the term “condos” in the contract and Mr. Zabriskie informed Mrs. Lancaster that for purposes of the contract, “condos” and townhouses were the same. By the end of March 2006, plaintiffs and Mr. Jordan decided to abandon the idea of proceeding with the project in the name of Shady Grove and Shady Grove never conducted any business. Thereafter, Mrs. Lancaster -3- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court requested that Mr. Zabriskie prepare a new contract between HKJ and Village Landing, but no such contract was ever prepared.",
"During March and April of 2006, W&R, the Town of Leland, and the North Carolina Department of Environmental and Natural Resources proceeded to obtain approvals for townhomes. Plaintiff alleges that by April 2006, HKJ was well aware that it was to build townhouses under the residential building code. On 8 May 2006, Mr. Cogswell “sealed” the final construction drawings for “Grove Landing” (“the project”) which indicated the building of townhouse units. Plaintiffs, relying on the representations of HKJ, were billed for and became personally liable for all of the substantial “soft costs” for the project. During a meeting with Cooperative Bank in May 2006 to discuss funding for the project, Mr. Zabriskie confirmed that the project was for the construction of townhomes. Cooperative Bank proposed to fund the project in phases, with the first loan from the bank to be in the amount of over $2 million.",
"On 16 May 2006, Cooperative Bank issued commitment letters to fund the project, “conditioned specifically on the Plaintiffs personally guaranteeing each loan.” Based on defendants’ representations, plaintiffs accepted the commitment from Cooperative Bank and were induced to personally guarantee millions of dollars of debt of Village Landing for the development of the project. On 22 May 2006, plaintiffs personally guaranteed the debt to Cooperative Bank. -4- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court Plaintiffs further alleged as follows: In June and July of 2006, HKJ provided the project plans to the Town of Leland for building permits to build townhouses. The Town of Leland’s Building Inspector informed HKJ that the project plans prepared by Mr. Cogswell could not be permitted for construction under the Residential Building Code because the project plans appeared to be for the construction of “apartments” or “condominiums.” The Building Inspector also informed HKJ that the project had not been approved for the construction of townhomes and that the Town of Leland could issue only one building permit per building in which three units or apartments would be contained as opposed to three separate building permits which would be required for the construction of townhomes. HKJ did not inform plaintiffs of the conversations it had with the Building Inspector nor of any deficiencies in Mr. Cogswell’s project plants.",
"Instead, HKJ remained silent and began construction although they had a duty to notify plaintiffs, Mr. Cogswell, and W&R of the issues with the Town of Leland. During the course of construction, plaintiffs alleged Mr. Zabriskie informed Mrs. Lancaster that the townhouse units would be available in October or November 2006. In December 2006, HKJ told plaintiffs that the Town of Leland would not issue certificates of occupancy for the units as townhomes but failed to inform plaintiffs that it had known since building permits were issued that the units could not be issued certificates of occupancy as townhomes. Between December 2006 and March -5- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court 2007, plaintiffs were informed by HKJ that HKJ continued to attempt to get certificates of occupancy for the units as townhouses. On 30 March 2007, the Town of Leland issued certificates of occupancy for the completed units as condominiums. Plaintiffs alleged that had W&R submitted the project under the Town of Leland’s subdivision ordinance; had Mr. Cogswell prepared the project plans for the construction of townhomes under the Residential Building Code; and, had HKJ constructed the project as townhomes pursuant to the Residential Building Code, the first twelve units of the project would have been sold and closed by March 2007.",
"Instead, Village Landing was unable to pay off much of its loan from Cooperative Bank and unable to generate a profit of approximately $350,000.00. In addition, Cooperative Bank would not fund the completion of the project because of the inability to sell the units. Mrs. Lancaster was forced to cash in her IRA in order to obtain the money necessary to continue to fund the interest payments to Cooperative Bank. Plaintiffs alleged that as a result of defendants’ negligence and fraudulent representations, plaintiffs suffered personal injury, separate and distinct from Village Landing to support plaintiffs’ personal liability to various lenders, including Cooperative Bank, and Village Landing did not have the assets, separate and distinct from Village Landing, to pay any of that liability. On 19 January 2010, HKJ filed an answer to plaintiffs’ amended complaint and included counterclaims. HKJ argued that an arbitration award in Harold K. -6- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court Jordan v. Village Landing, LLC and Shady Grove Development, Inc. (American Arbitration Association Case No.",
": 31 110 Y 00204 07) constituted a full and proper adjudication of all the purported rights of plaintiffs’ claims against Mr. Jordan, therefore, plaintiffs were barred by the arbitration award. HKJ raised the following defenses: res judicata; abatement; collateral estoppel; illegality; waiver; contributory negligence; intervening acts and negligence; credit or set-off; impossibility; economic loss rule; real party and interest; estoppel; laches; release; assumption of risk; failure to mitigate damages; breach of implied warrant of plans and specifications; and, reservation of rights. HKJ presented the following counterclaims: piercing the corporate veil; breach of contract; fraudulent conveyances; and, UDTP. On 26 May 2011, plaintiffs filed notice of voluntary dismissal with prejudice as to its claims against Mr. Cogswell. On 2 May 2012, plaintiffs filed a notice of voluntary dismissal with prejudice as to its claims against W&R.",
"The only defendant remaining was HKJ. On 29 April 2013, HKJ moved for summary judgment based upon res judicata and collateral estoppel. On 23 July 2014, the trial court entered an order granting summary judgment in favor of HKJ. The trial court noted that earlier, in July 2007, HKJ filed an action against Shady Grove and Village Landing alleging breach of the construction contract. Shady Grove and Village Landing filed an answer and counterclaim which sought to submit -7- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court HKJ’s claims against Shady Grove alone to arbitration based on an arbitration clause in the written contract between HKJ and Shady Grove. HKJ successfully moved to compel arbitration to all claims between HKJ and Village Landing as well, based on a ruling by a trial court judge that the contract at issue was effectively assigned from Shady Grove to Village Landing. In a 19 November 2007 order by the trial court, HKJ, Shady Grove, and Village Landing were ordered to “arbitrate all their pending claims in this action” including “all counterclaims of Village Landing” in the pending arbitration between HKJ and Shady Grove. Village Landing’s arbitration counterclaims “were substantially similar if not substantively identical to the Claims asserted in Plaintiffs’ Amended Complaint in the instant action.” Village Landing alleged that HKJ had “failed to construct townhouse units on the subject property[,]” causing Village Landing “great financial harm and damage.” The arbitration hearing took place in March 2008.",
"Plaintiffs were not named in their individual capacities as parties to the arbitration action, but were present and testified at the arbitration. Plaintiffs, through Village Landing, called an additional 16 witnesses to testify. The arbitrator rendered his judgment in April 2008 and found that Village Landing’s counterclaims failed. In June 2008, a judgment confirming the arbitration award was entered in Wake County Superior Court. Village Landing’s appeal of the trial court’s order compelling arbitration was dismissed by the North Carolina Court of Appeals and a petition to the North Carolina Supreme Court for writ of certiorari was denied. -8- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court Meanwhile, plaintiffs filed the current action in their individual capacities less than 20 days prior to the March 2008 arbitration hearing. In its summary judgment order in favor of HKJ, the trial court concluded that plaintiffs are the same party as Village Landing for purposes of collateral estoppel, plaintiffs raised and litigated the same issues in the present case during the arbitration, and that the arbitrator’s final judgment actually determined the propriety of HKJ’s conduct. Based on the foregoing, the trial court concluded that plaintiffs were collaterally estopped “from relitigating the issue of whether HKJ made negligent or intentional misrepresentations during the construction process” and that there was “no triable fact that would serve as a basis for liability against HKJ.” On 3 July 2014, plaintiffs filed notice of appeal.",
"II. Standard of Review “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Peter v. Vullo, __ N.C. App. __, __, 758 S.E.2d 431, 434 (2014) (citation omitted). “When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.” Sims v. Graystone Ophthalmology Assocs., P.A., __ N.C. App.",
"__, __, 757 S.E.2d 925, 926 (2014) (citation omitted). -9- LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court III. Discussion Plaintiffs argue that the trial court erred by granting HKJ’s motion for summary judgment based on the doctrine of collateral estoppel. Specifically, plaintiffs argue that the trial court erred by relying on an exception recognized in Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492 (1957). Plaintiffs also assert that the trial court’s summary judgment order deprived them of their constitutional right to a jury trial. After careful review, we find plaintiffs’ arguments unconvincing. “Under the collateral estoppel doctrine, parties and parties in privity with them .",
". . are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citation and quotation marks omitted). “[Collateral estoppel] is designed to prevent repetitious lawsuits overs matters which have once been decided and which have remained substantially static, factually and legally.” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (citation omitted). To successfully assert collateral estoppel as a bar to plaintiffs’ claims, defendant would need to show [(1)] that the earlier suit resulted in a final judgment on the merits, [(2)] that the issue in question was identical to an issue actually litigated and necessary to the judgment, and [(3)] that both [defendant] and [plaintiffs] were either parties to the earlier suit or were in privity with parties.",
"- 10 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court Turner, 363 N.C. at 558-59, 681 S.E.2d at 773-74 (citing Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986)). Whether or not a person was a party to a prior suit must be determined as a matter of substance and not of mere form. The courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest. King, 284 N.C. at 357, 200 S.E.2d at 806 (citations and quotation marks omitted). Here, plaintiffs conceded before the trial court that the arbitration award was a final judgment on the merits as to claims against HKJ, Village Landing, and Shady Grove.",
"The trial court also held that there was an identity of issues: “at the very heart of Plaintiffs’ Claims against HKJ in this matter is the allegation that HKJ negligently or purposely misled Plaintiffs in constructing ‘condominiums, rather than townhouses.’ This exact issue was extensively litigated during the Arbitration.” The arbitration award “plainly spells out the arbitrator’s findings, in which he specifically absolved HKJ of any responsibility on the issues underlying Plaintiff’s Claims here.” The trial court held that because Village Landing’s arbitration counterclaims “rested almost entirely on the underlying allegation that HKJ either negligently or purposely misled Plaintiffs and their LLC[,] [d]etermining whether HKJ was guilty of such misrepresentations was absolutely essential to the Arbitration Action’s ‘purpose’ and the rendering of the Arbitration Award.” The portion of the trial court’s order that plaintiffs now challenge is its holding as to the identity of parties: - 11 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court Taken as a whole, the North Carolina case law is inconclusive as to whether the facts in this matter unequivocally support a conclusion that Plaintiffs in substance were parties to the Arbitration Action or were in privity with Village Landing.",
"As such, this court declines to reach a conclusion on either proposition. Instead, the court relies on the related “Lassiter exception” because it most clearly resolves this issue. In Lassiter, the plaintiff filed an action against the defendant to recover damages suffered by him after a collision between a car driven by the defendant and a car owned by the plaintiff, but being driven by the plaintiff’s minor son. Lassiter, 246 N.C. at 35, 97 S.E.2d at 493. A few days prior to the institution of the plaintiff’s action, a third party instituted an action against the defendant. Id.",
"The third party was a passenger in a third automobile that collided with the defendant’s car after the collision between the plaintiff and the defendant’s car. Id. at 35, 97 S.E.2d at 493-94. In the third party’s action, the defendant set up a cross-action against the plaintiff’s son and the driver of the third automobile, arguing that they were concurrently negligent with the defendant. The plaintiff was appointed as guardian ad litem for his son and filed an answer for and on behalf of his son, arguing that the negligence was solely on behalf of the defendant. Id.",
"at 36, 97 S.E.2d at 494. A jury found the defendant guilty of negligence and that the negligence of the plaintiff’s son and the driver of the third automobile concurred with the negligence of the defendant in causing the third party’s injuries. A judgment was entered in accordance with the jury’s verdict and the defendant was permitted to amend his answer to allege that - 12 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court the judgment in the third party’s case “as a plea in bar or res judicata 1 with respect to the present action.” Id. at 36, 97 S.E.2d at 494. The trial court held that the prior action constituted a bar to the plaintiff’s present action.",
"Id. On appeal, the sole issue before the North Carolina Supreme Court was as follows: Does the fact that a father acted as guardian ad litem for his minor son in defending a cross-action against the son (who was driving a family purpose automobile owned by the father), in an action in which a passenger in a third automobile was the plaintiff, and the defendant in this action was also the original defendant in the former action, make the decision on the cross-action in the former litigation binding on the father in an action to recover in his individual capacity for medical expenses and loss of earnings and services of the son and damage to his automobile? Id. The Lassiter Court noted that although “[o]rdinarily, the plea of res judicata may be sustained only when there is an identity of parties, of subject matter, and of issues[,]” there was a well-established exception to the general rule: A person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary interest or financial interest in the judgment or in the determination of a question of fact or a question of law with reference to the same subject matter, or 1 “The doctrines of res judicata and collateral estoppel are companion doctrines developed by the courts ‘for the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation.",
". . . Like res judicata, collateral estoppel only applies if the prior action involved the same parties or those in privity with the parties and the same issues.” Cline v. McCullen, 148 N.C. App. 147, 149-50, 557 S.E.2d 588, 591(2001) (citations omitted). - 13 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court transactions; if the other party has notice of his participation, the other party is equally bound. Id. at 39, 97 S.E.2d at 496 (citation omitted) (emphasis in original). “Likewise, with respect to the rule ordinarily requiring identity of parties, . . . ‘[t]hese rules have been denied application, however, where a party to one action in his individual capacity and to another action in his representative capacity, is in each case asserting or protecting his individual rights.’ ” Id. The Lassiter Court, affirming the trial court’s holding, reasoned that the plaintiff, acting as guardian ad litem for his son, took every action he could have taken as if he had been a defendant himself. The plaintiff exercised complete control over his son’s defense and in doing so, “he necessarily was defending the cross-action as much for his own protection as for that of his son.” Id. at 40, 97 S.E.2d at 497.",
"We will first consider plaintiffs’ “control” of the prior arbitration and the present action, “the threshold requirement of the exception to the rule requiring privity of identities.” Williams v. Peabody, 217 N.C. App. 1, 10, 719 S.E.2d 88, 95 (2011). The parties to the arbitration included HKJ, Village Landing, and Shady Grove. It is undisputed that Mr. and Mrs. Lancaster were the sole member-managers of Village Landing. At the arbitration hearing, Village Landing presented a total of 18 witnesses and plaintiffs themselves testified at the hearing. In the present action, Mr. and Mrs. Lancaster are the plaintiffs.",
"Therefore, we hold that this is sufficient to satisfy the control element of the Lassiter exception. - 14 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court The second requirement of the Lassiter exception requires that plaintiffs have “a proprietary interest or financial interest in the judgment[. ]” Lassiter, 246 N.C. at 39, 97 S.E.2d at 496. As the trial court properly found, Village Landing set forth counterclaims in the arbitration action against HKJ “for damages allegedly resulting from [HKJ’s] construction of Condominiums instead of Townhomes, and defects in construction of the sewer system.” Because plaintiffs were the sole member- managers of Village Landing, it necessarily follows that plaintiffs had a proprietary or financial interest in the outcome of the arbitration and any judgment affecting Village Landing. Plaintiffs were equally concerned in defending Village Landing and advancing its counterclaims in the arbitration action as plaintiffs are concerned with advancing their claims in the present action.",
"The third requirement of the Lassiter exception is whether plaintiffs have an interest “in the determination of a question of fact or a question of law with reference to the same subject matter, or transactions[. ]” Id. In the present action, plaintiffs are bringing forth claims such as fraud and negligent misrepresentation against HKJ for intentionally and negligently misleading plaintiffs by constructing condominiums instead of townhomes. In the arbitration action, plaintiffs, through Village Landing, alleged that HKJ intentionally and negligently made false representations to Village Landing that the units being constructed were townhomes. We agree with the trial court that “[n]ot only did Plaintiffs have an ‘interest’ in the Arbitrator’s - 15 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court determination” of these issues, but that “it was central” to Village Landing’s case against HKJ in the arbitration action, “as it is in their individual action here. As such, this element of the Lassiter exception is plainly met.” The last requirement of the Lassiter exception is that “if the other party has notice of his participation, the other party is equally bound.” Id. Under these circumstances, it is clear that plaintiffs had notice of the arbitration.",
"Based on the foregoing analysis, we hold that the trial court did not err by relying on the Lassiter exception to the rule requiring an identity of parties. Accordingly, an identity of parties existed between plaintiffs and Village Landing for purposes of the collateral estoppel doctrine and we affirm the trial court’s grant of summary judgment in favor of HKJ. Lastly, we note that our case law demonstrates that “summary judgment does not deprive [plaintiffs] of their right to a jury trial. The right to a jury trial accrues only when there is a genuine issue of fact to be decided at trial.” State ex rel. Albright v. Arellano, 165 N.C. App.",
"609, 618, 599 S.E.2d 415, 421 (2004). Because we hold that the trial court did not err by granting summary judgment in favor of HKJ, plaintiffs’ argument that they were deprived of the right to a jury trial necessarily fails. IV. Conclusion - 16 - LANCASTER V. HAROLD K. JORDAN & CO., INC. Opinion of the Court The order of the trial court, granting summary judgment in favor of HKJ, is affirmed. AFFIRMED. Judges STROUD and INMAN concur.",
"- 17 -"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2832619/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 99.1 News release via Canada NewsWire, Vancouver 604-669-7764 Attention Business Editors: Entree Gold 2009 Exploration and Corporate Update VANCOUVER, Dec. 21 /CNW/ - Entree Gold Inc. (TSX:ETG; NYSE Amex:EGI; Frankfurt:EKA - "Entree" or the "Company") reached a number of milestones in 2009. These include the conversion of key concessions at Lookout Hill, Mongolia into long term mining licences as part of the Oyu Tolgoi Investment Agreement; acquisition and consolidation of strategic exploration properties in the Yerington copper camp in Nevada, USA; and continued exploration and testing of porphyry copper targets in New Mexico and Arizona, USA. Exploration and corporate highlights of 2009 include: << - Signing of the long-awaited Oyu Tolgoi Investment Agreement between the Mongolian government and Entree's joint venture partner, Ivanhoe Mines Ltd. (TSX: IVN; NYSE: IVN; NASDAQ: IVN - "Ivanhoe Mines") and largest shareholder, Rio Tinto (NYSE: RTP; LSE: RIO.L; ASX: RIO.AX); - The conversion of Entree's Shivee Tolgoi and Javhlant exploration licences into mining licences; - Acquisition and consolidation of a large, underexplored and highly prospective porphyry copper land package in the Yerington district of Nevada; - Entree's agreement with PacMag Metals Ltd. (ASX:PMH - "PacMag") to acquire all of their outstanding shares and options, as part of the Yerington area consolidation; - Expansion of porphyry copper-gold mineralization at Lordsburg, New Mexico; - Continued exploration of Togoot coal deposits through additional drilling and the preparation of a Mongolian resource report in advance of a mining licence application; - Drill testing copper-gold targets on the Huaixi project in China. >> Mongolia Entree-Ivanhoe Joint Venture The successful conclusion to negotiations that culminated in the signing of the Oyu Tolgoi Investment Agreement in October 2009 provides stability to Entree's Lookout Hill portion of the Oyu Tolgoi project and sets the stage for future project development. Entree's Hugo North Extension and Heruga deposits are key elements for consideration as the Oyu Tolgoi project advances towards production. Ivanhoe Mines is preparing an updated Integrated Development Plan that is expected to provide a projected timeline and work program related to the construction and completion of the massive Oyu Tolgoi mining complex. Abolition of the 68% windfall tax, to take effect in January 2011, was also announced in August 2009. This move by the Mongolian government signaled an awareness that the mining industry has an important role to play as Mongolia recovers from the economic crisis. The Mongolian mining industry welcomed this decision by the government leaders, as the tax was perceived to be a deterrent to future mine exploration and development by both domestic and foreign investors. Further studies along the Oyu Tolgoi mineralized trend indicate several target areas could be drill tested in order to expand known resources. | [
"Exhibit 99.1 News release via Canada NewsWire, Vancouver 604-669-7764 Attention Business Editors: Entree Gold 2009 Exploration and Corporate Update VANCOUVER, Dec. 21 /CNW/ - Entree Gold Inc. (TSX:ETG; NYSE Amex:EGI; Frankfurt:EKA - \"Entree\" or the \"Company\") reached a number of milestones in 2009. These include the conversion of key concessions at Lookout Hill, Mongolia into long term mining licences as part of the Oyu Tolgoi Investment Agreement; acquisition and consolidation of strategic exploration properties in the Yerington copper camp in Nevada, USA; and continued exploration and testing of porphyry copper targets in New Mexico and Arizona, USA. Exploration and corporate highlights of 2009 include: << - Signing of the long-awaited Oyu Tolgoi Investment Agreement between the Mongolian government and Entree's joint venture partner, Ivanhoe Mines Ltd. (TSX: IVN; NYSE: IVN; NASDAQ: IVN - \"Ivanhoe Mines\") and largest shareholder, Rio Tinto (NYSE: RTP; LSE: RIO.L; ASX: RIO.AX); - The conversion of Entree's Shivee Tolgoi and Javhlant exploration licences into mining licences; - Acquisition and consolidation of a large, underexplored and highly prospective porphyry copper land package in the Yerington district of Nevada; - Entree's agreement with PacMag Metals Ltd. (ASX:PMH - \"PacMag\") to acquire all of their outstanding shares and options, as part of the Yerington area consolidation; - Expansion of porphyry copper-gold mineralization at Lordsburg, New Mexico; - Continued exploration of Togoot coal deposits through additional drilling and the preparation of a Mongolian resource report in advance of a mining licence application; - Drill testing copper-gold targets on the Huaixi project in China.",
">> Mongolia Entree-Ivanhoe Joint Venture The successful conclusion to negotiations that culminated in the signing of the Oyu Tolgoi Investment Agreement in October 2009 provides stability to Entree's Lookout Hill portion of the Oyu Tolgoi project and sets the stage for future project development. Entree's Hugo North Extension and Heruga deposits are key elements for consideration as the Oyu Tolgoi project advances towards production. Ivanhoe Mines is preparing an updated Integrated Development Plan that is expected to provide a projected timeline and work program related to the construction and completion of the massive Oyu Tolgoi mining complex. Abolition of the 68% windfall tax, to take effect in January 2011, was also announced in August 2009. This move by the Mongolian government signaled an awareness that the mining industry has an important role to play as Mongolia recovers from the economic crisis.",
"The Mongolian mining industry welcomed this decision by the government leaders, as the tax was perceived to be a deterrent to future mine exploration and development by both domestic and foreign investors. Further studies along the Oyu Tolgoi mineralized trend indicate several target areas could be drill tested in order to expand known resources."
]
| 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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b'TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION\n\n\n\n\n Evaluation of Planning Efforts for the\n Issuance of Economic Stimulus Payments\n\n\n\n July 31, 2008\n\n Reference Number: 2008-40-149\n\n\n\n\n This report has cleared the Treasury Inspector General for Tax Administration disclosure review process\n and information determined to be restricted from public release has been redacted from this document.\n\n\n\n Phone Number | 202-622-6500\n Email Address | inquiries@tigta.treas.gov\n Web Site | http://www.tigta.gov\n\x0c DEPARTMENT OF THE TREASURY\n WASHINGTON, D.C. 20220\n\n\n\n\nTREASURY INSPECTOR GENERAL\n FOR TAX ADMINISTRATION\n\n\n\n\n July 31, 2008\n\n\n MEMORANDUM FOR DEPUTY COMMISSIONER FOR OPERATIONS SUPPORT\n DEPUTY COMMISSIONER FOR SERVICES AND\n ENFORCEMENT\n\n FROM: Michael R. Phillips\n Deputy Inspector General for Audit\n\n SUBJECT: Final Audit Report \xe2\x80\x93 Evaluation of Planning Efforts for the Issuance of\n Economic Stimulus Payments (Audit # 200840030)\n\n This report presents the results of our review to evaluate the effectiveness of the Internal\n Revenue Service\xe2\x80\x99s (IRS) efforts to plan and implement the 2008 economic stimulus payments.\n The scope of this review was limited to an assessment of the IRS\xe2\x80\x99 efforts to plan for the\n implementation of the stimulus payments and is based on actions taken by the IRS as of\n April 1, 2008. This review is the first in a series of reviews designed to provide Congress with\n an ongoing status of the IRS\xe2\x80\x99 implementation of the economic stimulus payments.\n\n Impact on the Taxpayer\n The most significant part of the Economic Stimulus Act of 20081 is the individual stimulus\n payment. The IRS expects to issue more than $100 billion in stimulus payments to more than\n 130 million households. Recognizing that the stimulus payments would affect millions of\n individuals, the IRS designed a wide-reaching media campaign focused on educating individuals\n on the requirements to receive the stimulus payment along with ways to receive assistance.\n Although the IRS\xe2\x80\x99 planning for the stimulus payments was generally sufficient, we noted areas\n where improvements were needed. Management addressed our concerns in a timely manner,\n which helped to ensure the accuracy and consistency of information provided externally and\n\n\n\n\n 1\n Pub. L. 110-185, 122 Stat. 613.\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\ninternally and reduced the risk of errors when stimulus-only returns2 were processed and\npayments were issued.\n\nSynopsis\nThe Economic Stimulus Act of 2008 was passed to energize the national economy. The stimulus\npayment is a credit for Tax Year 2008. However, the payments are being estimated using\nincome figures reported on Tax Year 2007 tax returns and will be issued in 2008 so individuals\ncan benefit from the payments as soon as possible. Prior\nto Congress\xe2\x80\x99 finalizing of the Economic Stimulus Act of Because Congress expected\n2008, the IRS established an Executive Steering stimulus payments to be issued\nCommittee to coordinate the identification of all affected as soon as possible, the IRS did\nIRS functions, programs, and procedures. The Committee not have the option to delay\n implementation until after the\nalso performed assessments of how the IRS would handle 2008 Filing Season.3\nthe additional work required to implement the stimulus\npayments.3\nThe IRS designed a wide-reaching media campaign to educate individuals about the\nrequirements to receive the stimulus payments along with ways to receive assistance. This\ncampaign included media contacts, public service announcements, information on the IRS web\nsite, issuance of advance notices, and partnering with external Federal Government agencies and\norganizations. The IRS also established tools to provide assistance to the anticipated thousands\nof individuals who would contact the IRS with stimulus payment questions. This assistance had\nto be provided without harming service to taxpayers who were in the process of filing their\nannual income tax returns.\nAs of March 29, 2008, the IRS had received approximately 1.6 million returns (1.4 million paper\nand 215,000 electronic) filed only to claim the stimulus payment.4 The IRS had processed\napproximately 500,000 of these returns through March 29, 2008. However, a backlog of\nstimulus-only returns existed because the IRS had to devote its resources to processing more than\n37 million returns on which refunds were owed to the taxpayers. Refund returns must be\nprocessed within 45 calendar days of receipt to prevent the payment of interest.\nAlthough the IRS\xe2\x80\x99 planning for the stimulus payments was generally sufficient, there were areas\nwhere improvements were needed. Some IRS functions had not developed sufficient Action\nPlans, and there was no consolidated review process in place to ensure that the information and\nguidance being shared internally and externally were consistent and accurate. These issues could\n\n2\n Returns filed only to claim the stimulus payment.\n3\n The period between January and mid-April when most individual income tax returns are filed.\n4\n The 1.6 million returns figure excludes an estimated 800,000 returns filed prior to the IRS separately identifying\nstimulus-only returns.\n 2\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\nhave increased the risk of errors when stimulus-only returns were filed and processed and\npayments were issued. IRS management addressed these concerns as we brought them to their\nattention.\nIn addition, we identified a number of instances where information being distributed externally\nand internally was inconsistent or incomplete. For example, guidance provided on IRS.gov and\nto Taxpayer Assistance Center5 employees on what individuals needed to do to file a\n stimulus-only return was not consistent. We shared our\n Information distributed concerns with the Executive Steering Committee during\n externally and internally was not the course of our audit, and actions were initiated to\n always consistent and complete. address most of the concerns. Although the IRS had\n established an Executive Steering Committee to coordinate\n the planning for the stimulus payments, each IRS function\nwas responsible for creating and disseminating information relative to its area of responsibility.\nMany of the concerns we raised could have been prevented if information had been reviewed by\na central point to ensure its consistency and completeness.\nWe also identified concerns with the IRS\xe2\x80\x99 plans to address stimulus payments on fraudulent Tax\nYear 2007 returns on which a determination of fraud was made after the refunds were issued,\nand to identify potentially fraudulent stimulus-only returns. We are evaluating the Criminal\nInvestigation Division\xe2\x80\x99s efforts to address these concerns.\n\nResponse\nWe made no recommendations in this report. IRS management did respond to provide additional\nperspective on agency efforts. Management\xe2\x80\x99s complete response to the draft report is included\nas Appendix IV.\nCopies of this report are also being sent to the IRS managers affected by the report results.\nPlease contact me at (202) 622-6510 if you have questions or Michael E. McKenney, Assistant\nInspector General for Audit (Wage and Investment Income Programs), at (202) 622-5916.\n\n\n\n\n5\n An IRS office with employees who answer questions, provide assistance, and resolve account-related issues for\ntaxpayers face to face.\n 3\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n\n Table of Contents\n\nBackground ..........................................................................................................Page 1\n\nResults of Review ...............................................................................................Page 4\n A Number of Methods Were Used to Inform and Notify All Eligible\n Individuals and Households About Stimulus Payments ...............................Page 4\n Actions Were Taken to Reduce the Risk of Errors Associated With the\n Filing and Processing of Stimulus-Only Returns and the Issuance of\n Payments .......................................................................................................Page 6\n\nAppendices\n Appendix I \xe2\x80\x93 Detailed Objective, Scope, and Methodology ........................Page 11\n Appendix II \xe2\x80\x93 Major Contributors to This Report ........................................Page 13\n Appendix III \xe2\x80\x93 Report Distribution List .......................................................Page 14\n Appendix IV \xe2\x80\x93 Management\xe2\x80\x99s Response to the Draft Report ......................Page 15\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n\n Abbreviations\n\nIRS Internal Revenue Service\nTY Tax Year\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n\n Background\n\nThe Economic Stimulus Act of 2008,1 signed on February 13, 2008, was passed to energize the\nnational economy. The most significant part of the Act is the individual stimulus payment,\nwhich is a credit for Tax Year (TY) 2008. However, the\npayments are being estimated using information reported The IRS expects to issue more\non TY 2007 tax returns and will be issued in 20082 so than $100 billion in stimulus\nindividuals can benefit from the payments as soon as payments to more than\npossible. Individuals who qualify for a larger payment 130 million households.\nas a result of changes between their TYs 2007 and\n2008 returns will receive the additional payment when\nthey file their TY 2008 returns (generally between January and April 2009). Individuals who\nreceive more than they would have if the payment had been calculated using information from\ntheir TY 2008 returns will not be asked to pay the excess back. The stimulus payment will not\nincrease the amount of tax an individual owes or reduce an individual\xe2\x80\x99s refund for TY 2008.\nTo receive a stimulus payment, individuals must have an income tax liability or at least $3,000 in\nqualifying income. Income from wages, tips, and net self-employment earnings as well as\nnontaxable combat pay and some Social Security, Veterans disability, and Railroad Retirement\nbenefits qualifies as eligible income. Individuals must file a 2007 tax return with a valid Social\nSecurity Number to receive the payment. The Internal Revenue Service (IRS) estimates that an\n additional 20 million individuals who do not normally\n need to file a tax return will file a TY 2007 return to claim\n To qualify for a stimulus the stimulus payment.\n payment, individuals must have\n an income tax liability or $3,000For most individuals, the amount of the stimulus payment\n in qualifying income as well as a received is dependent on their net income tax liability.\n valid Social Security Number.\n Single taxpayers will generally receive the greater of $300\n or their actual tax liability up to $600, and couples will\n generally receive the greater of $600 or their actual tax\nliability up to $1,200. Anyone with qualifying children will also receive an additional $300 per\nchild. A qualifying child is any child who is under the age of 17 as of December 31, 2007, and\nwho can be claimed for purposes of the Child Tax Credit. The stimulus payment also phases out\nfor higher income taxpayers. Figure 1 provides an overview of the provisions of the Economic\nStimulus Act of 2008.\n\n\n\n1\n Pub. L. 110-185, 122 Stat. 613.\n2\n Unless otherwise noted, all dates in this report are calendar year.\n Page 1\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n Figure 1: Provisions of the Economic Stimulus Act of 2008\n\n Provision Details\n General Payment Provision 10 percent of the first $6,000 of taxable income ($12,000 for\n couples), to extent of tax liability; maximum $600/$1,200,\n minimum $300/$600.\n Refundability Provision $300 stimulus payment ($600 for couples) available for\n those without tax liability if earned income plus Social\n Security benefits, some Railroad Retirement benefits, and\n Veterans disability payments are at least $3,000.3\n High-Income Phase-out Provision Payment phased out at 5 percent of Adjusted Gross Income\n greater than $75,000 for single individuals and $150,000 for\n couples. Payment fully phased out at $87,000 for singles\n and $174,000 for couples. The phase-out range increases\n for couples with qualifying children.\n Child Provision $300 per qualifying child if eligible for any other stimulus\n payment. Eligibility criteria are the same as for the Child\n Tax Credit.\n Other Features Disallows the stimulus payment to illegal immigrants by\n requiring a Social Security Number.\n\nSource: Congressional Research Service Report \xe2\x80\x9cTax Provisions of the Economic Stimulus Package\xe2\x80\x9d issued on\nMarch 27, 2008.\n\n Implementing the economic stimulus payment presented two significant challenges for the IRS.\n \xe2\x80\xa2 The process for issuing payments had to be implemented at the same time the IRS was\n processing an estimated 140 million individual income tax returns as part of its annual\n filing season.4\n \xe2\x80\xa2 All affected programs and computer systems had to be modified in a relatively short time\n period to satisfy the intent of Congress to issue the payments to individuals as soon as\n possible.\n This review was performed at the IRS National Headquarters, the Wage and Investment and\n Criminal Investigation Divisions, and the Modernization and Information Technology Services\n organization in Washington, D.C., during the period January through April 2008. We conducted\n this performance audit in accordance with generally accepted government auditing standards.\n Those standards require that we plan and perform the audit to obtain sufficient, appropriate\n\n 3\n Eligible income does not include Supplemental Security Income or pensions including government and military\n retirement pensions (including disability), or any unearned income including withdrawals from Individual\n Retirement Accounts.\n 4\n The period between January and mid-April when most individual income tax returns are filed.\n Page 2\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\nevidence to provide a reasonable basis for our findings and conclusions based on our audit\nobjective. We believe that the evidence obtained provides a reasonable basis for our findings\nand conclusions based on our audit objective. The scope of this review was limited to an\nassessment of the IRS\xe2\x80\x99 efforts to plan for the implementation of the stimulus payments and is\nbased on actions taken by the IRS as of April 1, 2008. We will continue to assess the IRS\xe2\x80\x99\nactions as it progresses with implementation and issuance of the payments. Detailed information\non our audit objective, scope, and methodology is presented in Appendix I. Major contributors\nto the report are listed in Appendix II.\n\n\n\n\n Page 3\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n\n Results of Review\n\nA Number of Methods Were Used to Inform and Notify All Eligible\nIndividuals and Households About Stimulus Payments\nRecognizing that the stimulus payments would be sent to more than 130 million households, the\nIRS designed a wide-reaching media campaign. The focus was to educate individuals on the\nrequirements to receive the stimulus payment along with ways to receive assistance. The\ncampaign included:\n Despite challenges, the IRS\n \xe2\x80\xa2 Initiating 2,000 media contacts, public service\n notified millions of taxpayers\n announcements in both English and Spanish, and about stimulus payment\n extensive use of the IRS\xe2\x80\x99 public web site (IRS.gov) requirements and where to\n as the source for information. The IRS also obtain assistance.\n released four segments on the popular Internet\n web site, YouTube.\n \xe2\x80\xa2 Partnering with the AARP,5 community groups, and other programs that assist retired and\n lower income individuals in an effort to spread the word that these individuals might be\n eligible for a stimulus payment.\n \xe2\x80\xa2 Issuing Economic Stimulus Payment Notices (Notice 1377) to more than 130 million\n taxpayers who filed a TY 2006 income tax return. These Notices were mailed March 4\n through March 21, 2008, and cost an estimated $45 million to print and mail. The Notice\n provided background information regarding the stimulus payments as well as specific\n qualifications and actions individuals would have to take to receive the payment. The\n IRS believed that it would receive significantly fewer calls to its toll-free telephone lines\n as a result of the advance Notice. The advance Notice cost approximately $0.33 per\n Notice compared to $0.71 to answer an automated telephone call and $19.46 to have an\n assistor answer a telephone call.\n \xe2\x80\xa2 Coordinating with the Social Security Administration and the Department of Veterans\n Affairs to identify beneficiaries who might qualify for the stimulus payment but would\n not normally have to file a tax return.\n \xe2\x80\xa2 Developing a new tax package, Information About Economic Stimulus Payments for\n Social Security, Veterans, and Other Beneficiaries (Package 1040A-3), and mailing it to\n more than 20 million individuals beginning on March 15, 2008. This package included a\n\n5\n Formerly the American Association of Retired Persons.\n Page 4\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n copy of the U.S. Individual Income Tax Return (Form 1040A) highlighting the simple,\n specific sections of the Form that can be filled out to qualify for the stimulus payment.\n At $0.32 per package, the IRS estimates that this new tax package cost $6.5 million to\n print and mail. The Social Security Administration has agreed to reimburse the IRS for\n about $6.4 million of the total cost.\nThe IRS also had to determine how to provide assistance to the anticipated thousands of\nindividuals who would contact the IRS with questions about the stimulus payment without\nharming its service to taxpayers who were in the process of filing their annual income tax\nreturns. In an effort to provide timely assistance, the IRS:\n \xe2\x80\xa2 Established a dedicated toll-free telephone number to assist taxpayers with questions\n about the stimulus payment. As of March 29, 2008, the IRS had received 2.3 million\n calls to the automated stimulus payment telephone lines, and IRS assistors had answered\n 572,000 calls about the stimulus payment.\n \xe2\x80\xa2 Added an Economic Stimulus Payment Calculator to IRS.gov enabling individuals to\n calculate their estimated stimulus payment.\n \xe2\x80\xa2 Initiated a \xe2\x80\x9cSuper Saturday.\xe2\x80\x9d The IRS opened 320 Taxpayer Assistance Centers6 in all\n 50 States and the District of Columbia, and IRS partner organizations operated\n approximately 400 locations, to prepare simple Forms 1040A for individuals filing a\n return solely to receive the stimulus payment.\nBecause Congress expected the stimulus payments to be in the hands of individuals as soon as\npossible, the IRS did not have the option to delay implementation until after the 2008 Filing\nSeason, when its resources are already strained. As of March 29, 2008, the IRS had received\napproximately 1.6 million returns (1.4 million paper and 215,000 electronic) filed only for\nclaiming the stimulus payment.7 It had processed approximately 500,000 of these returns\n through March 29, 2008. However, a backlog of\n stimulus-only returns existed because the IRS had to devote its\n The IRS planned to begin resources to processing more than 37 million returns on which\n issuing stimulus payments on refunds were owed to the taxpayers. Refund returns must be\n May 2, 2008.\n processed within 45 calendar days of receipt to prevent the\n payment of interest.\nThe IRS planned to issue the Understanding Your Economic Stimulus Payment Notice\n(Notice 1378) to individuals with the stimulus payment amount and the approximate date the\npayment will be mailed or deposited into their bank accounts beginning on April 30, 2008, and\n\n6\n IRS offices with employees who answer questions, provide assistance, and resolve account-related issues for\ntaxpayers face to face.\n7\n The 1.6 million returns exclude an estimated 800,000 returns filed prior to the IRS separately identifying\nstimulus-only returns.\n Page 5\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\ncontinuing through December 2008 until all stimulus payments have been made. The IRS\nplanned to begin issuing stimulus payments on May 2, 2008.\n\nActions Were Taken to Reduce the Risk of Errors Associated With the\nFiling and Processing of Stimulus-Only Returns and the Issuance of\nPayments\nAlthough the IRS\xe2\x80\x99 planning for the stimulus payments was generally sufficient, we noted areas\nwhere improvements were needed. The IRS addressed these concerns as we brought them to the\nattention of management. Addressing these concerns in a timely manner helped ensure that\naccurate and consistent information was provided to millions of individuals regarding\nrequirements for receiving the payment and helped reduce the risk of errors when stimulus-only\nreturns were processed and payments were issued.\nRecognizing the massive undertaking that would be\nrequired to issue stimulus payments in a timely manner, The Executive Steering\nthe IRS established an Executive Steering Committee Committee took immediate\nprior to Congress\xe2\x80\x99 finalizing of the Economic Stimulus action to address most of the\n concerns raised during the\nAct of 2008. The Executive Steering Committee\n course of our review.\nworked with IRS functions to identify actions that would\nbe needed to ensure smooth implementation of the Act.\nThe Committee also coordinated the identification of all\naffected IRS functions, programs, and procedures and performed an assessment of how the IRS\nwould handle the additional work required to implement the stimulus payment.\nDuring the course of our review, we obtained copies of IRS functions\xe2\x80\x99 Action Plans, draft\nnotices, and procedures; monitored IRS.gov; and reviewed press releases, internal guidance, and\nother information related to the stimulus payment. Our review of this information identified that\nnot all Action Plans were adequately developed, and there was no consolidated review process in\nplace to ensure that the information and guidance being shared internally and externally were\nconsistent and accurate. These concerns, if not addressed, could have increased the risk of errors\nwhen stimulus-only returns were processed and stimulus payments were issued.\n\nSome Action Plans were not sufficiently developed\nAlthough the IRS recognized the need to coordinate planning for the stimulus payments across\nfunctional lines, its planning efforts did not require all major functions that would be affected by\nthe issuance of stimulus payments to develop Action Plans. These Action Plans were critical\nbecause they laid out the specific steps a function would need to take in preparation for the\nissuance of stimulus payments and would be used by the Executive Steering Committee to\nmonitor the IRS\xe2\x80\x99 implementation progress.\n\n\n Page 6\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\nSpecifically, the Compliance, Electronic Tax Administration, and Submission Processing\nfunctions did not initially prepare Action Plans. When asked why these functions did not prepare\nActions Plans, the IRS responded that the Submission Processing function\xe2\x80\x99s assessment of the\nEconomic Stimulus Act prior to its passage indicated that no significant processing changes\nwould be needed. However, once the Act was passed and Social Security and Veterans benefits\nwere added as qualified income, the IRS realized that it would need to do significantly more to\nassist individuals in filing for the stimulus payment. The Submission Processing function\nsubsequently developed an Action Plan in late February 2008. The IRS indicated that\ndevelopment of an Electronic Tax Administration function Action Plan was secondary to the\nneed to immediately coordinate with its electronic filing partners (software developers, etc.).\nThe IRS also stated that it did not believe that it was necessary for the Compliance function to\nhave an Action Plan because it did not intend to change its compliance selection routines. The\nExecutive Steering Committee held regular conference calls with IRS functions to receive\nupdates on actions being taken to diminish the impact of not having Actions Plans developed.\nOf the functions with no Action Plans developed initially, the Submission Processing function\nwill be the most affected by the stimulus payment implementation. It is responsible for\n1) developing the criteria necessary to ensure that only eligible individuals receive a stimulus\npayment and that the payment is computed correctly, 2) ensuring that programming changes are\ncompleted, and 3) processing the estimated 20 million to 25 million additional stimulus-only\nreturns the IRS will receive as a result of the Economic Stimulus Act of 2008. All of the\npreceding had to be performed while simultaneously processing nearly 140 million individual\nincome tax returns as part of the IRS\xe2\x80\x99 annual filing season. The Executive Steering Committee\nrelied on regular conference calls and meetings to receive updates on actions being taken by the\nSubmission Processing function.\nOnce developed, the Submission Processing function Action Plan was vague and lacked the level\nof detail needed to ensure that all critical actions would be taken. This resulted in the\nSubmission Processing function reacting to conditions as they arose rather than proactively\nanticipating and resolving issues. For example, initial procedures for processing stimulus-only\ntax returns filed via paper were unclear to employees on when to reject tax returns that did not\nmeet the stimulus-only return filing requirements. As a result, employees were sending returns\nback to individuals if they were not marked with \xe2\x80\x9cstimulus only\xe2\x80\x9d or other similar wording. The\nIRS did not anticipate that some individuals would not understand or mark their tax returns with\n\xe2\x80\x9cstimulus only\xe2\x80\x9d as instructed even though they were eligible for the stimulus payment. The IRS\ndid not realize the weakness in its procedures until it began processing stimulus-only returns.\nThe procedures were subsequently modified to evaluate the information on the returns in\naddition to looking for the individuals\xe2\x80\x99 notations before rejecting the returns.\nWe also identified weaknesses in the Criminal Investigation Division\xe2\x80\x99s Action Plan.\nSpecifically, the Action Plan did not address the need to develop processes/procedures to:\n\n\n Page 7\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n \xe2\x80\xa2 Stop stimulus payments relating to certain TY 2007 fraudulent returns for which a\n determination of fraud was made after the refunds were issued.\n \xe2\x80\xa2 Identify potential fraud relating to those individuals who are filing stimulus-only tax\n returns.\nWe are evaluating the Criminal Investigation Division\xe2\x80\x99s efforts to address these concerns.\n\nThere were some inaccuracies and inconsistencies in external and internal\nguidance caused by the lack of a coordinated review process\nSome information being distributed externally and internally was inconsistent or incomplete.\nOnce the issues were raised to the Executive Steering Committee, actions were initiated to\naddress most of the concerns. For example:\nInconsistent Guidance\n \xe2\x80\xa2 Guidance provided on IRS.gov and to Taxpayer Assistance Center employees was not\n consistent. Information on the IRS web site indicated that taxpayers who were filing a\n tax return for the sole purpose of claiming the stimulus payment would only have to fill\n out a few specific items on the Form 1040A. However, instructions provided to the\n Taxpayer Assistance Center employees required the completion of additional areas of the\n Form 1040A. The IRS corrected the guidance provided to the Taxpayer Assistance\n Centers.\n \xe2\x80\xa2 Guidance was inconsistent between instructions in the tax package 1040A-3 and IRS\n procedures for processing stimulus-only returns. The package 1040A-3 instructs\n individuals filing a stimulus-only tax return to put their combined earned income on\n Line 7 of the Form 1040A and attach supporting Wage and Tax Statements (Form W-2).\n These instructions are silent on what the individual should do if no Form W-2 is available\n except that self-employment income can be reported on this Line if less than $400.\n However, the IRS processing procedures tell employees to send returns back to the\n individuals if this income is not supported or explained. This can result in individuals not\n receiving a stimulus payment they are entitled to because not all reported income is\n supported by proper documentation. The IRS elected not to change its processing\n procedures.\nIncomplete Guidance\n \xe2\x80\xa2 Guidance did not inform individuals that they should not reduce their TY 2007 tax due by\n the stimulus payment amount. The IRS subsequently updated IRS.gov to advise\n taxpayers not to do this.\n \xe2\x80\xa2 Guidance did not contain all eligibility information. The IRS did not expand on the\n eligibility information because its Communications function was concerned that\n\n Page 8\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n taxpayers would be confused if the IRS tried to explain all the eligibility requirements. In\n addition, news articles have misstated the basic eligibility requirements, possibly as a\n result of the incomplete information available from the IRS.\n \xe2\x80\xa2 Guidance did not inform individuals that anyone not receiving a TY 2007 refund would\n get their stimulus payment via paper check. Subsequent to our raising this concern, the\n IRS issued guidance clarifying that individuals not receiving a TY 2007 refund could\n receive their stimulus payment by direct deposit if they included their bank account\n information on their tax return.\n \xe2\x80\xa2 Guidance was unclear about when individuals would receive their stimulus payment.\n Only tax returns processed by the IRS before April 15, 2008, will have stimulus\n payments issued according to the IRS\xe2\x80\x99 published payment schedule. However,\n information released by the IRS implied all tax returns filed by April 15 would have\n payments issued per the schedule. The IRS subsequently released detailed information\n encouraging individuals to file early to ensure that their returns were processed by\n April 15 and clarifying that only tax returns received and processed before that date\n would have stimulus payments issued per the published payment schedule.\n \xe2\x80\xa2 Guidance was not initially provided to Volunteer Income Tax Assistance and Tax\n Counseling for the Elderly sites8 on how to serve individuals who ask for help with\n preparing their stimulus-only tax returns. At the time we raised this concern, the IRS was\n in the process of providing guidance to the Volunteer Income Tax Assistance and Tax\n Counseling for the Elderly sites.\nIn addition, we reviewed the draft tax package 1040A-3 prior to issuance and provided\ncomments to the IRS for its use in finalizing the package and preparing it for mailing. The IRS\nincorporated all of our suggestions, except the one relating to filing status, into its efforts to\nfinalize the tax package and mail it to approximately 20 million individuals beginning on\nMarch 15, 2008. Items we noted included that:\n \xe2\x80\xa2 The instructions told individuals to file their returns by December 1, 2008. Our concern\n was that this could confuse individuals because the normal and extended individual tax\n return filing dates are April 15 and October 15, respectively. The IRS revised the\n instructions to encourage individuals to file as soon as possible but advising that they\n must file by October 15, 2008.\n \xe2\x80\xa2 The instructions did not provide specific information on where to mail a stimulus-only\n tax return.\n \xe2\x80\xa2 The instructions were confusing on how to file for each filing status (e.g., single, married\n filing jointly).\n\n8\n Free income tax assistance services supported by the IRS.\n Page 9\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n \xe2\x80\xa2 The instructions did not contain guidance on how to properly sign the tax return when the\n individual filing the return was represented by a guardian or other legal representative\n (e.g., individuals in nursing facilities who might be incapacitated).\nAlthough the IRS had established an Executive Steering Committee to coordinate the planning\nfor the stimulus payment, each IRS function was responsible for creating and disseminating\ninformation relative to its area of responsibility. Many of the concerns we raised could have\nbeen prevented if information had been reviewed at a central point to ensure consistency and\ncompleteness.\nWe will continue to evaluate the IRS\xe2\x80\x99 implementation of the stimulus payment as it moves\nforward. We have begun assessing whether stimulus payments are calculated correctly and the\nIRS\xe2\x80\x99 process to prevent individuals that are not entitled to receive a stimulus payment from\nreceiving it.\n\n\n\n\n Page 10\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n Appendix I\n\n Detailed Objective, Scope, and Methodology\n\nThe overall objective of this review was to evaluate the effectiveness of the IRS\xe2\x80\x99 efforts to plan\nand implement the 20081 economic stimulus payments. The scope of this review was limited to\nan assessment of the IRS\xe2\x80\x99 efforts to plan for the implementation of the stimulus payments and is\nbased on actions taken by the IRS as of April 1, 2008. To accomplish our objective, we:\nI. Analyzed the Economic Stimulus Act of 20082 to determine the eligibility requirements,\n how the stimulus payments are computed, and the instructions to the IRS on distributing\n the payments.\nII. Evaluated the effectiveness of the IRS\xe2\x80\x99 overall planning process for issuing the economic\n stimulus payments. We met with the Executive Steering Committee and IRS executives\n to discuss how the IRS planned to implement the economic stimulus payments and\n obtained copies of functional Action Plans and meeting notes related to those Plans as\n well as notes of Executive Steering Committee meetings.\nIII. Evaluated the adequacy of the IRS\xe2\x80\x99 plans for educating and assisting individuals in\n ensuring that they receive the proper economic stimulus payment, including efforts to\n assist non-English-speaking individuals and those who would not otherwise be required\n to file an individual income tax return.\n A. Evaluated the IRS\xe2\x80\x99 plans to inform the public and the tax preparer community about\n who is eligible for a stimulus payment and how to claim the payment, including how\n to obtain assistance from the IRS. We assessed the clarity, accuracy, completeness,\n and cost of the Economic Stimulus Payment Notice (Notice 1377) and the tax\n package Information About Economic Stimulus Payments for Social Security,\n Veterans, and Other Beneficiaries (Package 1040A-3). We also evaluated the\n accuracy, clarity, completeness, and timeliness of the information made available on\n IRS.gov.\n B. Assessed the effectiveness of the IRS\xe2\x80\x99 efforts to ensure that its Taxpayer Assistance\n Centers3 and Volunteer Income Tax Assistance and Tax Counseling for the Elderly\n sites4 were able to properly educate and assist individuals on the stimulus payment.\n\n\n1\n Unless otherwise noted, all dates are calendar year.\n2\n Pub. L. 110-185, 122 Stat. 613.\n3\n IRS offices with employees who answer questions, provide assistance, and resolve account-related issues for\ntaxpayers face to face.\n4\n Free income tax assistance services supported by the IRS.\n Page 11\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n We also determined if the IRS increased its promotion of electronic filing as a\n preferred way to file for the stimulus payment.\nIV. Evaluated the effectiveness of the IRS\xe2\x80\x99 Action Plans for determining the stimulus\n payment eligibility and the calculation of the payment amount to determine if the Plans\n were sufficient to ensure that stimulus payments were properly computed and issued to\n eligible individuals.\n A. Discussed the process used to develop the computer programs necessary to identify\n eligible individuals, calculate the payment amount, and issue the stimulus payment in\n a timely manner. We also reviewed applicable computer programming\n documentation to determine if planned programming would accurately identify\n eligible individuals and accurately compute the stimulus payment.\n B. Determined the steps the IRS planned to take to ensure that stimulus payments are\n paid as quickly as possible within the guidelines of the Economic Stimulus Act of\n 2008. This included evaluating the IRS\xe2\x80\x99 plans for issuing stimulus payments through\n direct deposit and assessing the effect that delays in processing certain individual\n income tax returns would have on the stimulus payments.\n C. Determined what additional controls the IRS planned to use to ensure that fraudulent\n or otherwise erroneous attempts to receive a stimulus payment are identified. We\n also evaluated planned controls to determine if they were sufficient to minimize the\n risk of fraud or significant error.\nV. Identified the processes the IRS planned to use to track the stimulus payments, including\n implementation costs.\n\n\n\n\n Page 12\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n Appendix II\n\n Major Contributors to This Report\n\nMichael E. McKenney, Assistant Inspector General for Audit (Wage and Investment Income\nPrograms)\nRussell Martin, Director\nDeann Baiza, Audit Manager\nJohn Hawkins, Lead Auditor\nSharla Robinson, Lead Auditor\nKathleen Hughes, Senior Auditor\nSteven Stephens, Senior Auditor\nJennie Choo, Auditor\n\n\n\n\n Page 13\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n Appendix III\n\n Report Distribution List\n\nCommissioner C\nOffice of the Commissioner \xe2\x80\x93 Attn: Chief of Staff C\nCommissioner, Wage and Investment Division SE:W\nChief Information Officer OS:CIO\nChief, Criminal Investigation Division SE:CI\nDirector, Communications and Liaison, Wage and Investment Division SE:W:C\nDirector, Compliance, Wage and Investment Division SE:W:CP\nDirector, Customer Account Services, Wage and Investment Division SE:W:CAS\nDirector, Customer Assistance, Relationships, and Education, Wage and Investment Division\nSE:W:CAR\nDirector, Electronic Tax Administration and Refundable Credits, Wage and Investment Division\nSE:W:ETARC\nDirector, Strategy and Finance, Wage and Investment Division SE:W:S\nChief Counsel CC\nNational Taxpayer Advocate TA\nDirector, Office of Legislative Affairs CL:LA\nDirector, Office of Program Evaluation ad Risk Analysis RAS:O\nOffice of Internal Control OS:CFO:CPIC:IC\nAudit Liaison: Senior Operations Advisor, Wage and Investment Division SE:W:S\n\n\n\n\n Page 14\n\x0c Evaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n Appendix IV\n\nManagement\xe2\x80\x99s Response to the Draft Report\n\n\n\n\n Page 15\n\x0cEvaluation of Planning Efforts for the Issuance of Economic\n Stimulus Payments\n\n\n\n\n Page 16\n\x0c' | 2008 | [
"b'TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION\\n\\n\\n\\n\\n Evaluation of Planning Efforts for the\\n Issuance of Economic Stimulus Payments\\n\\n\\n\\n July 31, 2008\\n\\n Reference Number: 2008-40-149\\n\\n\\n\\n\\n This report has cleared the Treasury Inspector General for Tax Administration disclosure review process\\n and information determined to be restricted from public release has been redacted from this document.\\n\\n\\n\\n Phone Number | 202-622-6500\\n Email Address | inquiries@tigta.treas.gov\\n Web Site | http://www.tigta.gov\\n\\x0c DEPARTMENT OF THE TREASURY\\n WASHINGTON, D.C. 20220\\n\\n\\n\\n\\nTREASURY INSPECTOR GENERAL\\n FOR TAX ADMINISTRATION\\n\\n\\n\\n\\n July 31, 2008\\n\\n\\n MEMORANDUM FOR DEPUTY COMMISSIONER FOR OPERATIONS SUPPORT\\n DEPUTY COMMISSIONER FOR SERVICES AND\\n ENFORCEMENT\\n\\n FROM: Michael R. Phillips\\n Deputy Inspector General for Audit\\n\\n SUBJECT: Final Audit Report \\xe2\\x80\\x93 Evaluation of Planning Efforts for the Issuance of\\n Economic Stimulus Payments (Audit # 200840030)\\n\\n This report presents the results of our review to evaluate the effectiveness of the Internal\\n Revenue Service\\xe2\\x80\\x99s (IRS) efforts to plan and implement the 2008 economic stimulus payments.\\n The scope of this review was limited to an assessment of the IRS\\xe2\\x80\\x99 efforts to plan for the\\n implementation of the stimulus payments and is based on actions taken by the IRS as of\\n April 1, 2008.",
"This review is the first in a series of reviews designed to provide Congress with\\n an ongoing status of the IRS\\xe2\\x80\\x99 implementation of the economic stimulus payments.\\n\\n Impact on the Taxpayer\\n The most significant part of the Economic Stimulus Act of 20081 is the individual stimulus\\n payment. The IRS expects to issue more than $100 billion in stimulus payments to more than\\n 130 million households. Recognizing that the stimulus payments would affect millions of\\n individuals, the IRS designed a wide-reaching media campaign focused on educating individuals\\n on the requirements to receive the stimulus payment along with ways to receive assistance.\\n Although the IRS\\xe2\\x80\\x99 planning for the stimulus payments was generally sufficient, we noted areas\\n where improvements were needed. Management addressed our concerns in a timely manner,\\n which helped to ensure the accuracy and consistency of information provided externally and\\n\\n\\n\\n\\n 1\\n Pub.",
"L. 110-185, 122 Stat. 613.\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\ninternally and reduced the risk of errors when stimulus-only returns2 were processed and\\npayments were issued.\\n\\nSynopsis\\nThe Economic Stimulus Act of 2008 was passed to energize the national economy. The stimulus\\npayment is a credit for Tax Year 2008. However, the payments are being estimated using\\nincome figures reported on Tax Year 2007 tax returns and will be issued in 2008 so individuals\\ncan benefit from the payments as soon as possible. Prior\\nto Congress\\xe2\\x80\\x99 finalizing of the Economic Stimulus Act of Because Congress expected\\n2008, the IRS established an Executive Steering stimulus payments to be issued\\nCommittee to coordinate the identification of all affected as soon as possible, the IRS did\\nIRS functions, programs, and procedures. The Committee not have the option to delay\\n implementation until after the\\nalso performed assessments of how the IRS would handle 2008 Filing Season.3\\nthe additional work required to implement the stimulus\\npayments.3\\nThe IRS designed a wide-reaching media campaign to educate individuals about the\\nrequirements to receive the stimulus payments along with ways to receive assistance.",
"This\\ncampaign included media contacts, public service announcements, information on the IRS web\\nsite, issuance of advance notices, and partnering with external Federal Government agencies and\\norganizations. The IRS also established tools to provide assistance to the anticipated thousands\\nof individuals who would contact the IRS with stimulus payment questions. This assistance had\\nto be provided without harming service to taxpayers who were in the process of filing their\\nannual income tax returns.\\nAs of March 29, 2008, the IRS had received approximately 1.6 million returns (1.4 million paper\\nand 215,000 electronic) filed only to claim the stimulus payment.4 The IRS had processed\\napproximately 500,000 of these returns through March 29, 2008.",
"However, a backlog of\\nstimulus-only returns existed because the IRS had to devote its resources to processing more than\\n37 million returns on which refunds were owed to the taxpayers. Refund returns must be\\nprocessed within 45 calendar days of receipt to prevent the payment of interest.\\nAlthough the IRS\\xe2\\x80\\x99 planning for the stimulus payments was generally sufficient, there were areas\\nwhere improvements were needed. Some IRS functions had not developed sufficient Action\\nPlans, and there was no consolidated review process in place to ensure that the information and\\nguidance being shared internally and externally were consistent and accurate.",
"These issues could\\n\\n2\\n Returns filed only to claim the stimulus payment.\\n3\\n The period between January and mid-April when most individual income tax returns are filed.\\n4\\n The 1.6 million returns figure excludes an estimated 800,000 returns filed prior to the IRS separately identifying\\nstimulus-only returns.\\n 2\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\nhave increased the risk of errors when stimulus-only returns were filed and processed and\\npayments were issued. IRS management addressed these concerns as we brought them to their\\nattention.\\nIn addition, we identified a number of instances where information being distributed externally\\nand internally was inconsistent or incomplete. For example, guidance provided on IRS.gov and\\nto Taxpayer Assistance Center5 employees on what individuals needed to do to file a\\n stimulus-only return was not consistent.",
"We shared our\\n Information distributed concerns with the Executive Steering Committee during\\n externally and internally was not the course of our audit, and actions were initiated to\\n always consistent and complete. address most of the concerns. Although the IRS had\\n established an Executive Steering Committee to coordinate\\n the planning for the stimulus payments, each IRS function\\nwas responsible for creating and disseminating information relative to its area of responsibility.\\nMany of the concerns we raised could have been prevented if information had been reviewed by\\na central point to ensure its consistency and completeness.\\nWe also identified concerns with the IRS\\xe2\\x80\\x99 plans to address stimulus payments on fraudulent Tax\\nYear 2007 returns on which a determination of fraud was made after the refunds were issued,\\nand to identify potentially fraudulent stimulus-only returns. We are evaluating the Criminal\\nInvestigation Division\\xe2\\x80\\x99s efforts to address these concerns.\\n\\nResponse\\nWe made no recommendations in this report. IRS management did respond to provide additional\\nperspective on agency efforts. Management\\xe2\\x80\\x99s complete response to the draft report is included\\nas Appendix IV.\\nCopies of this report are also being sent to the IRS managers affected by the report results.\\nPlease contact me at (202) 622-6510 if you have questions or Michael E. McKenney, Assistant\\nInspector General for Audit (Wage and Investment Income Programs), at (202) 622-5916.\\n\\n\\n\\n\\n5\\n An IRS office with employees who answer questions, provide assistance, and resolve account-related issues for\\ntaxpayers face to face.\\n 3\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n\\n Table of Contents\\n\\nBackground ..........................................................................................................Page 1\\n\\nResults of Review ...............................................................................................Page 4\\n A Number of Methods Were Used to Inform and Notify All Eligible\\n Individuals and Households About Stimulus Payments ...............................Page 4\\n Actions Were Taken to Reduce the Risk of Errors Associated With the\\n Filing and Processing of Stimulus-Only Returns and the Issuance of\\n Payments .......................................................................................................Page 6\\n\\nAppendices\\n Appendix I \\xe2\\x80\\x93 Detailed Objective, Scope, and Methodology ........................Page 11\\n Appendix II \\xe2\\x80\\x93 Major Contributors to This Report ........................................Page 13\\n Appendix III \\xe2\\x80\\x93 Report Distribution List .......................................................Page 14\\n Appendix IV \\xe2\\x80\\x93 Management\\xe2\\x80\\x99s Response to the Draft Report ......................Page 15\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n\\n Abbreviations\\n\\nIRS Internal Revenue Service\\nTY Tax Year\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n\\n Background\\n\\nThe Economic Stimulus Act of 2008,1 signed on February 13, 2008, was passed to energize the\\nnational economy.",
"The most significant part of the Act is the individual stimulus payment,\\nwhich is a credit for Tax Year (TY) 2008. However, the\\npayments are being estimated using information reported The IRS expects to issue more\\non TY 2007 tax returns and will be issued in 20082 so than $100 billion in stimulus\\nindividuals can benefit from the payments as soon as payments to more than\\npossible. Individuals who qualify for a larger payment 130 million households.\\nas a result of changes between their TYs 2007 and\\n2008 returns will receive the additional payment when\\nthey file their TY 2008 returns (generally between January and April 2009). Individuals who\\nreceive more than they would have if the payment had been calculated using information from\\ntheir TY 2008 returns will not be asked to pay the excess back. The stimulus payment will not\\nincrease the amount of tax an individual owes or reduce an individual\\xe2\\x80\\x99s refund for TY 2008.\\nTo receive a stimulus payment, individuals must have an income tax liability or at least $3,000 in\\nqualifying income.",
"Income from wages, tips, and net self-employment earnings as well as\\nnontaxable combat pay and some Social Security, Veterans disability, and Railroad Retirement\\nbenefits qualifies as eligible income. Individuals must file a 2007 tax return with a valid Social\\nSecurity Number to receive the payment. The Internal Revenue Service (IRS) estimates that an\\n additional 20 million individuals who do not normally\\n need to file a tax return will file a TY 2007 return to claim\\n To qualify for a stimulus the stimulus payment.\\n payment, individuals must have\\n an income tax liability or $3,000For most individuals, the amount of the stimulus payment\\n in qualifying income as well as a received is dependent on their net income tax liability.\\n valid Social Security Number.\\n Single taxpayers will generally receive the greater of $300\\n or their actual tax liability up to $600, and couples will\\n generally receive the greater of $600 or their actual tax\\nliability up to $1,200.",
"Anyone with qualifying children will also receive an additional $300 per\\nchild. A qualifying child is any child who is under the age of 17 as of December 31, 2007, and\\nwho can be claimed for purposes of the Child Tax Credit. The stimulus payment also phases out\\nfor higher income taxpayers. Figure 1 provides an overview of the provisions of the Economic\\nStimulus Act of 2008.\\n\\n\\n\\n1\\n Pub. L. 110-185, 122 Stat. 613.\\n2\\n Unless otherwise noted, all dates in this report are calendar year.\\n Page 1\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n Figure 1: Provisions of the Economic Stimulus Act of 2008\\n\\n Provision Details\\n General Payment Provision 10 percent of the first $6,000 of taxable income ($12,000 for\\n couples), to extent of tax liability; maximum $600/$1,200,\\n minimum $300/$600.\\n Refundability Provision $300 stimulus payment ($600 for couples) available for\\n those without tax liability if earned income plus Social\\n Security benefits, some Railroad Retirement benefits, and\\n Veterans disability payments are at least $3,000.3\\n High-Income Phase-out Provision Payment phased out at 5 percent of Adjusted Gross Income\\n greater than $75,000 for single individuals and $150,000 for\\n couples.",
"Payment fully phased out at $87,000 for singles\\n and $174,000 for couples. The phase-out range increases\\n for couples with qualifying children.\\n Child Provision $300 per qualifying child if eligible for any other stimulus\\n payment. Eligibility criteria are the same as for the Child\\n Tax Credit.\\n Other Features Disallows the stimulus payment to illegal immigrants by\\n requiring a Social Security Number.\\n\\nSource: Congressional Research Service Report \\xe2\\x80\\x9cTax Provisions of the Economic Stimulus Package\\xe2\\x80\\x9d issued on\\nMarch 27, 2008.\\n\\n Implementing the economic stimulus payment presented two significant challenges for the IRS.\\n \\xe2\\x80\\xa2 The process for issuing payments had to be implemented at the same time the IRS was\\n processing an estimated 140 million individual income tax returns as part of its annual\\n filing season.4\\n \\xe2\\x80\\xa2 All affected programs and computer systems had to be modified in a relatively short time\\n period to satisfy the intent of Congress to issue the payments to individuals as soon as\\n possible.\\n This review was performed at the IRS National Headquarters, the Wage and Investment and\\n Criminal Investigation Divisions, and the Modernization and Information Technology Services\\n organization in Washington, D.C., during the period January through April 2008.",
"We conducted\\n this performance audit in accordance with generally accepted government auditing standards.\\n Those standards require that we plan and perform the audit to obtain sufficient, appropriate\\n\\n 3\\n Eligible income does not include Supplemental Security Income or pensions including government and military\\n retirement pensions (including disability), or any unearned income including withdrawals from Individual\\n Retirement Accounts.\\n 4\\n The period between January and mid-April when most individual income tax returns are filed.\\n Page 2\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\nevidence to provide a reasonable basis for our findings and conclusions based on our audit\\nobjective. We believe that the evidence obtained provides a reasonable basis for our findings\\nand conclusions based on our audit objective. The scope of this review was limited to an\\nassessment of the IRS\\xe2\\x80\\x99 efforts to plan for the implementation of the stimulus payments and is\\nbased on actions taken by the IRS as of April 1, 2008. We will continue to assess the IRS\\xe2\\x80\\x99\\nactions as it progresses with implementation and issuance of the payments.",
"Detailed information\\non our audit objective, scope, and methodology is presented in Appendix I. Major contributors\\nto the report are listed in Appendix II.\\n\\n\\n\\n\\n Page 3\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n\\n Results of Review\\n\\nA Number of Methods Were Used to Inform and Notify All Eligible\\nIndividuals and Households About Stimulus Payments\\nRecognizing that the stimulus payments would be sent to more than 130 million households, the\\nIRS designed a wide-reaching media campaign. The focus was to educate individuals on the\\nrequirements to receive the stimulus payment along with ways to receive assistance. The\\ncampaign included:\\n Despite challenges, the IRS\\n \\xe2\\x80\\xa2 Initiating 2,000 media contacts, public service\\n notified millions of taxpayers\\n announcements in both English and Spanish, and about stimulus payment\\n extensive use of the IRS\\xe2\\x80\\x99 public web site (IRS.gov) requirements and where to\\n as the source for information. The IRS also obtain assistance.\\n released four segments on the popular Internet\\n web site, YouTube.\\n \\xe2\\x80\\xa2 Partnering with the AARP,5 community groups, and other programs that assist retired and\\n lower income individuals in an effort to spread the word that these individuals might be\\n eligible for a stimulus payment.\\n \\xe2\\x80\\xa2 Issuing Economic Stimulus Payment Notices (Notice 1377) to more than 130 million\\n taxpayers who filed a TY 2006 income tax return.",
"These Notices were mailed March 4\\n through March 21, 2008, and cost an estimated $45 million to print and mail. The Notice\\n provided background information regarding the stimulus payments as well as specific\\n qualifications and actions individuals would have to take to receive the payment. The\\n IRS believed that it would receive significantly fewer calls to its toll-free telephone lines\\n as a result of the advance Notice. The advance Notice cost approximately $0.33 per\\n Notice compared to $0.71 to answer an automated telephone call and $19.46 to have an\\n assistor answer a telephone call.\\n \\xe2\\x80\\xa2 Coordinating with the Social Security Administration and the Department of Veterans\\n Affairs to identify beneficiaries who might qualify for the stimulus payment but would\\n not normally have to file a tax return.\\n \\xe2\\x80\\xa2 Developing a new tax package, Information About Economic Stimulus Payments for\\n Social Security, Veterans, and Other Beneficiaries (Package 1040A-3), and mailing it to\\n more than 20 million individuals beginning on March 15, 2008. This package included a\\n\\n5\\n Formerly the American Association of Retired Persons.\\n Page 4\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n copy of the U.S.",
"Individual Income Tax Return (Form 1040A) highlighting the simple,\\n specific sections of the Form that can be filled out to qualify for the stimulus payment.\\n At $0.32 per package, the IRS estimates that this new tax package cost $6.5 million to\\n print and mail. The Social Security Administration has agreed to reimburse the IRS for\\n about $6.4 million of the total cost.\\nThe IRS also had to determine how to provide assistance to the anticipated thousands of\\nindividuals who would contact the IRS with questions about the stimulus payment without\\nharming its service to taxpayers who were in the process of filing their annual income tax\\nreturns. In an effort to provide timely assistance, the IRS:\\n \\xe2\\x80\\xa2 Established a dedicated toll-free telephone number to assist taxpayers with questions\\n about the stimulus payment.",
"As of March 29, 2008, the IRS had received 2.3 million\\n calls to the automated stimulus payment telephone lines, and IRS assistors had answered\\n 572,000 calls about the stimulus payment.\\n \\xe2\\x80\\xa2 Added an Economic Stimulus Payment Calculator to IRS.gov enabling individuals to\\n calculate their estimated stimulus payment.\\n \\xe2\\x80\\xa2 Initiated a \\xe2\\x80\\x9cSuper Saturday.\\xe2\\x80\\x9d The IRS opened 320 Taxpayer Assistance Centers6 in all\\n 50 States and the District of Columbia, and IRS partner organizations operated\\n approximately 400 locations, to prepare simple Forms 1040A for individuals filing a\\n return solely to receive the stimulus payment.\\nBecause Congress expected the stimulus payments to be in the hands of individuals as soon as\\npossible, the IRS did not have the option to delay implementation until after the 2008 Filing\\nSeason, when its resources are already strained. As of March 29, 2008, the IRS had received\\napproximately 1.6 million returns (1.4 million paper and 215,000 electronic) filed only for\\nclaiming the stimulus payment.7 It had processed approximately 500,000 of these returns\\n through March 29, 2008. However, a backlog of\\n stimulus-only returns existed because the IRS had to devote its\\n The IRS planned to begin resources to processing more than 37 million returns on which\\n issuing stimulus payments on refunds were owed to the taxpayers. Refund returns must be\\n May 2, 2008.\\n processed within 45 calendar days of receipt to prevent the\\n payment of interest.\\nThe IRS planned to issue the Understanding Your Economic Stimulus Payment Notice\\n(Notice 1378) to individuals with the stimulus payment amount and the approximate date the\\npayment will be mailed or deposited into their bank accounts beginning on April 30, 2008, and\\n\\n6\\n IRS offices with employees who answer questions, provide assistance, and resolve account-related issues for\\ntaxpayers face to face.\\n7\\n The 1.6 million returns exclude an estimated 800,000 returns filed prior to the IRS separately identifying\\nstimulus-only returns.\\n Page 5\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\ncontinuing through December 2008 until all stimulus payments have been made.",
"The IRS\\nplanned to begin issuing stimulus payments on May 2, 2008.\\n\\nActions Were Taken to Reduce the Risk of Errors Associated With the\\nFiling and Processing of Stimulus-Only Returns and the Issuance of\\nPayments\\nAlthough the IRS\\xe2\\x80\\x99 planning for the stimulus payments was generally sufficient, we noted areas\\nwhere improvements were needed. The IRS addressed these concerns as we brought them to the\\nattention of management. Addressing these concerns in a timely manner helped ensure that\\naccurate and consistent information was provided to millions of individuals regarding\\nrequirements for receiving the payment and helped reduce the risk of errors when stimulus-only\\nreturns were processed and payments were issued.\\nRecognizing the massive undertaking that would be\\nrequired to issue stimulus payments in a timely manner, The Executive Steering\\nthe IRS established an Executive Steering Committee Committee took immediate\\nprior to Congress\\xe2\\x80\\x99 finalizing of the Economic Stimulus action to address most of the\\n concerns raised during the\\nAct of 2008. The Executive Steering Committee\\n course of our review.\\nworked with IRS functions to identify actions that would\\nbe needed to ensure smooth implementation of the Act.\\nThe Committee also coordinated the identification of all\\naffected IRS functions, programs, and procedures and performed an assessment of how the IRS\\nwould handle the additional work required to implement the stimulus payment.\\nDuring the course of our review, we obtained copies of IRS functions\\xe2\\x80\\x99 Action Plans, draft\\nnotices, and procedures; monitored IRS.gov; and reviewed press releases, internal guidance, and\\nother information related to the stimulus payment.",
"Our review of this information identified that\\nnot all Action Plans were adequately developed, and there was no consolidated review process in\\nplace to ensure that the information and guidance being shared internally and externally were\\nconsistent and accurate. These concerns, if not addressed, could have increased the risk of errors\\nwhen stimulus-only returns were processed and stimulus payments were issued.\\n\\nSome Action Plans were not sufficiently developed\\nAlthough the IRS recognized the need to coordinate planning for the stimulus payments across\\nfunctional lines, its planning efforts did not require all major functions that would be affected by\\nthe issuance of stimulus payments to develop Action Plans. These Action Plans were critical\\nbecause they laid out the specific steps a function would need to take in preparation for the\\nissuance of stimulus payments and would be used by the Executive Steering Committee to\\nmonitor the IRS\\xe2\\x80\\x99 implementation progress.\\n\\n\\n Page 6\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\nSpecifically, the Compliance, Electronic Tax Administration, and Submission Processing\\nfunctions did not initially prepare Action Plans.",
"When asked why these functions did not prepare\\nActions Plans, the IRS responded that the Submission Processing function\\xe2\\x80\\x99s assessment of the\\nEconomic Stimulus Act prior to its passage indicated that no significant processing changes\\nwould be needed. However, once the Act was passed and Social Security and Veterans benefits\\nwere added as qualified income, the IRS realized that it would need to do significantly more to\\nassist individuals in filing for the stimulus payment. The Submission Processing function\\nsubsequently developed an Action Plan in late February 2008. The IRS indicated that\\ndevelopment of an Electronic Tax Administration function Action Plan was secondary to the\\nneed to immediately coordinate with its electronic filing partners (software developers, etc. ).\\nThe IRS also stated that it did not believe that it was necessary for the Compliance function to\\nhave an Action Plan because it did not intend to change its compliance selection routines. The\\nExecutive Steering Committee held regular conference calls with IRS functions to receive\\nupdates on actions being taken to diminish the impact of not having Actions Plans developed.\\nOf the functions with no Action Plans developed initially, the Submission Processing function\\nwill be the most affected by the stimulus payment implementation. It is responsible for\\n1) developing the criteria necessary to ensure that only eligible individuals receive a stimulus\\npayment and that the payment is computed correctly, 2) ensuring that programming changes are\\ncompleted, and 3) processing the estimated 20 million to 25 million additional stimulus-only\\nreturns the IRS will receive as a result of the Economic Stimulus Act of 2008.",
"All of the\\npreceding had to be performed while simultaneously processing nearly 140 million individual\\nincome tax returns as part of the IRS\\xe2\\x80\\x99 annual filing season. The Executive Steering Committee\\nrelied on regular conference calls and meetings to receive updates on actions being taken by the\\nSubmission Processing function.\\nOnce developed, the Submission Processing function Action Plan was vague and lacked the level\\nof detail needed to ensure that all critical actions would be taken.",
"This resulted in the\\nSubmission Processing function reacting to conditions as they arose rather than proactively\\nanticipating and resolving issues. For example, initial procedures for processing stimulus-only\\ntax returns filed via paper were unclear to employees on when to reject tax returns that did not\\nmeet the stimulus-only return filing requirements. As a result, employees were sending returns\\nback to individuals if they were not marked with \\xe2\\x80\\x9cstimulus only\\xe2\\x80\\x9d or other similar wording. The\\nIRS did not anticipate that some individuals would not understand or mark their tax returns with\\n\\xe2\\x80\\x9cstimulus only\\xe2\\x80\\x9d as instructed even though they were eligible for the stimulus payment.",
"The IRS\\ndid not realize the weakness in its procedures until it began processing stimulus-only returns.\\nThe procedures were subsequently modified to evaluate the information on the returns in\\naddition to looking for the individuals\\xe2\\x80\\x99 notations before rejecting the returns.\\nWe also identified weaknesses in the Criminal Investigation Division\\xe2\\x80\\x99s Action Plan.\\nSpecifically, the Action Plan did not address the need to develop processes/procedures to:\\n\\n\\n Page 7\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n \\xe2\\x80\\xa2 Stop stimulus payments relating to certain TY 2007 fraudulent returns for which a\\n determination of fraud was made after the refunds were issued.\\n \\xe2\\x80\\xa2 Identify potential fraud relating to those individuals who are filing stimulus-only tax\\n returns.\\nWe are evaluating the Criminal Investigation Division\\xe2\\x80\\x99s efforts to address these concerns.\\n\\nThere were some inaccuracies and inconsistencies in external and internal\\nguidance caused by the lack of a coordinated review process\\nSome information being distributed externally and internally was inconsistent or incomplete.\\nOnce the issues were raised to the Executive Steering Committee, actions were initiated to\\naddress most of the concerns. For example:\\nInconsistent Guidance\\n \\xe2\\x80\\xa2 Guidance provided on IRS.gov and to Taxpayer Assistance Center employees was not\\n consistent. Information on the IRS web site indicated that taxpayers who were filing a\\n tax return for the sole purpose of claiming the stimulus payment would only have to fill\\n out a few specific items on the Form 1040A.",
"However, instructions provided to the\\n Taxpayer Assistance Center employees required the completion of additional areas of the\\n Form 1040A. The IRS corrected the guidance provided to the Taxpayer Assistance\\n Centers.\\n \\xe2\\x80\\xa2 Guidance was inconsistent between instructions in the tax package 1040A-3 and IRS\\n procedures for processing stimulus-only returns. The package 1040A-3 instructs\\n individuals filing a stimulus-only tax return to put their combined earned income on\\n Line 7 of the Form 1040A and attach supporting Wage and Tax Statements (Form W-2).\\n These instructions are silent on what the individual should do if no Form W-2 is available\\n except that self-employment income can be reported on this Line if less than $400.\\n However, the IRS processing procedures tell employees to send returns back to the\\n individuals if this income is not supported or explained.",
"This can result in individuals not\\n receiving a stimulus payment they are entitled to because not all reported income is\\n supported by proper documentation. The IRS elected not to change its processing\\n procedures.\\nIncomplete Guidance\\n \\xe2\\x80\\xa2 Guidance did not inform individuals that they should not reduce their TY 2007 tax due by\\n the stimulus payment amount. The IRS subsequently updated IRS.gov to advise\\n taxpayers not to do this.\\n \\xe2\\x80\\xa2 Guidance did not contain all eligibility information. The IRS did not expand on the\\n eligibility information because its Communications function was concerned that\\n\\n Page 8\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n taxpayers would be confused if the IRS tried to explain all the eligibility requirements. In\\n addition, news articles have misstated the basic eligibility requirements, possibly as a\\n result of the incomplete information available from the IRS.\\n \\xe2\\x80\\xa2 Guidance did not inform individuals that anyone not receiving a TY 2007 refund would\\n get their stimulus payment via paper check. Subsequent to our raising this concern, the\\n IRS issued guidance clarifying that individuals not receiving a TY 2007 refund could\\n receive their stimulus payment by direct deposit if they included their bank account\\n information on their tax return.\\n \\xe2\\x80\\xa2 Guidance was unclear about when individuals would receive their stimulus payment.\\n Only tax returns processed by the IRS before April 15, 2008, will have stimulus\\n payments issued according to the IRS\\xe2\\x80\\x99 published payment schedule.",
"However,\\n information released by the IRS implied all tax returns filed by April 15 would have\\n payments issued per the schedule. The IRS subsequently released detailed information\\n encouraging individuals to file early to ensure that their returns were processed by\\n April 15 and clarifying that only tax returns received and processed before that date\\n would have stimulus payments issued per the published payment schedule.\\n \\xe2\\x80\\xa2 Guidance was not initially provided to Volunteer Income Tax Assistance and Tax\\n Counseling for the Elderly sites8 on how to serve individuals who ask for help with\\n preparing their stimulus-only tax returns. At the time we raised this concern, the IRS was\\n in the process of providing guidance to the Volunteer Income Tax Assistance and Tax\\n Counseling for the Elderly sites.\\nIn addition, we reviewed the draft tax package 1040A-3 prior to issuance and provided\\ncomments to the IRS for its use in finalizing the package and preparing it for mailing. The IRS\\nincorporated all of our suggestions, except the one relating to filing status, into its efforts to\\nfinalize the tax package and mail it to approximately 20 million individuals beginning on\\nMarch 15, 2008. Items we noted included that:\\n \\xe2\\x80\\xa2 The instructions told individuals to file their returns by December 1, 2008.",
"Our concern\\n was that this could confuse individuals because the normal and extended individual tax\\n return filing dates are April 15 and October 15, respectively. The IRS revised the\\n instructions to encourage individuals to file as soon as possible but advising that they\\n must file by October 15, 2008.\\n \\xe2\\x80\\xa2 The instructions did not provide specific information on where to mail a stimulus-only\\n tax return.\\n \\xe2\\x80\\xa2 The instructions were confusing on how to file for each filing status (e.g., single, married\\n filing jointly).\\n\\n8\\n Free income tax assistance services supported by the IRS.\\n Page 9\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n \\xe2\\x80\\xa2 The instructions did not contain guidance on how to properly sign the tax return when the\\n individual filing the return was represented by a guardian or other legal representative\\n (e.g., individuals in nursing facilities who might be incapacitated).\\nAlthough the IRS had established an Executive Steering Committee to coordinate the planning\\nfor the stimulus payment, each IRS function was responsible for creating and disseminating\\ninformation relative to its area of responsibility. Many of the concerns we raised could have\\nbeen prevented if information had been reviewed at a central point to ensure consistency and\\ncompleteness.\\nWe will continue to evaluate the IRS\\xe2\\x80\\x99 implementation of the stimulus payment as it moves\\nforward.",
"We have begun assessing whether stimulus payments are calculated correctly and the\\nIRS\\xe2\\x80\\x99 process to prevent individuals that are not entitled to receive a stimulus payment from\\nreceiving it.\\n\\n\\n\\n\\n Page 10\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n Appendix I\\n\\n Detailed Objective, Scope, and Methodology\\n\\nThe overall objective of this review was to evaluate the effectiveness of the IRS\\xe2\\x80\\x99 efforts to plan\\nand implement the 20081 economic stimulus payments. The scope of this review was limited to\\nan assessment of the IRS\\xe2\\x80\\x99 efforts to plan for the implementation of the stimulus payments and is\\nbased on actions taken by the IRS as of April 1, 2008. To accomplish our objective, we:\\nI.",
"Analyzed the Economic Stimulus Act of 20082 to determine the eligibility requirements,\\n how the stimulus payments are computed, and the instructions to the IRS on distributing\\n the payments.\\nII. Evaluated the effectiveness of the IRS\\xe2\\x80\\x99 overall planning process for issuing the economic\\n stimulus payments. We met with the Executive Steering Committee and IRS executives\\n to discuss how the IRS planned to implement the economic stimulus payments and\\n obtained copies of functional Action Plans and meeting notes related to those Plans as\\n well as notes of Executive Steering Committee meetings.\\nIII. Evaluated the adequacy of the IRS\\xe2\\x80\\x99 plans for educating and assisting individuals in\\n ensuring that they receive the proper economic stimulus payment, including efforts to\\n assist non-English-speaking individuals and those who would not otherwise be required\\n to file an individual income tax return.\\n A. Evaluated the IRS\\xe2\\x80\\x99 plans to inform the public and the tax preparer community about\\n who is eligible for a stimulus payment and how to claim the payment, including how\\n to obtain assistance from the IRS.",
"We assessed the clarity, accuracy, completeness,\\n and cost of the Economic Stimulus Payment Notice (Notice 1377) and the tax\\n package Information About Economic Stimulus Payments for Social Security,\\n Veterans, and Other Beneficiaries (Package 1040A-3). We also evaluated the\\n accuracy, clarity, completeness, and timeliness of the information made available on\\n IRS.gov.\\n B. Assessed the effectiveness of the IRS\\xe2\\x80\\x99 efforts to ensure that its Taxpayer Assistance\\n Centers3 and Volunteer Income Tax Assistance and Tax Counseling for the Elderly\\n sites4 were able to properly educate and assist individuals on the stimulus payment.\\n\\n\\n1\\n Unless otherwise noted, all dates are calendar year.\\n2\\n Pub. L. 110-185, 122 Stat. 613.\\n3\\n IRS offices with employees who answer questions, provide assistance, and resolve account-related issues for\\ntaxpayers face to face.\\n4\\n Free income tax assistance services supported by the IRS.\\n Page 11\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n We also determined if the IRS increased its promotion of electronic filing as a\\n preferred way to file for the stimulus payment.\\nIV. Evaluated the effectiveness of the IRS\\xe2\\x80\\x99 Action Plans for determining the stimulus\\n payment eligibility and the calculation of the payment amount to determine if the Plans\\n were sufficient to ensure that stimulus payments were properly computed and issued to\\n eligible individuals.\\n A. Discussed the process used to develop the computer programs necessary to identify\\n eligible individuals, calculate the payment amount, and issue the stimulus payment in\\n a timely manner.",
"We also reviewed applicable computer programming\\n documentation to determine if planned programming would accurately identify\\n eligible individuals and accurately compute the stimulus payment.\\n B. Determined the steps the IRS planned to take to ensure that stimulus payments are\\n paid as quickly as possible within the guidelines of the Economic Stimulus Act of\\n 2008. This included evaluating the IRS\\xe2\\x80\\x99 plans for issuing stimulus payments through\\n direct deposit and assessing the effect that delays in processing certain individual\\n income tax returns would have on the stimulus payments.\\n C. Determined what additional controls the IRS planned to use to ensure that fraudulent\\n or otherwise erroneous attempts to receive a stimulus payment are identified. We\\n also evaluated planned controls to determine if they were sufficient to minimize the\\n risk of fraud or significant error.\\nV.",
"Identified the processes the IRS planned to use to track the stimulus payments, including\\n implementation costs.\\n\\n\\n\\n\\n Page 12\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n Appendix II\\n\\n Major Contributors to This Report\\n\\nMichael E. McKenney, Assistant Inspector General for Audit (Wage and Investment Income\\nPrograms)\\nRussell Martin, Director\\nDeann Baiza, Audit Manager\\nJohn Hawkins, Lead Auditor\\nSharla Robinson, Lead Auditor\\nKathleen Hughes, Senior Auditor\\nSteven Stephens, Senior Auditor\\nJennie Choo, Auditor\\n\\n\\n\\n\\n Page 13\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n Appendix III\\n\\n Report Distribution List\\n\\nCommissioner C\\nOffice of the Commissioner \\xe2\\x80\\x93 Attn: Chief of Staff C\\nCommissioner, Wage and Investment Division SE:W\\nChief Information Officer OS:CIO\\nChief, Criminal Investigation Division SE:CI\\nDirector, Communications and Liaison, Wage and Investment Division SE:W:C\\nDirector, Compliance, Wage and Investment Division SE:W:CP\\nDirector, Customer Account Services, Wage and Investment Division SE:W:CAS\\nDirector, Customer Assistance, Relationships, and Education, Wage and Investment Division\\nSE:W:CAR\\nDirector, Electronic Tax Administration and Refundable Credits, Wage and Investment Division\\nSE:W:ETARC\\nDirector, Strategy and Finance, Wage and Investment Division SE:W:S\\nChief Counsel CC\\nNational Taxpayer Advocate TA\\nDirector, Office of Legislative Affairs CL:LA\\nDirector, Office of Program Evaluation ad Risk Analysis RAS:O\\nOffice of Internal Control OS:CFO:CPIC:IC\\nAudit Liaison: Senior Operations Advisor, Wage and Investment Division SE:W:S\\n\\n\\n\\n\\n Page 14\\n\\x0c Evaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n Appendix IV\\n\\nManagement\\xe2\\x80\\x99s Response to the Draft Report\\n\\n\\n\\n\\n Page 15\\n\\x0cEvaluation of Planning Efforts for the Issuance of Economic\\n Stimulus Payments\\n\\n\\n\\n\\n Page 16\\n\\x0c'"
]
| https://archive.org/download/us-inspectors-general.bulk/us-inspectors-general.bulk.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Ct. Crim. App. Tex. Certiorari denied. | 11-28-2022 | [
"Ct. Crim. App. Tex. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9145067/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. This action is in response to the filing on 12/13/2021. Since the previous filing, claims 21-23 and 26-28 have been amended, claims 24-25 have been cancelled and no claims have been added. Thus, claims 1-23 and 26-28 are pending in the application. In regards to the previous claim objections, applicant has amended to overcome these objections and they are therefore withdrawn. In regards to the previous 112 rejections, applicant has amended to overcome these rejections and they are therefore withdrawn. In regards to the previous 103 rejections, applicant’s arguments regarding the applicability of Scheiner are persuasive and the rejections have been withdrawn with new rejections entered below. Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claim 1, 2 and 21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034), Ng (US 2009/0050156), hereafter referred to as Ng-156, Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700, as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html).
PNG media_image1.png 411 448 media_image1.png Greyscale
Annotated Fig 5 Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter. However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27); a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ratio of length to diameter is 2.67-4.62, paragraph 27).
While Ho does not explicitly disclose that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound or wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound or wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than Ho does not teach that the material of surface characteristic 28’ is a fibrous media and wherein in use, the flow of vented gas exits the vent hole exits along a first direction, impinges on the fibrous media and thereby the fibrous media reduces a velocity of, reduces entrainment of surrounding air into, and diffuses the flow of vented gas forming a reduced velocity and diffused flow of gases. However, Ng-156 teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). While Ng-156 does not explicitly teach that the diffuser reduces the velocity of the airflow, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system. Further, while Ng-156 does not teach that entrainment of surrounding air is reduced, reducing the velocity of the flow reduces entrainment (Fluid or Air Entrainment: paragraph C). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the material of surface characteristic 28’ is a fibrous media and wherein in use, the flow of vented gas exits the vent hole exits along a first direction, impinges on the fibrous media and thereby the fibrous media reduces a velocity of, reduces entrainment of surrounding air into, and diffuses the flow of vented gas forming a reduced velocity and diffused flow of gases as taught by Ng-156 and Fluid or Air Entrainment as such fibrous media is known in the art to be used to diffuse airflow to for sound reduction. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, the first wall portion being made from a third However, Barlow teaches the mask body portion being made from a first material (sealing portion comprises cushion, paragraph 281, made from soft material such as a molded thermoplastic elastomer (TPE), a gel filled bladder, foam, paragraph 282); the rigid frame being made from a second material (frame made of a more rigid material than the sealing portion such as polycarbonate, 380); and elbow rotatably connection (swivel elbow 230, paragraph 235). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material, or that the elbow is rotatably connected to the frame as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks and a swivel connection would allow for the connection to accommodate motion of the patient. Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, see Annotated Fig 5; Ng-700: venting arrangement may be to a soft part such as silicone, paragraph 226). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks. In regards to claim 2, Ho in view of Howard, Ng-156, Barlow and Ng-700 and as evidenced by Fluid or Air Entrainment teaches the device of claim 1 and the combination further teaches wherein the fibrous media provides a tortuous path for the flow of vented gas to pass through to reduce the velocity of the flow of vented gas (Ng-156: paragraph 195, see instant In regards to claim 21, Ho in view of Howard, Ng-156, Barlow and Ng-700 and as evidenced by Fluid or Air Entrainment teaches the device of claim 1 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3).
PNG media_image2.png 326 275 media_image2.png Greyscale
Annotated Fig 3 Claim 3-5, 7-11, 22 and 27 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034) and Ng (US 2009/0050156) as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html). In regards to claim 3, Ho discloses a patient interface assembly for delivering positive pressure therapy to a patient (patient interface 8, paragraph 29), the patient interface assembly comprising: a mask body portion adapted to create at least a substantial seal with facial Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter. However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27); a vent hole length extending from the vent hole entrance to the vent hole exit and being at least Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter as taught by Howard as these are known dimension for the vent holes for the purpose of reducing noise (Howard: paragraph 28). While Ho does not explicitly disclose wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction.
However, Ng teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the surface characteristic is a fibrous media as taught by Ng as it is known in the art that such materials may be used to mitigate sound. In regards to claim 4, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein the fibrous media provides a tortuous path (Ng: paragraph 195, see instant Specification paragraph 110, materials used in Ng are among those listed in instant Specification as having the required properties) for a flow of vented gases from the plurality of vent holes to pass through (Ho: see Annotated Fig 5) to reduce a velocity of the flow of vented gases from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system). In regards to claim 5, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein the fibrous media is configured to reduce entrainment of surrounding air, into a flow of vented gasses, from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, which reduces velocity of air flow, see definition of diffuser as defined by Merriam-Webster; Fluid or Air Entrainment: reducing velocity of a flow reduced entrainment, paragraph C). In regards to claim 7, Ho in view of Howard and Ng teaches the device of claim 3 and Ho further discloses wherein the vent hole exit being oriented to direct a flow of vented gas along a In regards to claim 8, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach wherein the vent hole length is at least approximately two times as long as the vent hole inner diameter. However, Howard teaches wherein the vent hole length is at least approximately two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 27). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter as taught by Howard as these dimension are known for vent holes for the purpose of reducing noise (Howard: paragraph 28). In regards to claim 9, Ho in view of Howard and Ng teaches the device of claim 3 and Ho further discloses wherein the second wall portion contains no holes aligned with the vent hole exits of the plurality of vent holes, when viewed in section (deflector portion 24 does not have holes, Fig 5). In regards to claim 10, Ho in view of Howard and Ng teaches the device of claim 3. While Ho does not explicitly disclose that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction. In regards to claim 11, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein in use, a flow of vented gases from the plurality of vent holes exits the vent hole exits along a first direction (Ho: see Annotated Fig 5), impinges on the fibrous media and thereby the fibrous media reduces a velocity of and diffuses the flow of vented gases from the plurality of vent holes (Ho: see Annotated Fig 5), forming a reduced velocity and diffused flow of gases (Ng: fibrous media acts as a diffuser, paragraph 194, see definition of diffuser as defined by Merriam-Webster), whereby the reduced velocity and diffused flow of gases is redirected from the first direction to a second direction generally normal relative to the first direction (Ho: see Annotated Fig 5). In regards to claim 22, Ho in view of Howard and Ng teaches the device of claim 11 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3). In regards to claim 25, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach where in a vent hole inner diameter at least 0.5 mm. However, Howard teaches wherein a vent hole inner diameter at least 0.5 mm (diameter may be 0.65-0.75 mm, paragraph 27).
In regards to claim 27, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach wherein the vent hole length is at least two times as long as the vent hole inner diameter. However, Howard teaches wherein the vent hole length is at least two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 28). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the vent hole length is at least two times as long as the vent hole inner diameter as taught by Howard as it these are known dimension for vent holes for the purpose of reducing noise (Howard: paragraph 28). Claim 6 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034) and Ng (US 2009/0050156), hereafter referred to as Ng-156, as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html) as applied to claim 3 and in further view of Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700. In regards to claim 6, Ho in view of Howard and Ng-156 teaches the device of claim 3. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, or the first wall portion being made from a third material different form the first and second material wherein the third material is softer than the second material.
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks. Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, see Annotated Fig 5; Ng-700: venting arrangement may be to a soft part such as silicone, paragraph 226) wherein the third material is softer than the second material (instant specification paragraph 73 lists polycarbonate as frame material and paragraph 81 lists silicone as vent material). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials wherein the third material is softer than the second material as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks. Claim 12, 13, 16, 17, 20 and 23 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Ng (US 2009/0050156). In regards to claim 12, Ho discloses a patient interface assembly (patient interface 8) comprising: a mask body portion adapted to create at least a substantial seal with facial surfaces around a nose and/or mouth of a patient (cushion 8a); a mask frame supporting the While Ho does not explicitly disclose that the first side of the media is spaced apart from the outer surface of the first side wall portion by at last a first spacing, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is spaded apart from the outer side surface of the first wall portion by at least a first spacing as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction. Ho does not teach that the surface characteristic is a fibrous media. However, Ng teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the surface characteristic is a fibrous media as taught by Ng as it is known in the art that such materials may be used to mitigate sound. In regards to claim 13, Ho in view of Ng teaches the device of claim 12 and the combination further teaches wherein the fibrous media defines a tortuous path (Ng: paragraph 195, see instant Specification paragraph 110, materials used in Ng are among those listed in instant Specification as having the required properties) for a flow of vented gases from the plurality of vent holes to pass through to reduce a velocity of the flow of vented gases from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system). In regards to claim 16, Ho in view of Ng teaches the device of claim 12 and Ho further discloses wherein the second wall portion contains no holes aligned with the vent hole exits of the plurality of vent holes, when viewed in section (no holes in deflection portion 24, Fig 5).
In regards to claim 20, Ho in view of Ng teaches the device of claim 12. While Ho does not explicitly disclose that the first the first spacing is at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first spacing is at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter as In regards to claim 23, Ho in view of Ng teaches the device of claim 17 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3). Claim 14 and 18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in Ng (US 2009/0050156), hereafter referred to as Ng-156, as applied to claim 12 and in further view of Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700. In regards to claim 14, Ho in view of Ng-156 teaches the device of claim 12. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, or the first wall portion being made from a third material different form the first and second material wherein the third material is softer than the second material. However, Barlow teaches the mask body portion being made from a first material (sealing portion comprises cushion, paragraph 281, made from soft material such as a molded thermoplastic elastomer (TPE), a gel filled bladder, foam, paragraph 282); the rigid frame being made from a second material (frame made of a more rigid material than the sealing portion such as polycarbonate, 380). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks. Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks. In regards to claim 18, Ho in view of Ng-156 teaches the device of claim 12 and Ho further discloses additionally comprising a connection elbow assembly (elbow 11) releasably connected to a releasable connection portion of the mask frame (shell 8b coupled to elbow 11, paragraph 33 line 1-5) wherein the first wall portion is disposed on the connection elbow assembly (exhaust port 10, Fig 5). Ho does not disclose wherein the elbow is rotatably connected. However, Barlow teaches the elbow is rotatably connected (swivel elbow 230, paragraph 235). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the elbow is rotatably connected to a releasable connection portion as taught by Barlow as this would allow the elbow to accommodate motion of the patient. Claim 15, 19, 26 and 28 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Ng (US 2009/0050156) as applied to claim 12 and un further view of Howard (US 2010/0051034). In regards to claim 15, Ho in view of Ng teaches the device of claim 12.
However, Howard teaches wherein the vent hole length is at least approximately two times as long as an inner diameter of the plurality of vent holes (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 27). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole length is at least approximately two times as long as the vent hole inner diameter as taught by Howard as these are known dimensions for vent holes for the purpose of reducing noise (Howard: paragraph 28). In regards to claim 19, Ho in view of Ng teaches the device of claim 12. Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter. However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm as taught by Howard as these are known dimensions for vent holes for the purpose of reducing noise (Howard: paragraph 28). In regards to claim 26, Ho in view of Ng teaches the device of claim 12. Ho does not teach where in a vent hole inner diameter at least 0.5 mm. However, Howard teaches wherein a vent hole inner diameter at least 0.5 mm (diameter may be 0.65-0.75 mm, paragraph 27. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that where in a vent hole inner In regards to claim 28, Ho in view of Ng teaches the device of claim 12. Ho does not teach wherein the vent hole length is at least two times as long as the vent hole inner diameter. However, Howard teaches wherein the vent hole length is at least two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 28). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that wherein the vent hole length is at least two times as long as the vent hole inner diameter as taught by Howard as it these are known dimension for vent holes for the purpose of reducing noise (Howard: paragraph 28). Response to Arguments In regards to applicant’s arguments regarding the use of Scheiner, these arguments are persuasive. As such, a new Non-Final Action has been written wherein Scheiner has been removed as prior art and new rejections based on Ng have been entered. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arielle Wolff whose telephone number is (571)272-8727. The examiner can normally be reached Mon-Thu 7:30-4:00; Fri 7:30-1:30. 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.
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/ARIELLE WOLFF/ Examiner, Art Unit 3785 /KENDRA D CARTER/ Supervisory Patent Examiner, Art Unit 3785 | 2022-01-13T10:35:26 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. This action is in response to the filing on 12/13/2021. Since the previous filing, claims 21-23 and 26-28 have been amended, claims 24-25 have been cancelled and no claims have been added. Thus, claims 1-23 and 26-28 are pending in the application. In regards to the previous claim objections, applicant has amended to overcome these objections and they are therefore withdrawn. In regards to the previous 112 rejections, applicant has amended to overcome these rejections and they are therefore withdrawn. In regards to the previous 103 rejections, applicant’s arguments regarding the applicability of Scheiner are persuasive and the rejections have been withdrawn with new rejections entered below. Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.",
"Claim 1, 2 and 21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034), Ng (US 2009/0050156), hereafter referred to as Ng-156, Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700, as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html). PNG media_image1.png 411 448 media_image1.png Greyscale Annotated Fig 5 Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter. However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27); a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ratio of length to diameter is 2.67-4.62, paragraph 27).",
"While Ho does not explicitly disclose that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound or wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents.",
"The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound or wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than Ho does not teach that the material of surface characteristic 28’ is a fibrous media and wherein in use, the flow of vented gas exits the vent hole exits along a first direction, impinges on the fibrous media and thereby the fibrous media reduces a velocity of, reduces entrainment of surrounding air into, and diffuses the flow of vented gas forming a reduced velocity and diffused flow of gases.",
"However, Ng-156 teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). While Ng-156 does not explicitly teach that the diffuser reduces the velocity of the airflow, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system. Further, while Ng-156 does not teach that entrainment of surrounding air is reduced, reducing the velocity of the flow reduces entrainment (Fluid or Air Entrainment: paragraph C).",
"Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the material of surface characteristic 28’ is a fibrous media and wherein in use, the flow of vented gas exits the vent hole exits along a first direction, impinges on the fibrous media and thereby the fibrous media reduces a velocity of, reduces entrainment of surrounding air into, and diffuses the flow of vented gas forming a reduced velocity and diffused flow of gases as taught by Ng-156 and Fluid or Air Entrainment as such fibrous media is known in the art to be used to diffuse airflow to for sound reduction. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, the first wall portion being made from a third However, Barlow teaches the mask body portion being made from a first material (sealing portion comprises cushion, paragraph 281, made from soft material such as a molded thermoplastic elastomer (TPE), a gel filled bladder, foam, paragraph 282); the rigid frame being made from a second material (frame made of a more rigid material than the sealing portion such as polycarbonate, 380); and elbow rotatably connection (swivel elbow 230, paragraph 235). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material, or that the elbow is rotatably connected to the frame as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks and a swivel connection would allow for the connection to accommodate motion of the patient.",
"Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, see Annotated Fig 5; Ng-700: venting arrangement may be to a soft part such as silicone, paragraph 226). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks. In regards to claim 2, Ho in view of Howard, Ng-156, Barlow and Ng-700 and as evidenced by Fluid or Air Entrainment teaches the device of claim 1 and the combination further teaches wherein the fibrous media provides a tortuous path for the flow of vented gas to pass through to reduce the velocity of the flow of vented gas (Ng-156: paragraph 195, see instant In regards to claim 21, Ho in view of Howard, Ng-156, Barlow and Ng-700 and as evidenced by Fluid or Air Entrainment teaches the device of claim 1 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3).",
"PNG media_image2.png 326 275 media_image2.png Greyscale Annotated Fig 3 Claim 3-5, 7-11, 22 and 27 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034) and Ng (US 2009/0050156) as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html). In regards to claim 3, Ho discloses a patient interface assembly for delivering positive pressure therapy to a patient (patient interface 8, paragraph 29), the patient interface assembly comprising: a mask body portion adapted to create at least a substantial seal with facial Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter.",
"However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27); a vent hole length extending from the vent hole entrance to the vent hole exit and being at least Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter as taught by Howard as these are known dimension for the vent holes for the purpose of reducing noise (Howard: paragraph 28). While Ho does not explicitly disclose wherein a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents.",
"The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a first side the media is spaced from the outer side of the first wall portion by a spacing at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction.",
"However, Ng teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the surface characteristic is a fibrous media as taught by Ng as it is known in the art that such materials may be used to mitigate sound. In regards to claim 4, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein the fibrous media provides a tortuous path (Ng: paragraph 195, see instant Specification paragraph 110, materials used in Ng are among those listed in instant Specification as having the required properties) for a flow of vented gases from the plurality of vent holes to pass through (Ho: see Annotated Fig 5) to reduce a velocity of the flow of vented gases from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system).",
"In regards to claim 5, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein the fibrous media is configured to reduce entrainment of surrounding air, into a flow of vented gasses, from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, which reduces velocity of air flow, see definition of diffuser as defined by Merriam-Webster; Fluid or Air Entrainment: reducing velocity of a flow reduced entrainment, paragraph C). In regards to claim 7, Ho in view of Howard and Ng teaches the device of claim 3 and Ho further discloses wherein the vent hole exit being oriented to direct a flow of vented gas along a In regards to claim 8, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach wherein the vent hole length is at least approximately two times as long as the vent hole inner diameter.",
"However, Howard teaches wherein the vent hole length is at least approximately two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 27). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter as taught by Howard as these dimension are known for vent holes for the purpose of reducing noise (Howard: paragraph 28). In regards to claim 9, Ho in view of Howard and Ng teaches the device of claim 3 and Ho further discloses wherein the second wall portion contains no holes aligned with the vent hole exits of the plurality of vent holes, when viewed in section (deflector portion 24 does not have holes, Fig 5). In regards to claim 10, Ho in view of Howard and Ng teaches the device of claim 3.",
"While Ho does not explicitly disclose that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is position between the vent hole exits and a distance from the vent hole exits at which the flow of vented gas produces sound as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction.",
"In regards to claim 11, Ho in view of Howard and Ng teaches the device of claim 3 and the combination further teaches wherein in use, a flow of vented gases from the plurality of vent holes exits the vent hole exits along a first direction (Ho: see Annotated Fig 5), impinges on the fibrous media and thereby the fibrous media reduces a velocity of and diffuses the flow of vented gases from the plurality of vent holes (Ho: see Annotated Fig 5), forming a reduced velocity and diffused flow of gases (Ng: fibrous media acts as a diffuser, paragraph 194, see definition of diffuser as defined by Merriam-Webster), whereby the reduced velocity and diffused flow of gases is redirected from the first direction to a second direction generally normal relative to the first direction (Ho: see Annotated Fig 5). In regards to claim 22, Ho in view of Howard and Ng teaches the device of claim 11 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3). In regards to claim 25, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach where in a vent hole inner diameter at least 0.5 mm. However, Howard teaches wherein a vent hole inner diameter at least 0.5 mm (diameter may be 0.65-0.75 mm, paragraph 27). In regards to claim 27, Ho in view of Howard and Ng teaches the device of claim 3. Ho does not teach wherein the vent hole length is at least two times as long as the vent hole inner diameter.",
"However, Howard teaches wherein the vent hole length is at least two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 28). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the vent hole length is at least two times as long as the vent hole inner diameter as taught by Howard as it these are known dimension for vent holes for the purpose of reducing noise (Howard: paragraph 28). Claim 6 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Howard (US 2010/0051034) and Ng (US 2009/0050156), hereafter referred to as Ng-156, as evidenced by Fluid or Air Entrainment (https://media.lanecc.edu/users/driscolln/RT112/Air_Flow_Fluidics/Air_Flow_Fluidics7.html) as applied to claim 3 and in further view of Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700. In regards to claim 6, Ho in view of Howard and Ng-156 teaches the device of claim 3. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, or the first wall portion being made from a third material different form the first and second material wherein the third material is softer than the second material. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks.",
"Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, see Annotated Fig 5; Ng-700: venting arrangement may be to a soft part such as silicone, paragraph 226) wherein the third material is softer than the second material (instant specification paragraph 73 lists polycarbonate as frame material and paragraph 81 lists silicone as vent material). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials wherein the third material is softer than the second material as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks.",
"Claim 12, 13, 16, 17, 20 and 23 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Ng (US 2009/0050156). In regards to claim 12, Ho discloses a patient interface assembly (patient interface 8) comprising: a mask body portion adapted to create at least a substantial seal with facial surfaces around a nose and/or mouth of a patient (cushion 8a); a mask frame supporting the While Ho does not explicitly disclose that the first side of the media is spaced apart from the outer surface of the first side wall portion by at last a first spacing, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents. The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A).",
"With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first side of the media is spaded apart from the outer side surface of the first wall portion by at least a first spacing as this would allow the sound characteristics of the vents to be adjusted for optimal sound reduction. Ho does not teach that the surface characteristic is a fibrous media.",
"However, Ng teaches that it is known in positive pressure masks to use a fibrous media (media provided to the vent arrangement may be selected from a range of materials including felt and open cell foam, paragraph 194-195, see instant Specification paragraph 110) to diffuse airflow and reduce noise (paragraph 193). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the surface characteristic is a fibrous media as taught by Ng as it is known in the art that such materials may be used to mitigate sound. In regards to claim 13, Ho in view of Ng teaches the device of claim 12 and the combination further teaches wherein the fibrous media defines a tortuous path (Ng: paragraph 195, see instant Specification paragraph 110, materials used in Ng are among those listed in instant Specification as having the required properties) for a flow of vented gases from the plurality of vent holes to pass through to reduce a velocity of the flow of vented gases from the plurality of vent holes (Ng: fibrous media acts as a diffuser, paragraph 194, a diffuser as defined by Merriam-Webster is a device for reducing a velocity of a fluid passing through a system).",
"In regards to claim 16, Ho in view of Ng teaches the device of claim 12 and Ho further discloses wherein the second wall portion contains no holes aligned with the vent hole exits of the plurality of vent holes, when viewed in section (no holes in deflection portion 24, Fig 5). In regards to claim 20, Ho in view of Ng teaches the device of claim 12. While Ho does not explicitly disclose that the first the first spacing is at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter, Ho teaches that a distance D between the exhaust port 10 and the inner surface 25 of the deflector portion 24 may be modified for the purpose of altering and specifically mitigating the sound produced by the gas passing through the vents.",
"The distance represents a variable that may be optimized through routine experimentation (see MPEP 2144.05 II A). With respect to routine optimization, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges which result from routine experimentation (see MPEP 2144.05 II B), the distance results in a recognized result of sound reduction, and where there is a design need for such a results-effective variable to be optimized, alongside a finite number of solutions, under KSR ruling, optimizing pertinent ranges would be “obvious to try” and therefore not patentable distinct over the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the first spacing is at least as large as the vent hole inner diameter and less than five times the vent hole inner diameter as In regards to claim 23, Ho in view of Ng teaches the device of claim 17 and Ho further teaches wherein the diffused gasses are also redirected in a third direction opposite the second direction (see Annotated Fig 3).",
"Claim 14 and 18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in Ng (US 2009/0050156), hereafter referred to as Ng-156, as applied to claim 12 and in further view of Barlow (US 2012/0067349) and Ng (US 2010/0319700), hereafter referred to as Ng-700. In regards to claim 14, Ho in view of Ng-156 teaches the device of claim 12. Ho does not disclose wherein the mask body portion is made from a first material, the rigid frame is made from a second material, or the first wall portion being made from a third material different form the first and second material wherein the third material is softer than the second material.",
"However, Barlow teaches the mask body portion being made from a first material (sealing portion comprises cushion, paragraph 281, made from soft material such as a molded thermoplastic elastomer (TPE), a gel filled bladder, foam, paragraph 282); the rigid frame being made from a second material (frame made of a more rigid material than the sealing portion such as polycarbonate, 380). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the mask body portion is made from a first material, the rigid frame is made from a second material as taught by Barlow as these materials are known in the art to be used for the various components of positive pressure masks. Additionally, Ng-700 teaches the first wall portion being made from a third material different than the first and second materials (Ho: shows the first wall is the surface of the elbow, Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Ho such that the first wall portion being made from a third material different than the first and second materials as taught by Ng-700 as these materials are known in the art to be used for the various components of positive pressure masks. In regards to claim 18, Ho in view of Ng-156 teaches the device of claim 12 and Ho further discloses additionally comprising a connection elbow assembly (elbow 11) releasably connected to a releasable connection portion of the mask frame (shell 8b coupled to elbow 11, paragraph 33 line 1-5) wherein the first wall portion is disposed on the connection elbow assembly (exhaust port 10, Fig 5).",
"Ho does not disclose wherein the elbow is rotatably connected. However, Barlow teaches the elbow is rotatably connected (swivel elbow 230, paragraph 235). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that the elbow is rotatably connected to a releasable connection portion as taught by Barlow as this would allow the elbow to accommodate motion of the patient. Claim 15, 19, 26 and 28 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ho (US 2012/0266884) in view of Ng (US 2009/0050156) as applied to claim 12 and un further view of Howard (US 2010/0051034). In regards to claim 15, Ho in view of Ng teaches the device of claim 12. However, Howard teaches wherein the vent hole length is at least approximately two times as long as an inner diameter of the plurality of vent holes (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 27).",
"Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole length is at least approximately two times as long as the vent hole inner diameter as taught by Howard as these are known dimensions for vent holes for the purpose of reducing noise (Howard: paragraph 28). In regards to claim 19, Ho in view of Ng teaches the device of claim 12. Ho does not teach where in a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm and a vent hole length extending from the vent hole entrance to the vent hole exit and being at least approximately two times as long as the vent hole inner diameter.",
"However, Howard teaches wherein a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm (diameter may be 0.65-0.75 mm, paragraph 27). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that a vent hole inner diameter at least approximately 0.5 mm and equal to or less than 1.5 mm as taught by Howard as these are known dimensions for vent holes for the purpose of reducing noise (Howard: paragraph 28).",
"In regards to claim 26, Ho in view of Ng teaches the device of claim 12. Ho does not teach where in a vent hole inner diameter at least 0.5 mm. However, Howard teaches wherein a vent hole inner diameter at least 0.5 mm (diameter may be 0.65-0.75 mm, paragraph 27. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that where in a vent hole inner In regards to claim 28, Ho in view of Ng teaches the device of claim 12. Ho does not teach wherein the vent hole length is at least two times as long as the vent hole inner diameter. However, Howard teaches wherein the vent hole length is at least two times as long as the vent hole inner diameter (diameter may be 0.65-0.75mm and length may be 2-3 mm therefore ration of length to diameter is 2.67-4.62, paragraph 28). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Ho such that wherein the vent hole length is at least two times as long as the vent hole inner diameter as taught by Howard as it these are known dimension for vent holes for the purpose of reducing noise (Howard: paragraph 28).",
"Response to Arguments In regards to applicant’s arguments regarding the use of Scheiner, these arguments are persuasive. As such, a new Non-Final Action has been written wherein Scheiner has been removed as prior art and new rejections based on Ng have been entered. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arielle Wolff whose telephone number is (571)272-8727. The examiner can normally be reached Mon-Thu 7:30-4:00; Fri 7:30-1:30. 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.",
"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. /ARIELLE WOLFF/ Examiner, Art Unit 3785 /KENDRA D CARTER/ Supervisory Patent Examiner, Art Unit 3785"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: Facing 3 charges, worst case scenario: community service. Not a US citizen, but a greencard holder. How possible is deportation? Question:I'm facing 3 charges, 1 violation (possesion of marijuana) and 2 misdemeanors (false statement to police and possession of adderall without prescription). I recently left the country and came back and was questioned at immigration about my charges and they told me if I am found guilty of them, I may be deported from the country since I'm not a citizen of the US. I am however a greencard holder and I'm asian.
When I told my lawyer this he said oh we should meet an immigration lawyer and consult about that. I'm really angry at him for never mentioning this possibility this whole time since last february.
My question is how possible is it really that I would be deported if found guilty of the charges? My next court date is in the middle of October. Answer #1: Yes it's possible. You're here as a guest and breaking the law. | 09-28-2015 | [
"Title: Facing 3 charges, worst case scenario: community service. Not a US citizen, but a greencard holder. How possible is deportation? Question:I'm facing 3 charges, 1 violation (possesion of marijuana) and 2 misdemeanors (false statement to police and possession of adderall without prescription). I recently left the country and came back and was questioned at immigration about my charges and they told me if I am found guilty of them, I may be deported from the country since I'm not a citizen of the US. I am however a greencard holder and I'm asian. When I told my lawyer this he said oh we should meet an immigration lawyer and consult about that. I'm really angry at him for never mentioning this possibility this whole time since last february. My question is how possible is it really that I would be deported if found guilty of the charges? My next court date is in the middle of October. Answer #1: Yes it's possible. You're here as a guest and breaking the law."
]
| https://www.reddit.com/r/legaladvice/comments/3mpko0/facing_3_charges_worst_case_scenario_community/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
ELEVENTH AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P.
Dated as of March 29, 2004
This Eleventh Amendment to the First Amended and Restated Agreement of Limited Partnership of Essex Portfolio, L.P., as amended (as amended, the "Partnership Agreement"), dated as of the date shown above (the "Amendment"), is executed by Essex Property Trust, Inc., a Maryland corporation (the "General Partner"), as the General Partner and on behalf of the existing Limited Partners of Essex Portfolio, L.P. (the "Partnership") and any individuals to whom Series Z-1 Incentive Units are issued and who are admitted as Additional Limited Partners on or after the date of this Amendment in accordance with the terms of the Partnership Agreement and this Amendment.
RECITALS
WHEREAS, the Partnership was formed pursuant to the Partnership Agreement;
WHEREAS, the Partnership amended the Partnership Agreement in the Seventh Amendment to the Partnership Agreement (the "Seventh Amendment") to authorize the issuance of an aggregate amount of 400,000 Series Z-1 Incentive Units (the "Series Z-1 Incentive Units") of limited partnership interests in the Partnership with rights, terms and conditions as set forth in the Seventh Amendment;
WHEREAS, pursuant to the authority granted to the General Partner under the Partnership Agreement, the General Partner desires to amend the Partnership Agreement to provide that the Compensation Committee has the authority to determine the schedule of percentage increase in the Distribution Ratchet Percentage and the Conversion Ratchet Percentage for Series Z-1 Units at the time of issuance of the Series Z-1 Units so long as such schedule is no less favorable to the participating executives than the schedule set forth in the Limited Partnership Agreement immediately prior to such amendment.
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows:
Definitions . Capitalized terms used herein, unless otherwise defined herein, shall have the same meanings as set forth in the Partnership Agreement. Amended Definitions . Section 1.1 of the Partnership Agreement is hereby amended to delete the definitions of " Series Z-1 Conversion Ratchet Percentage " and " Series Z-1 Distribution Ratchet Percentage " in their entirety and to substitute the following definitions in their place:
"Series Z-1 Conversion Ratchet Percentage" with respect to any Series Z-1 Incentive Unit (i) shall equal 0% on the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, (ii) shall increase by twenty (20) percentage points on January 1 of the first calendar year after the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, on which (x) the holder of such Series Z-1 Incentive Unit is an employee of the General Partner and/or the Partnership and/or any subsidiary or affiliate thereof as of such January 1, (y) the Actual FFO Per Share of the General Partner for the calendar year preceding such January 1 is greater than or equal to the Series Z-1 Target FFO for such year, and (z) the Series Z-1 Conversion Ratchet Percentage prior to such increase is less than 100%, and (iii) shall increase ten (10) percentage points on January 1 of every calendar year thereafter on which the conditions in clauses (x), (y) and (z) of the immediately preceding clause (ii) are met; provided, however, that (a) the Compensation Committee may authorize the issuance of, or issue, Series Z-1 Incentive Units with a different schedule of percentage increase in the Conversion Ratchet Percentage than set forth in clauses (i), (ii) and (iii) above and such schedule shall be set forth in a subscription agreement executed at the time of issuance of the Series Z-1 Incentive Unit; and provided, further that such schedule is no less favorable to the Series Z-1 Partners than the schedule set forth in clauses (i), (ii)and (iii) above; and (b) if the Compensation Committee determines that Actual FFO Per Share is no longer an appropriate corporate performance parameter for establishing management objectives or that the applicable target levels are no longer feasible in light of factors or circumstances outside of the Partnership's or the General Partner's control (such as general economic conditions, legal/regulatory changes, war or similar events), it may, in its reasonable good faith discretion without any consent or other action on the part of the Series Z-1 Partners or any other Partners of the Partnership, revise and amend the requirement in (y) above (and any definitions involved therein) to reflect one or more different or additional parameters, objectives or performance measures, so long as the Compensation Committee, in its reasonable good faith discretion, determines that the revised or amended clause (y) is, considered as a whole, comparable or more effective as a means for analyzing the performance of the Partnership and incentivizing the Series Z-1 Partners (it being understood that such amended or restated clause (y) shall not be more difficult to achieve than the present requirements of clause (y)).
"Series Z-1 Distribution Ratchet Percentage" with respect to any Series Z-1 Incentive Unit (i) shall equal 10% on the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, (ii) shall increase, on January 1 of the first calendar year after the date of issuance of such Series Z-1 Incentive Unit, to (a) twenty-five percent (25%) if the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units also increases to 20% percent, or (b) fifteen percent (15%) if the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units remains at 0%, (iii) shall increase, to the extent it has not already done so, to twenty-five percent (25%) at such time as such Series Z-1 Conversion Ratchet Percentage is equal to 20%, and (iv) after such time as the Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units is equal to or greater than 30%, the Series Z-1 Distribution Ratchet Percentage shall be equal to the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units; provided, however that the Compensation Committee may authorize the issuance of, or issue, Series Z-1 Incentive Units with a different schedule of percentage increase in the Distribution Ratchet Percentage than set forth in clauses (i), (ii) and (iii) above and such schedule shall be set forth in a subscription agreement executed at the time of issuance of the Series Z-1 Incentive Unit; and provided, further that such schedule is no less favorable to the Series Z-1 Partners than the schedule set forth in clauses (i), (ii)and (iii) above.
Amendment to Section 5 of the Seventh Amendment . Section 5 of the Seventh Amendment is hereby amended to delete Section 5 in its entirety and to substitute the following in its place:
Admission of Series Z-1 Partners
. Effective immediately prior to the effectiveness of the next succeeding sentence, the capital accounts of the Partnership shall be adjusted to reflect each Partner's share of the net fair market value of the Partnership's assets (a "book-up") by adjusting the Gross Asset Values of all Partnership assets to their respective gross fair market values and allocating the amount of such adjustment as Net Property Gain or Net Property Loss pursuant to Section 2(b) or 2(c) of Exhibit E hereof. Each person who is issued a Series Z-1 Incentive Unit shall (a) make a Capital Commitment to the Partnership in the amount of $1.00 per Unit and (b) be admitted as an Additional Limited Partner in accordance with Sections 4.3 and 4.6 of the Partnership Agreement, holding that number of Series Z-1 Incentive Units as is set forth next to his or her name on Exhibit R . It is the intention of the Partnership that only directors, officers or other employees of the General Partner shall be issued Series Z-1 Incentive Units and only such persons may become Series Z-1 Partners. At the Partnership's election, taking into account the provisions of Section 402 of the Sarbanes-Oxley Act of 2002, the Partnership may allow a Series Z-1 Partner to have a positive Series Z-1 Clawback Amount; provided , however , that prior to a Series Z-1 Partner becoming a director or executive officer of the General Partner, within the meaning of Section 402 of the Sarbanes-Oxley Act of 2002, as amended, such Series Z-1 Partner shall pay to the Partnership the aggregate Capital Commitment for the Series Z-1 Incentive Units that have been issued to such Series Z-1 Partner. If the Partnership does not elect to allow a Series Z-1 Partner to have such a positive Series Z-1 Clawback Amount, then upon the issuance of any Series Z-1 Incentive Units to such Series Z-1 Partner, the Capital Commitment calculated on a unit-by-unit basis for such Series Z Incentive Units shall be immediately due and payable to the Partnership. Each person who is issued a Series Z-1 Incentive Unit shall become a party to the Partnership Agreement as a Limited Partner and shall be bound by all the terms, conditions and other provisions of the Partnership Agreement, as amended by this Amendment. Pursuant to Section 4.6(b) of the Partnership Agreement, the General Partner hereby consents to the admission of each Person who is issued a Series Z-1 Incentive Unit as an Additional Limited Partner of the Partnership. The admission of a Series Z-1 Partner shall become effective as of the date such Series Z-1 Partner executes a counterpart signature page to this Amendment (and such other written agreements as the General Partner may require), which shall also be the date on which the name of a Series Z-1 Partner is recorded on the books and records of the Partnership. The admission of a Series Z-1 Partner shall not require the consent or approval of any other Limited Partner.
Continuing Effect of Partnership Agreement . Except as modified herein, the Partnership Agreement is hereby ratified and confirmed in its entirety and shall remain and continue in full force and effect, provided , however , that to the extent there shall be a conflict between the provisions of the Partnership Agreement and this Amendment, the provisions in this Amendment will prevail. All references in any document to the Partnership Agreement shall mean the Partnership Agreement, as amended hereby. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. Facsimile signatures shall be deemed effective execution of this Agreement and may be relied upon as such by the other party. In the event facsimile signatures are delivered, originals of such signatures shall be delivered to the other party within three business days after execution.
IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date indicated above.
GENERAL PARTNER
ESSEX PROPERTY TRUST, INC., a Maryland corporation as General Partner
of Essex Portfolio, L.P. and on behalf of the existing Limited Partners
By:
Keith R. Guericke
Chief Executive Officer & President
--------------------------------------------------------------------------------
Exhibit E
[Exhibit E to the Eleventh Amendment is the same as Exhibit E to the Seventh Amendment]
--------------------------------------------------------------------------------
Exhibit R
List of Series Z-1 Unitholders
Series Z-1 Unitholder
Number of Units
Keith Guericke
10,607
Michael Schall
10,607
Craig Zimmerman
8,159
John Eudy
8,159
Bob Talbott
4,896
Jordan Ritter
4,896
John Burkart
4,569
Mark Mikl
4,569
Erik Alexander
16,971
Gerry Kelly
3,264
Maura Lederer
3,264
Bruce Knoblock
3,264
Bryan Meyer
3,264
Jamie Williams
9,464
--------------------------------------------------------------------------------
Exhibit S
Series Z-1 Target FFO amounts
The Series Z-1 Target FFO per share will be equal to the lesser of (a) 110% of the actual FFO per share in the prior year or (b) the following amounts:
2003
$4.195
2004
$4.61
2005
$5.07
2006
$5.58
2007
$6.14
2008
$6.75
2009
$7.42
2010
$8.16
2011
$8.97
2012
$9.87
-------------------------------------------------------------------------------- | [
"Exhibit 10.1 ELEVENTH AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P. Dated as of March 29, 2004 This Eleventh Amendment to the First Amended and Restated Agreement of Limited Partnership of Essex Portfolio, L.P., as amended (as amended, the \"Partnership Agreement\"), dated as of the date shown above (the \"Amendment\"), is executed by Essex Property Trust, Inc., a Maryland corporation (the \"General Partner\"), as the General Partner and on behalf of the existing Limited Partners of Essex Portfolio, L.P. (the \"Partnership\") and any individuals to whom Series Z-1 Incentive Units are issued and who are admitted as Additional Limited Partners on or after the date of this Amendment in accordance with the terms of the Partnership Agreement and this Amendment.",
"RECITALS WHEREAS, the Partnership was formed pursuant to the Partnership Agreement; WHEREAS, the Partnership amended the Partnership Agreement in the Seventh Amendment to the Partnership Agreement (the \"Seventh Amendment\") to authorize the issuance of an aggregate amount of 400,000 Series Z-1 Incentive Units (the \"Series Z-1 Incentive Units\") of limited partnership interests in the Partnership with rights, terms and conditions as set forth in the Seventh Amendment; WHEREAS, pursuant to the authority granted to the General Partner under the Partnership Agreement, the General Partner desires to amend the Partnership Agreement to provide that the Compensation Committee has the authority to determine the schedule of percentage increase in the Distribution Ratchet Percentage and the Conversion Ratchet Percentage for Series Z-1 Units at the time of issuance of the Series Z-1 Units so long as such schedule is no less favorable to the participating executives than the schedule set forth in the Limited Partnership Agreement immediately prior to such amendment. NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows: Definitions . Capitalized terms used herein, unless otherwise defined herein, shall have the same meanings as set forth in the Partnership Agreement. Amended Definitions .",
"Section 1.1 of the Partnership Agreement is hereby amended to delete the definitions of \" Series Z-1 Conversion Ratchet Percentage \" and \" Series Z-1 Distribution Ratchet Percentage \" in their entirety and to substitute the following definitions in their place: \"Series Z-1 Conversion Ratchet Percentage\" with respect to any Series Z-1 Incentive Unit (i) shall equal 0% on the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, (ii) shall increase by twenty (20) percentage points on January 1 of the first calendar year after the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, on which (x) the holder of such Series Z-1 Incentive Unit is an employee of the General Partner and/or the Partnership and/or any subsidiary or affiliate thereof as of such January 1, (y) the Actual FFO Per Share of the General Partner for the calendar year preceding such January 1 is greater than or equal to the Series Z-1 Target FFO for such year, and (z) the Series Z-1 Conversion Ratchet Percentage prior to such increase is less than 100%, and (iii) shall increase ten (10) percentage points on January 1 of every calendar year thereafter on which the conditions in clauses (x), (y) and (z) of the immediately preceding clause (ii) are met; provided, however, that (a) the Compensation Committee may authorize the issuance of, or issue, Series Z-1 Incentive Units with a different schedule of percentage increase in the Conversion Ratchet Percentage than set forth in clauses (i), (ii) and (iii) above and such schedule shall be set forth in a subscription agreement executed at the time of issuance of the Series Z-1 Incentive Unit; and provided, further that such schedule is no less favorable to the Series Z-1 Partners than the schedule set forth in clauses (i), (ii)and (iii) above; and (b) if the Compensation Committee determines that Actual FFO Per Share is no longer an appropriate corporate performance parameter for establishing management objectives or that the applicable target levels are no longer feasible in light of factors or circumstances outside of the Partnership's or the General Partner's control (such as general economic conditions, legal/regulatory changes, war or similar events), it may, in its reasonable good faith discretion without any consent or other action on the part of the Series Z-1 Partners or any other Partners of the Partnership, revise and amend the requirement in (y) above (and any definitions involved therein) to reflect one or more different or additional parameters, objectives or performance measures, so long as the Compensation Committee, in its reasonable good faith discretion, determines that the revised or amended clause (y) is, considered as a whole, comparable or more effective as a means for analyzing the performance of the Partnership and incentivizing the Series Z-1 Partners (it being understood that such amended or restated clause (y) shall not be more difficult to achieve than the present requirements of clause (y)).",
"\"Series Z-1 Distribution Ratchet Percentage\" with respect to any Series Z-1 Incentive Unit (i) shall equal 10% on the date of authorization of issuance, or upon issuance, of such Series Z-1 Incentive Unit, (ii) shall increase, on January 1 of the first calendar year after the date of issuance of such Series Z-1 Incentive Unit, to (a) twenty-five percent (25%) if the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units also increases to 20% percent, or (b) fifteen percent (15%) if the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units remains at 0%, (iii) shall increase, to the extent it has not already done so, to twenty-five percent (25%) at such time as such Series Z-1 Conversion Ratchet Percentage is equal to 20%, and (iv) after such time as the Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units is equal to or greater than 30%, the Series Z-1 Distribution Ratchet Percentage shall be equal to the Series Z-1 Conversion Ratchet Percentage with respect to such Series Z-1 Incentive Units; provided, however that the Compensation Committee may authorize the issuance of, or issue, Series Z-1 Incentive Units with a different schedule of percentage increase in the Distribution Ratchet Percentage than set forth in clauses (i), (ii) and (iii) above and such schedule shall be set forth in a subscription agreement executed at the time of issuance of the Series Z-1 Incentive Unit; and provided, further that such schedule is no less favorable to the Series Z-1 Partners than the schedule set forth in clauses (i), (ii)and (iii) above. Amendment to Section 5 of the Seventh Amendment .",
"Section 5 of the Seventh Amendment is hereby amended to delete Section 5 in its entirety and to substitute the following in its place: Admission of Series Z-1 Partners . Effective immediately prior to the effectiveness of the next succeeding sentence, the capital accounts of the Partnership shall be adjusted to reflect each Partner's share of the net fair market value of the Partnership's assets (a \"book-up\") by adjusting the Gross Asset Values of all Partnership assets to their respective gross fair market values and allocating the amount of such adjustment as Net Property Gain or Net Property Loss pursuant to Section 2(b) or 2(c) of Exhibit E hereof. Each person who is issued a Series Z-1 Incentive Unit shall (a) make a Capital Commitment to the Partnership in the amount of $1.00 per Unit and (b) be admitted as an Additional Limited Partner in accordance with Sections 4.3 and 4.6 of the Partnership Agreement, holding that number of Series Z-1 Incentive Units as is set forth next to his or her name on Exhibit R .",
"It is the intention of the Partnership that only directors, officers or other employees of the General Partner shall be issued Series Z-1 Incentive Units and only such persons may become Series Z-1 Partners. At the Partnership's election, taking into account the provisions of Section 402 of the Sarbanes-Oxley Act of 2002, the Partnership may allow a Series Z-1 Partner to have a positive Series Z-1 Clawback Amount; provided , however , that prior to a Series Z-1 Partner becoming a director or executive officer of the General Partner, within the meaning of Section 402 of the Sarbanes-Oxley Act of 2002, as amended, such Series Z-1 Partner shall pay to the Partnership the aggregate Capital Commitment for the Series Z-1 Incentive Units that have been issued to such Series Z-1 Partner. If the Partnership does not elect to allow a Series Z-1 Partner to have such a positive Series Z-1 Clawback Amount, then upon the issuance of any Series Z-1 Incentive Units to such Series Z-1 Partner, the Capital Commitment calculated on a unit-by-unit basis for such Series Z Incentive Units shall be immediately due and payable to the Partnership.",
"Each person who is issued a Series Z-1 Incentive Unit shall become a party to the Partnership Agreement as a Limited Partner and shall be bound by all the terms, conditions and other provisions of the Partnership Agreement, as amended by this Amendment. Pursuant to Section 4.6(b) of the Partnership Agreement, the General Partner hereby consents to the admission of each Person who is issued a Series Z-1 Incentive Unit as an Additional Limited Partner of the Partnership. The admission of a Series Z-1 Partner shall become effective as of the date such Series Z-1 Partner executes a counterpart signature page to this Amendment (and such other written agreements as the General Partner may require), which shall also be the date on which the name of a Series Z-1 Partner is recorded on the books and records of the Partnership.",
"The admission of a Series Z-1 Partner shall not require the consent or approval of any other Limited Partner. Continuing Effect of Partnership Agreement . Except as modified herein, the Partnership Agreement is hereby ratified and confirmed in its entirety and shall remain and continue in full force and effect, provided , however , that to the extent there shall be a conflict between the provisions of the Partnership Agreement and this Amendment, the provisions in this Amendment will prevail.",
"All references in any document to the Partnership Agreement shall mean the Partnership Agreement, as amended hereby. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. Facsimile signatures shall be deemed effective execution of this Agreement and may be relied upon as such by the other party.",
"In the event facsimile signatures are delivered, originals of such signatures shall be delivered to the other party within three business days after execution. IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date indicated above. GENERAL PARTNER ESSEX PROPERTY TRUST, INC., a Maryland corporation as General Partner of Essex Portfolio, L.P. and on behalf of the existing Limited Partners By: Keith R. Guericke Chief Executive Officer & President -------------------------------------------------------------------------------- Exhibit E [Exhibit E to the Eleventh Amendment is the same as Exhibit E to the Seventh Amendment] -------------------------------------------------------------------------------- Exhibit R List of Series Z-1 Unitholders Series Z-1 Unitholder Number of Units Keith Guericke 10,607 Michael Schall 10,607 Craig Zimmerman 8,159 John Eudy 8,159 Bob Talbott 4,896 Jordan Ritter 4,896 John Burkart 4,569 Mark Mikl 4,569 Erik Alexander 16,971 Gerry Kelly 3,264 Maura Lederer 3,264 Bruce Knoblock 3,264 Bryan Meyer 3,264 Jamie Williams 9,464 -------------------------------------------------------------------------------- Exhibit S Series Z-1 Target FFO amounts The Series Z-1 Target FFO per share will be equal to the lesser of (a) 110% of the actual FFO per share in the prior year or (b) the following amounts: 2003 $4.195 2004 $4.61 2005 $5.07 2006 $5.58 2007 $6.14 2008 $6.75 2009 $7.42 2010 $8.16 2011 $8.97 2012 $9.87 --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 29, 2006
Charles R. Fulbruge III Clerk No. 05-61093 Summary Calendar
NOOR ALI BARKAT,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the Board of Immigration Appeals BIA No. A70 781 945
Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Noor Ali Barkat, a citizen of Pakistan, petitions this court
for review of an order denying his applications for asylum,
withholding of removal under the Immigration and Nationality Act
(INA), withholding of removal under the Convention Against Torture
(CAT), and cancellation of removal. The Board of Immigration
Appeals (BIA) adopted and affirmed the denial of relief by the
* Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. immigration judge (IJ). As Barkat has not challenged the denial of
his application for asylum, he has abandoned that issue. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (issue not
briefed by petitioner is deemed abandoned).
Barkat argues that: (1) the IJ’s denial of his request for a
continuance was an abuse of discretion because Barkat had a pending
labor certification request; (2) the IJ’s denial of his request for
a continuance and the enforcement of the National Security
Entry/Exit Registration System (NSEERS) violated Barkat’s equal
protection and due process rights; (3) the IJ’s denial of Barkat’s
request for cancellation of removal was erroneous; (4) the IJ’s
denial of Barkat’s request for withholding of removal was
erroneous; and (5) the IJ erred by failing to conduct a hearing
regarding his motion for a continuance and by striking his witness
list.
Barkat’s challenge to the denial of his motion for a
continuance based upon 8 U.S.C. § 1255(i) and his constitutional
rights are foreclosed under Ahmed v. Gonzales, 447 F.3d 433, 437-40
(5th Cir. 2006). Because Barkat’s challenge to the denial of his
application for cancellation of removal solely implicates the
exercise of discretion under 8 U.S.C. § 1229b, this court lacks
jurisdiction to consider this issue. Rueda v. Ashcroft, 380 F.3d
831, 831 (5th Cir. 2004). The assertions contained in Barkat’s
testimony were not sufficiently compelling to warrant overturning
2 the BIA’s decision denying withholding of removal under either the
INA or the CAT. See Bah v. Ashcroft, 341 F.3d 348, 352 (5th Cir.
2003); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Barkat
has also failed to show that the IJ violated the local rules when
denying his motion for a continuance and striking his witness list.
Moreover, Barkat’s due process challenge regarding the striking of
his witness list fails because he never made any proffer as to any
of the testimony of any listed witness and has not otherwise made
any initial showing of substantial prejudice. See Anwar v. INS,
116 F.3d 140, 144 (5th Cir. 1997).
Barkat’s petition for review is DENIED.
3 | 04-25-2010 | [
"United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 29, 2006 Charles R. Fulbruge III Clerk No. 05-61093 Summary Calendar NOOR ALI BARKAT, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A70 781 945 Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges. PER CURIAM:* Noor Ali Barkat, a citizen of Pakistan, petitions this court for review of an order denying his applications for asylum, withholding of removal under the Immigration and Nationality Act (INA), withholding of removal under the Convention Against Torture (CAT), and cancellation of removal. The Board of Immigration Appeals (BIA) adopted and affirmed the denial of relief by the * Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. immigration judge (IJ).",
"As Barkat has not challenged the denial of his application for asylum, he has abandoned that issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (issue not briefed by petitioner is deemed abandoned). Barkat argues that: (1) the IJ’s denial of his request for a continuance was an abuse of discretion because Barkat had a pending labor certification request; (2) the IJ’s denial of his request for a continuance and the enforcement of the National Security Entry/Exit Registration System (NSEERS) violated Barkat’s equal protection and due process rights; (3) the IJ’s denial of Barkat’s request for cancellation of removal was erroneous; (4) the IJ’s denial of Barkat’s request for withholding of removal was erroneous; and (5) the IJ erred by failing to conduct a hearing regarding his motion for a continuance and by striking his witness list. Barkat’s challenge to the denial of his motion for a continuance based upon 8 U.S.C. § 1255(i) and his constitutional rights are foreclosed under Ahmed v. Gonzales, 447 F.3d 433, 437-40 (5th Cir. 2006). Because Barkat’s challenge to the denial of his application for cancellation of removal solely implicates the exercise of discretion under 8 U.S.C. § 1229b, this court lacks jurisdiction to consider this issue.",
"Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). The assertions contained in Barkat’s testimony were not sufficiently compelling to warrant overturning 2 the BIA’s decision denying withholding of removal under either the INA or the CAT. See Bah v. Ashcroft, 341 F.3d 348, 352 (5th Cir. 2003); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Barkat has also failed to show that the IJ violated the local rules when denying his motion for a continuance and striking his witness list. Moreover, Barkat’s due process challenge regarding the striking of his witness list fails because he never made any proffer as to any of the testimony of any listed witness and has not otherwise made any initial showing of substantial prejudice. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). Barkat’s petition for review is DENIED. 3"
]
| https://www.courtlistener.com/api/rest/v3/opinions/46843/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0705274
Decision Date: 02/23/07 Archive Date: 02/27/07
DOCKET NO. 05-06 589 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to service connection for residuals of a left
shoulder injury to include a rotator cuff tear.
3. Entitlement to service connection for residuals of a left
upper arm injury.
4. Entitlement to service connection for residuals of a low
back injury.
REPRESENTATION
Veteran represented by: South Dakota Division of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Veteran and T. B.
ATTORNEY FOR THE BOARD
T. Azizi-Barcelo, Associate Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
September 1966 to June 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in June 2004 of a Department
of Veterans Affairs (VA) Regional Office (RO).
A hearing was held in September 2005 before the undersigned
Veterans Law Judge. A transcript of that hearing is of
record.
FINDINGS OF FACT
1. A left shoulder disability to include a rotator cuff tear
was not affirmatively shown to have had onset during service,
and the current left shoulder disability, first diagnosed
after service, is unrelated to a disease, injury, or event of
service origin.
2. A left upper arm disability is not currently shown.
3. A low back disability, arthritis and disc degeneration of
the lumbosacral spine, was not affirmatively shown to have
had onset during service; arthritis was not manifested to a
compensable degree within one year after the veteran's
separation from service; and the current low back disability,
first diagnosed after service, is unrelated to a disease,
injury, or event of service origin.
CONCLUSIONS OF LAW
1. A left shoulder injury to include a rotator cuff tear was
not incurred in or aggravated by service. 38 U.S.C.A. §§
1110, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. § 3.303
(2006).
2. A left upper arm disability was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.303 (2006).
3. A low back disability was not incurred in or aggravated by
service, and service connection for arthritis as a chronic
disease may not be presumed. 38 U.S.C.A. §§ 1110, 1112,
5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2006).
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide. Under 38 C.F.R. § 3.159, VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 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.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The RO provided pre-adjudication VCAA notice by letter, dated
in March 2004. In the notice, the veteran was informed of
the type of evidence needed to substantiate the claims for
service connection, namely, evidence of an injury or disease
or event, causing an injury or disease, during service;
evidence of current disability; evidence of a relationship
between the current disability and the injury or disease or
event, causing an injury or disease, during service. The
veteran was also informed that VA would obtain service
records, VA records, and records of other Federal agencies,
and that he could submit other records not in the custody of
a Federal agency, such as private medical records, or with
his authorization VA would obtain any such records on his
behalf. He was also asked to submit evidence, which would
include that in his possession, in support of his claim. The
notice included the general provision for the effective date
of the claims, that is, the date of receipt of the claims.
As for content of the VCAA notice, the document substantially
complied with the specificity requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate a claim and the relative duties of VA and the
claimant to obtain evidence); of Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies VCAA
notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004)
(38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19
Vet.App. 473 (notice of the elements of the claim, except for
the degree of disability assignable).
To the extent that the provision for the degree of disability
assignable was not provided, since the claims are denied, no
disability ratings will be assigned, so there can be no
possibility of any prejudice to the veteran with respect to
the notice required under Dingess at 19 Vet. App. 473.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. The veteran was afforded VA
examinations. Additionally, the service medical records are
associated with the claims file, as are the identified and
available relevant post-service medical records. The Board
finds that the RO has obtained all identified evidence to the
extent possible. As there is no indication of the existence
of additional evidence to substantiate the claim, no further
assistance to the veteran is required to comply with the duty
to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
On entrance examination, the veteran reported a history of a
left elbow fracture at age 16, and the clinical evaluation of
the upper extremities was normal. On physical examination
for airborne training in December 1996, there was full
strength and range of motion of the left elbow. The
remainder of the service medical records, including the
report of separation examination, contain no complaint,
finding, or history of a left shoulder, left arm, or low back
injury or abnormality.
After service, VA records show that in October 1989 the
veteran was to avoid straining, twisting, or heavy lifting
because of neck, back, and chest wall problems. In April
1990, the veteran complained of back pain. In August 1990,
X-rays revealed arthritis of the lumbar spine and disc
degeneration of the lumbosacral spine at the L5-S1 level;
there was no evidence of abnormality of the cervical spine.
On VA examination in September 1990, the veteran complained
of back pain, and the diagnosis was low back pain, probably
secondary to degenerative changes. In June 1992, the
assessment was chronic low back pain.
In October 2002, the veteran reported a history of back pain
after he jumped from a helicopter in 1968 with the pain
starting up again in 1984 and back pain ever since. X-rays
revealed arthritis of the lumbar spine and disc degeneration
of the lumbosacral spine at the L5-S1 level; there was no
evidence of abnormality of the cervical spine.
In August 2003, veteran complained of pain in his left
shoulder. On an orthopedic consultation in September 2003,
the veteran complained of left shoulder pain with weakness in
his left arm of about a year's duration. In January 2004, an
arthogram revealed a rotator cuff tear of the left shoulder.
On VA examination in April 2004, the veteran stated that he
started experiencing back pain after lifting a tire and that
he probably injured his left shoulder in the same incident.
The diagnoses were degenerative disease of the lumbar spine
and left shoulder rotator cuff tear.
In September 2005, the veteran testified that while in Quin
Loi he ran for shelter from a mortar attack and fell in a
bunker injuring his shoulder, that he injured his lower back
in Vietnam when he jumped off a helicopter and fell, and that
he did not seek medical attention for either injury.
Principles of Service Connection
Service connection may be granted for a disability resulting
from an injury or disease incurred or aggravated in active
military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Where a veteran, who served for 90 days or more, has a
chronic disease, such as arthritis, which becomes manifest to
a degree of 10 percent or more within the one year period
from the date of separation from service, service connection
may be presumed even though there is no evidence of such
disease during the period of service. 38 U.S.C.A. § 1112; 38
C.F.R. §§ 3.307, 3.309.
Stated succinctly, for service connection to be awarded,
there must be (1) medical evidence of a current disability;
(2) medical evidence, or in certain circumstances, lay
evidence of an in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet.App. 247,
253 (1999). The absence of any one element will result in the
denial of service connection. Coburn v. Nicholson, 19 Vet.
App. 427 (2006).
Residuals of a Left Shoulder Injury to include a Rotator Cuff
Tear
Residuals of a Left Upper Arm Injury
The service medical records do not document a left shoulder
or left upper arm injury or any related abnormality.
After service, left shoulder pain with weakness in his left
arm of about a year's duration was first documented in August
2003, and a rotator cuff tear was identified in January 2004,
more than 30 years after service. The absence of documented
complaints of left shoulder or left upper arm pain from 1969
to 2003 weighs against the claims that either condition is
related to service. 38 C.F.R. § 3.303(b); Maxon v. West,
12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to
consider the veteran's entire medical history, including a
lengthy period of absence of complaints.).
Moreover, although the post-service medical records show
complaints of left arm pain and weakness, it does not contain
a diagnosis of a left arm disability. Pain, alone, without a
sufficient factual showing that the pain is derived from an
in-service disease or injury is not a disability. Sanchez-
Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in
part and remanded on other grounds sub nom. Sanchez-Benitez
v. Principi, 239 F.3d 1356 (Fed. Cir. 2001)).
In the absence of proof of any present disability, there is
no valid claim of service connection for residuals of a left
upper arm injury. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
As for the veteran's statements and testimony, to the extent
that the veteran relates his current left shoulder and left
upper arm problems to service, where as here, the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence is required to support
the claims. The veteran as a lay person is not competent to
offer a medical diagnosis or opinion and consequently the
statements and testimony do not constitute favorable medical
evidence to support the claims. Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993).
As the Board may consider only independent medical evidence
to support its findings, and, as there is no favorable
medical evidence to support the claims for the reasons
articulated, the preponderance of the evidence is against the
claims, and the benefit-of-the-doubt standard of proof does
not apply. 38 U.S.C.A. § 5107(b).
Residuals of a Low Back Injury
The service medical records do not document a low back injury
or any related abnormality.
After service, although the veteran gave a history of
recurrent back starting in 1984, low back pain was first
documented in 1989 and arthritis of the lumbar spine and disc
degeneration of the lumbosacral spine were first shown in
August 1990, more than 20 years after service, and well
beyond the one-year period for presumptive service connection
for arthritis under 38 C.F.R. §§ 3.307 and 3.309. Also, the
absence of documented complaints of low back pain from 1969
to 1984 weighs against the claim that the current low back
disability is related to service. 38 C.F.R. § 3.303(b);
Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub
nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It
was proper to consider the veteran's entire medical history,
including a lengthy period of absence of complaints.).
To the extent that in his statements and testimony, the
veteran related his current low back problems to an injury
during service, where as here, the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required to support the claim. The
veteran as a lay person is not competent to offer a medical
diagnosis or opinion and consequently the statements and
testimony do not constitute favorable medical evidence in
support of the claim. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
As the Board may consider only independent medical evidence
to support its findings, and, as there is no favorable
medical evidence to support the claim for the reasons
articulated, the preponderance of the evidence is against the
claim, and the benefit-of-the-doubt standard of proof does
not apply. 38 U.S.C.A. § 5107(b).
ORDER
Service connection for residuals of a left shoulder injury to
include a rotator cuff tear is denied.
Service connection for residuals of a left upper arm injury
is denied.
Service connection for residuals of a low back injury is
denied.
REMAND
On VA examination in May 2004, the diagnosis was post-
traumatic stress disorder based on the history provided by
the veteran. The examiner noted that the events described by
the veteran had yet to be verified.
In September 2005, the veteran testified that although he was
trained as a radio operator when he arrived in Vietnam he
initially served as a truck driver and came under enemy fire
on two occasions, but could not remember specific details of
the circumstances. He also stated that he served as a radio
operator in a combat unit, that he saw friends and other
people killed and injured, but could not remember their
names. He did state that while stationed in Quin Loi he ran
for shelter from a mortar attack and fell in a bunker
injuring his shoulder.
Although the veteran has given somewhat anecdotal information
of the in-service stressor, which can not be researched.
Records for the veteran's unit may corroborate the veteran's
assertion of an enemy mortar attack. The veteran's presence
with his unit at the time the attacks occurred can
corroborated his statement that he experienced such attacks
personally. Pentecost v. Principi, 16 Vet. App. 124 (2002).
For these reason, under the duty to assist, further
evidentiary development is needed. Accordingly, the claim of
service connection for post-traumatic stress disorder is
remanded for the following action:
1. Ensure VCAA compliance with Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
2. Request a unit history and lessons
learned for the 324th Signal Company (RR)
from April to May 1968 and for Company D
or Headquarters Company, 52d Signal
Battalion from May 1968 to May 1969 for
verification of a mortar attack at Quin
Loi or Quan Loi or Long Binh from the
U.S. Army and Joint Services Research
Center (JSRRC).
3. If an in-service stressor is verified,
schedule the veteran for VA psychiatric
examination to determine whether he has
post-traumatic stress disorder under the
criteria of DSM-IV, based upon the
verified stressor only. The veteran's
claims file must be made available to the
examiner for review.
4. After the above has been completed,
adjudicate the claim. If the
determination remains adverse, furnish
the veteran a supplemental statement of
the case, and return the case to the
Board.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
____________________________________________
GEORGE E. GUIDO JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 02-23-2007 | [
"Citation Nr: 0705274 Decision Date: 02/23/07 Archive Date: 02/27/07 DOCKET NO. 05-06 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for residuals of a left shoulder injury to include a rotator cuff tear. 3. Entitlement to service connection for residuals of a left upper arm injury. 4. Entitlement to service connection for residuals of a low back injury. REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and T. B. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1966 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in September 2005 before the undersigned Veterans Law Judge. A transcript of that hearing is of record.",
"FINDINGS OF FACT 1. A left shoulder disability to include a rotator cuff tear was not affirmatively shown to have had onset during service, and the current left shoulder disability, first diagnosed after service, is unrelated to a disease, injury, or event of service origin. 2. A left upper arm disability is not currently shown. 3. A low back disability, arthritis and disc degeneration of the lumbosacral spine, was not affirmatively shown to have had onset during service; arthritis was not manifested to a compensable degree within one year after the veteran's separation from service; and the current low back disability, first diagnosed after service, is unrelated to a disease, injury, or event of service origin. CONCLUSIONS OF LAW 1. A left shoulder injury to include a rotator cuff tear was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp.",
"2006); 38 C.F.R. § 3.303 (2006). 2. A left upper arm disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303 (2006). 3. A low back disability was not incurred in or aggravated by service, and service connection for arthritis as a chronic disease may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159.",
"Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.",
"112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in March 2004. In the notice, the veteran was informed of the type of evidence needed to substantiate the claims for service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The veteran was also informed that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. He was also asked to submit evidence, which would include that in his possession, in support of his claim. The notice included the general provision for the effective date of the claims, that is, the date of receipt of the claims. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet.",
"App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet.App. 473 (notice of the elements of the claim, except for the degree of disability assignable). To the extent that the provision for the degree of disability assignable was not provided, since the claims are denied, no disability ratings will be assigned, so there can be no possibility of any prejudice to the veteran with respect to the notice required under Dingess at 19 Vet. App. 473. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran was afforded VA examinations. Additionally, the service medical records are associated with the claims file, as are the identified and available relevant post-service medical records.",
"The Board finds that the RO has obtained all identified evidence to the extent possible. As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the veteran is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background On entrance examination, the veteran reported a history of a left elbow fracture at age 16, and the clinical evaluation of the upper extremities was normal. On physical examination for airborne training in December 1996, there was full strength and range of motion of the left elbow. The remainder of the service medical records, including the report of separation examination, contain no complaint, finding, or history of a left shoulder, left arm, or low back injury or abnormality.",
"After service, VA records show that in October 1989 the veteran was to avoid straining, twisting, or heavy lifting because of neck, back, and chest wall problems. In April 1990, the veteran complained of back pain. In August 1990, X-rays revealed arthritis of the lumbar spine and disc degeneration of the lumbosacral spine at the L5-S1 level; there was no evidence of abnormality of the cervical spine. On VA examination in September 1990, the veteran complained of back pain, and the diagnosis was low back pain, probably secondary to degenerative changes. In June 1992, the assessment was chronic low back pain.",
"In October 2002, the veteran reported a history of back pain after he jumped from a helicopter in 1968 with the pain starting up again in 1984 and back pain ever since. X-rays revealed arthritis of the lumbar spine and disc degeneration of the lumbosacral spine at the L5-S1 level; there was no evidence of abnormality of the cervical spine. In August 2003, veteran complained of pain in his left shoulder. On an orthopedic consultation in September 2003, the veteran complained of left shoulder pain with weakness in his left arm of about a year's duration. In January 2004, an arthogram revealed a rotator cuff tear of the left shoulder.",
"On VA examination in April 2004, the veteran stated that he started experiencing back pain after lifting a tire and that he probably injured his left shoulder in the same incident. The diagnoses were degenerative disease of the lumbar spine and left shoulder rotator cuff tear. In September 2005, the veteran testified that while in Quin Loi he ran for shelter from a mortar attack and fell in a bunker injuring his shoulder, that he injured his lower back in Vietnam when he jumped off a helicopter and fell, and that he did not seek medical attention for either injury. Principles of Service Connection Service connection may be granted for a disability resulting from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R.",
"§ 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word \"chronic.\" Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).",
"Where a veteran, who served for 90 days or more, has a chronic disease, such as arthritis, which becomes manifest to a degree of 10 percent or more within the one year period from the date of separation from service, service connection may be presumed even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Stated succinctly, for service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet.App. 247, 253 (1999).",
"The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Residuals of a Left Shoulder Injury to include a Rotator Cuff Tear Residuals of a Left Upper Arm Injury The service medical records do not document a left shoulder or left upper arm injury or any related abnormality. After service, left shoulder pain with weakness in his left arm of about a year's duration was first documented in August 2003, and a rotator cuff tear was identified in January 2004, more than 30 years after service.",
"The absence of documented complaints of left shoulder or left upper arm pain from 1969 to 2003 weighs against the claims that either condition is related to service. 38 C.F.R. § 3.303(b); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Moreover, although the post-service medical records show complaints of left arm pain and weakness, it does not contain a diagnosis of a left arm disability.",
"Pain, alone, without a sufficient factual showing that the pain is derived from an in-service disease or injury is not a disability. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001)). In the absence of proof of any present disability, there is no valid claim of service connection for residuals of a left upper arm injury. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As for the veteran's statements and testimony, to the extent that the veteran relates his current left shoulder and left upper arm problems to service, where as here, the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required to support the claims. The veteran as a lay person is not competent to offer a medical diagnosis or opinion and consequently the statements and testimony do not constitute favorable medical evidence to support the claims. Grottveit v. Brown, 5 Vet.",
"App. 91, 93 (1993). As the Board may consider only independent medical evidence to support its findings, and, as there is no favorable medical evidence to support the claims for the reasons articulated, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Residuals of a Low Back Injury The service medical records do not document a low back injury or any related abnormality. After service, although the veteran gave a history of recurrent back starting in 1984, low back pain was first documented in 1989 and arthritis of the lumbar spine and disc degeneration of the lumbosacral spine were first shown in August 1990, more than 20 years after service, and well beyond the one-year period for presumptive service connection for arthritis under 38 C.F.R. §§ 3.307 and 3.309.",
"Also, the absence of documented complaints of low back pain from 1969 to 1984 weighs against the claim that the current low back disability is related to service. 38 C.F.R. § 3.303(b); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). To the extent that in his statements and testimony, the veteran related his current low back problems to an injury during service, where as here, the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required to support the claim. The veteran as a lay person is not competent to offer a medical diagnosis or opinion and consequently the statements and testimony do not constitute favorable medical evidence in support of the claim.",
"Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As the Board may consider only independent medical evidence to support its findings, and, as there is no favorable medical evidence to support the claim for the reasons articulated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a left shoulder injury to include a rotator cuff tear is denied. Service connection for residuals of a left upper arm injury is denied. Service connection for residuals of a low back injury is denied.",
"REMAND On VA examination in May 2004, the diagnosis was post- traumatic stress disorder based on the history provided by the veteran. The examiner noted that the events described by the veteran had yet to be verified. In September 2005, the veteran testified that although he was trained as a radio operator when he arrived in Vietnam he initially served as a truck driver and came under enemy fire on two occasions, but could not remember specific details of the circumstances. He also stated that he served as a radio operator in a combat unit, that he saw friends and other people killed and injured, but could not remember their names. He did state that while stationed in Quin Loi he ran for shelter from a mortar attack and fell in a bunker injuring his shoulder. Although the veteran has given somewhat anecdotal information of the in-service stressor, which can not be researched. Records for the veteran's unit may corroborate the veteran's assertion of an enemy mortar attack. The veteran's presence with his unit at the time the attacks occurred can corroborated his statement that he experienced such attacks personally. Pentecost v. Principi, 16 Vet. App. 124 (2002). For these reason, under the duty to assist, further evidentiary development is needed.",
"Accordingly, the claim of service connection for post-traumatic stress disorder is remanded for the following action: 1. Ensure VCAA compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Request a unit history and lessons learned for the 324th Signal Company (RR) from April to May 1968 and for Company D or Headquarters Company, 52d Signal Battalion from May 1968 to May 1969 for verification of a mortar attack at Quin Loi or Quan Loi or Long Binh from the U.S. Army and Joint Services Research Center (JSRRC). 3. If an in-service stressor is verified, schedule the veteran for VA psychiatric examination to determine whether he has post-traumatic stress disorder under the criteria of DSM-IV, based upon the verified stressor only.",
"The veteran's claims file must be made available to the examiner for review. 4. After the above has been completed, adjudicate the claim. If the determination remains adverse, furnish the veteran a supplemental statement of the case, and return the case to the Board. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ GEORGE E. GUIDO JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Mercure, J. Appeal from an order of the Supreme Court (Demarest, J.), entered November 8, 1996 in St. Lawrence County, which granted defendant Kirk Hollis’ motion to dismiss the complaint for lack of prosecution. In view of plaintiffs failure to file a note of issue or to move to extend the period for compliance within 90 days following plaintiffs June 29, 1996 receipt of defendants’ demand pursuant to CPLR 3216 (b) (3) and plaintiffs further failure to oppose defendants’ dismissal motion with a justifiable excuse and an adequate showing of merit, Supreme Court acted well within its discretion in dismissing the complaint (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Hogan v City of Kingston, 243 AD2d 981, 982-983). In our view, the fact that Supreme Court had, in February 1996, stayed the action pending plaintiffs joinder of a necessary party does not excuse plaintiffs inaction. Notably, plaintiff has come forward with no justification for its failure to promptly comply with the order directing joinder. In addition, we agree with Supreme Court that plaintiff has failed to establish merit to its claims, asserted against defendant Kirk Hollis, an officer and shareholder of the corporation that dealt with plaintiff. Plaintiffs conclusory allegations concerning Hollis’ diversion of trust funds find no competent support in the record. Cardona, P. J., White, Peters and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs. | 01-13-2022 | [
"Mercure, J. Appeal from an order of the Supreme Court (Demarest, J. ), entered November 8, 1996 in St. Lawrence County, which granted defendant Kirk Hollis’ motion to dismiss the complaint for lack of prosecution. In view of plaintiffs failure to file a note of issue or to move to extend the period for compliance within 90 days following plaintiffs June 29, 1996 receipt of defendants’ demand pursuant to CPLR 3216 (b) (3) and plaintiffs further failure to oppose defendants’ dismissal motion with a justifiable excuse and an adequate showing of merit, Supreme Court acted well within its discretion in dismissing the complaint (see, Baczkowski v Collins Constr.",
"Co., 89 NY2d 499, 503; Hogan v City of Kingston, 243 AD2d 981, 982-983). In our view, the fact that Supreme Court had, in February 1996, stayed the action pending plaintiffs joinder of a necessary party does not excuse plaintiffs inaction. Notably, plaintiff has come forward with no justification for its failure to promptly comply with the order directing joinder. In addition, we agree with Supreme Court that plaintiff has failed to establish merit to its claims, asserted against defendant Kirk Hollis, an officer and shareholder of the corporation that dealt with plaintiff. Plaintiffs conclusory allegations concerning Hollis’ diversion of trust funds find no competent support in the record. Cardona, P. J., White, Peters and Carpinello, JJ., concur.",
"Ordered that the order is affirmed, with costs."
]
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Case 1:18-cv-00766-AWI-SKO Document 56 Filed 08/10/20 Page 1 of 2
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10
11 CHRISTOPHER LIPSEY, JR., No. 1:18-cv-00766-AWI-SKO (PC)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION
14 B. SEITZ, et al., (Doc. 52)
15 Defendants. 16
17 Plaintiff Christopher Lipsey, Jr., is a state prisoner appearing pro se and in forma pauperis
18 in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States
19 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
20 On March 17, 2020, the assigned magistrate judge issued findings and recommendations,
21 recommending that Plaintiff’s motion for a preliminary injunction (Doc. 30) be denied. (Doc. 35.)
22 Plaintiff failed to file objections, and the Court adopted the findings and recommendations on
23 June 26, 2020. (Doc. 46.)
24 On August 3, 2020, Plaintiff filed a motion for reconsideration of the Court’s June 26,
25 2020 order. (Doc. 52.) Plaintiff argues that the magistrate judge erroneously relied on federal law
26 in recommending denial of the preliminary injunction, when he had relied on state law in his
27 motion. See id. at 2-3. Plaintiff also provides “new evidence” regarding his claims of retaliation:
28 he alleges that, although he had a package delivered to High Desert State Prison (HDSP) on April Case 1:18-cv-00766-AWI-SKO Document 56 Filed 08/10/20 Page 2 of 2
1 21, 2020, officials at HDSP informed him they had no package belonging to him on July 7, 2020.
2 (Id. at 4-5.)
3 First, federal law governs the procedural question of when a preliminary injunction will
4 issue. Flood v. Clearone Communs., Inc., 618 F.3d 1110, 1117 (10th Cir. 2010); Cretified
5 Restoration Dry Cleaning Networks, LLC v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007).
6 Thus, reliance on the federal procedural law was not erroneous.
7 Second, Plaintiff’s “new evidence” fails to show the Court erred in adopting the
8 recommendations or provide other grounds for granting his motion for reconsideration. Plaintiff
9 alleges that property he mailed to HDSP is now missing. (See Doc. 52 at 4-5.) The allegation does 10 not show that he is, or was, likely to suffer irreparable harm in the absence of his requested relief.
11 If Defendant indeed discarded or destroyed Plaintiff’s property in retaliation for filing this
12 lawsuit, as Plaintiff implies, Plaintiff may file a new action for damages.
13 Based on the foregoing, Plaintiff’s motion for reconsideration (Doc. 52) is denied.
14 IT IS SO ORDERED. 15
16 Dated: August 10, 2020 SENIOR DISTRICT JUDGE 17
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19 20
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25
26 27
28
2 | 2020-08-10 | [
"Case 1:18-cv-00766-AWI-SKO Document 56 Filed 08/10/20 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., No. 1:18-cv-00766-AWI-SKO (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION 14 B. SEITZ, et al., (Doc. 52) 15 Defendants. 16 17 Plaintiff Christopher Lipsey, Jr., is a state prisoner appearing pro se and in forma pauperis 18 in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States 19 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 17, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending that Plaintiff’s motion for a preliminary injunction (Doc.",
"30) be denied. (Doc. 35.) 22 Plaintiff failed to file objections, and the Court adopted the findings and recommendations on 23 June 26, 2020. (Doc. 46.) 24 On August 3, 2020, Plaintiff filed a motion for reconsideration of the Court’s June 26, 25 2020 order. (Doc. 52.) Plaintiff argues that the magistrate judge erroneously relied on federal law 26 in recommending denial of the preliminary injunction, when he had relied on state law in his 27 motion. See id. at 2-3. Plaintiff also provides “new evidence” regarding his claims of retaliation: 28 he alleges that, although he had a package delivered to High Desert State Prison (HDSP) on April Case 1:18-cv-00766-AWI-SKO Document 56 Filed 08/10/20 Page 2 of 2 1 21, 2020, officials at HDSP informed him they had no package belonging to him on July 7, 2020.",
"2 (Id. at 4-5.) 3 First, federal law governs the procedural question of when a preliminary injunction will 4 issue. Flood v. Clearone Communs., Inc., 618 F.3d 1110, 1117 (10th Cir. 2010); Cretified 5 Restoration Dry Cleaning Networks, LLC v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007). 6 Thus, reliance on the federal procedural law was not erroneous. 7 Second, Plaintiff’s “new evidence” fails to show the Court erred in adopting the 8 recommendations or provide other grounds for granting his motion for reconsideration. Plaintiff 9 alleges that property he mailed to HDSP is now missing.",
"(See Doc. 52 at 4-5.) The allegation does 10 not show that he is, or was, likely to suffer irreparable harm in the absence of his requested relief. 11 If Defendant indeed discarded or destroyed Plaintiff’s property in retaliation for filing this 12 lawsuit, as Plaintiff implies, Plaintiff may file a new action for damages. 13 Based on the foregoing, Plaintiff’s motion for reconsideration (Doc. 52) is denied. 14 IT IS SO ORDERED. 15 16 Dated: August 10, 2020 SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2"
]
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199 Cal.App.2d 474 (1962) 18 Cal. Rptr. 708 THE PEOPLE, Plaintiff and Respondent, v. CHARLIE HARRIS, Defendant and Appellant. Docket No. 7652. Court of Appeals of California, Second District, Division Three. January 25, 1962. Charlie Harris, in pro. per., for Defendant and Appellant. Stanley Mosk, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Plaintiff and Respondent. SHINN, P.J. In a jury trial, in which he was represented by private counsel, Charlie Harris was convicted, under indictment, of two offenses of selling heroin. He admitted the allegation of the amended indictment that he had suffered two former convictions of felony. He was sentenced to state prison and has taken an appeal from the judgment. Upon his application for appointment of counsel we read the *475 record, and having determined that the appeal is groundless, we denied the application. Defendant has filed briefs. There was evidence of the following facts. Early in the afternoon in August of 1960 Officer Hairston of the Los Angeles Police Department, in company with one Pier, encountered one Sorrell who offered to join Hairston in the purchase of heroin. Each contributed $4.00, which was given to defendant in return for a red balloon and its contents. The balloon was passed through the hands of Pier to Sorrell, who shortly thereafter divided the contents with Hairston. At the trial it was proved that the balloon had contained heroin. Later in the day, in the company of Pier, Hairston encountered defendant in the rear of a café, where Hairston purchased from defendant a pink balloon and contents for $7.00. The contents of the balloon were proved at the trial to be heroin. Due to the fact the police were engaged in a widespread investigation of narcotic activities defendant was not arrested until about two and one-half months after the transactions with the officer. Hairston also testified that after defendant's arrest in the course of an interview defendant stated to Hairston "I was selling to the other guy. I wasn't selling to you." Officer Wesley testified that he was present with other officers, including Hairston, when defendant was interviewed in the jail. Defendant's statements were made freely and voluntarily. A recording was made of the conversation and the recording was played to the jury. The tape, the box and contents were received in evidence without objection. There was no transcription of the tape. On the stand defendant denied that he knew Hairston, Pier or Sorrell and denied having had any transaction with them. He testified that there were a lot of differences between the conversation and the recording. When asked by his counsel to state "what was said that is not on the tape or what was not said that is on the tape?" the only reply was "The tape said that I sold some dope. I didn't sell any dope to anybody, nobody gave me any four dollars. I never sold nobody any dope because I was sick in November." [1] We have had occasion to express disapproval of the practice of playing tape recordings to a jury without having a transcription made as a part of the oral proceedings. (People v. Mulvey, 196 Cal. App.2d 714, 719 [16 Cal. Rptr. 82].) In the present case instead of receiving in evidence the tape, the box and contents, the court should have required the reporter to make a record of the recording. However, it does not *476 appear that the absence of a transcription of the recording has resulted in any prejudice to the defendant. It would seem that the only part of the interview which the People deemed important was the statement elicited from Officer Hairston that defendant said he was selling a narcotic to someone else and not to Hairston. Defendant was given an opportunity to testify to any errors in the recording of the conversation. His testimony was substantially to the effect that he made no incriminating statement. Apparently, the only purpose of the People was to prove by the recording the same admission testified to by Officer Hairston. The irregularity in the failure to make a transcription of the recording was inconsequential. [2] After the jury had retired it was stipulated that defendant's attorney need not be present when the verdict was returned, that if requested by the jury any evidence might be reread to them, and that the recording, if requested, might be replayed in the absence of the attorney. At the request of the jury the recording was replayed, but there were no other proceedings in the absence of defendant's attorney. Defendant claims he was prejudiced by this procedure. Clearly, this is not the case. The record shows that the attorney consulted with the defendant concerning his absence from the courtroom, and that defendant expressed his satisfaction with the procedure. The presence of the attorney was not necessary during the replaying of the recording. The facts testified to by Officer Hairston clearly established the guilt of defendant, and his denials of the same presented only a question of fact for the trial court and on the appeal present no question of law. As is usual in such cases, defendant's brief contains frivolous claims of error. The indictment was amended to substitute "Charlie" for "Charles" wherever the latter appeared. This was on motion of defendant's attorney. Although defendant was without counsel on the first date set for arraignment the matter was continued and he was represented by counsel at the time he was arraigned. On the day of trial the information was amended by adding the allegation of the two former convictions. Defendant was arraigned on the amended indictment; he pleaded not guilty and admitted the two prior convictions. It was the duty of the district attorney to move the amendment and the duty of the court to grant it. (Pen. Code, § 969a.) The judgment is affirmed. Ford, J., concurred. *477 A petition for a rehearing was denied February 14, 1962, and appellant's petition for a hearing by the Supreme Court was denied March 21, 1962. Peters, J., was of the opinion that the petition should be granted. | 10-30-2013 | [
"199 Cal.App.2d 474 (1962) 18 Cal. Rptr. 708 THE PEOPLE, Plaintiff and Respondent, v. CHARLIE HARRIS, Defendant and Appellant. Docket No. 7652. Court of Appeals of California, Second District, Division Three. January 25, 1962. Charlie Harris, in pro. per., for Defendant and Appellant. Stanley Mosk, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Plaintiff and Respondent. SHINN, P.J. In a jury trial, in which he was represented by private counsel, Charlie Harris was convicted, under indictment, of two offenses of selling heroin. He admitted the allegation of the amended indictment that he had suffered two former convictions of felony. He was sentenced to state prison and has taken an appeal from the judgment.",
"Upon his application for appointment of counsel we read the *475 record, and having determined that the appeal is groundless, we denied the application. Defendant has filed briefs. There was evidence of the following facts. Early in the afternoon in August of 1960 Officer Hairston of the Los Angeles Police Department, in company with one Pier, encountered one Sorrell who offered to join Hairston in the purchase of heroin. Each contributed $4.00, which was given to defendant in return for a red balloon and its contents. The balloon was passed through the hands of Pier to Sorrell, who shortly thereafter divided the contents with Hairston. At the trial it was proved that the balloon had contained heroin. Later in the day, in the company of Pier, Hairston encountered defendant in the rear of a café, where Hairston purchased from defendant a pink balloon and contents for $7.00.",
"The contents of the balloon were proved at the trial to be heroin. Due to the fact the police were engaged in a widespread investigation of narcotic activities defendant was not arrested until about two and one-half months after the transactions with the officer. Hairston also testified that after defendant's arrest in the course of an interview defendant stated to Hairston \"I was selling to the other guy. I wasn't selling to you.\" Officer Wesley testified that he was present with other officers, including Hairston, when defendant was interviewed in the jail. Defendant's statements were made freely and voluntarily. A recording was made of the conversation and the recording was played to the jury. The tape, the box and contents were received in evidence without objection. There was no transcription of the tape.",
"On the stand defendant denied that he knew Hairston, Pier or Sorrell and denied having had any transaction with them. He testified that there were a lot of differences between the conversation and the recording. When asked by his counsel to state \"what was said that is not on the tape or what was not said that is on the tape?\" the only reply was \"The tape said that I sold some dope. I didn't sell any dope to anybody, nobody gave me any four dollars. I never sold nobody any dope because I was sick in November.\" [1] We have had occasion to express disapproval of the practice of playing tape recordings to a jury without having a transcription made as a part of the oral proceedings.",
"(People v. Mulvey, 196 Cal. App.2d 714, 719 [16 Cal. Rptr. 82].) In the present case instead of receiving in evidence the tape, the box and contents, the court should have required the reporter to make a record of the recording. However, it does not *476 appear that the absence of a transcription of the recording has resulted in any prejudice to the defendant. It would seem that the only part of the interview which the People deemed important was the statement elicited from Officer Hairston that defendant said he was selling a narcotic to someone else and not to Hairston. Defendant was given an opportunity to testify to any errors in the recording of the conversation.",
"His testimony was substantially to the effect that he made no incriminating statement. Apparently, the only purpose of the People was to prove by the recording the same admission testified to by Officer Hairston. The irregularity in the failure to make a transcription of the recording was inconsequential. [2] After the jury had retired it was stipulated that defendant's attorney need not be present when the verdict was returned, that if requested by the jury any evidence might be reread to them, and that the recording, if requested, might be replayed in the absence of the attorney. At the request of the jury the recording was replayed, but there were no other proceedings in the absence of defendant's attorney.",
"Defendant claims he was prejudiced by this procedure. Clearly, this is not the case. The record shows that the attorney consulted with the defendant concerning his absence from the courtroom, and that defendant expressed his satisfaction with the procedure. The presence of the attorney was not necessary during the replaying of the recording. The facts testified to by Officer Hairston clearly established the guilt of defendant, and his denials of the same presented only a question of fact for the trial court and on the appeal present no question of law.",
"As is usual in such cases, defendant's brief contains frivolous claims of error. The indictment was amended to substitute \"Charlie\" for \"Charles\" wherever the latter appeared. This was on motion of defendant's attorney. Although defendant was without counsel on the first date set for arraignment the matter was continued and he was represented by counsel at the time he was arraigned. On the day of trial the information was amended by adding the allegation of the two former convictions. Defendant was arraigned on the amended indictment; he pleaded not guilty and admitted the two prior convictions. It was the duty of the district attorney to move the amendment and the duty of the court to grant it. (Pen. Code, § 969a.)",
"The judgment is affirmed. Ford, J., concurred. *477 A petition for a rehearing was denied February 14, 1962, and appellant's petition for a hearing by the Supreme Court was denied March 21, 1962. Peters, J., was of the opinion that the petition should be granted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2243256/ | 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 .
Applicant's request for reconsideration of the finality of the rejection of the last Office action is persuasive and, therefore, the finality of that action is withdrawn.
Status of Claims Claims 1-17 are pending. Claim 12, previously withdrawn as being drawn to a non-elected species, is examined herein. Claims 1-17 are examined as to all species.
Previous Rejections Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Rejections Withdrawn Claim Rejections - 35 USC § 103 In light of Applicants common ownership statement, the rejection of claims 1-11 and 13-17 under 35 U.S.C. 103 as being unpatentable over Portal et al. US 2016/0317423 (12/17/2013)(12/18/2018 IDS) in view of Daubersies et al US 2017/0360657 (12/18/2014) is withdrawn.
Double Patenting In light of Applicants common ownership statement that Daubersies et al is not available prior art, the rejection of claims 1-11 and 13-17 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,576,025 in view of Portal et al. US 2016/0317423 (12/17/2013) and Daubersies et al US 2017/0360657 (12/18/2014) is withdrawn.
New Rejections Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b). Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,576,025 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 18 of U.S. Patent No. 10,576,025 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 10,576,025 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,576,025 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,576,025 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 22 of US Patent No. 9,918,925 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 22 of U.S. Patent No. 9,918,925 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 9,918,925 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 9,918,925 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 9,918,925 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 22 of US Patent No. 9,943,475 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 22 of U.S. Patent No. 9,943,475 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 9,943,475 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 9,943,475 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 9,943,475 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 14 of US Patent No. 10,071,046 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 14 of U.S. Patent No. 10,071,046 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising an apolar hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 10,071,046 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,071,046 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,071,046 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 19 of US Patent No. 10,219,991 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 19 of U.S. Patent No. 10,219,991 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising at least one hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 10,219,991 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,219,991 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,219,991 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,617,625 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 18 of U.S. Patent No. 10,617,625 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising a hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 10,617,625 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,617,625 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,617,625 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.
Response to Arguments Applicants’ arguments of July 22, 2022 have been fully considered and are found to be mostly persuasive. Applicants note the publication date of Daubersies is June 23, 2016 which is the same as the effective filing date of the present application. Therefore Daubersies is only available under 35 USC 102(a)(2) and the following statement of common ownership under 35 USC102(b)(2)(C) is believed to remove Daubersies as a reference over the above-identified application. Applicants argue that Portal relates to dispersions of stabilized polymer particles and cosmetic compositions containing the same. Applicants assert that the Portal composition differs from the method of the instant invention because the method of the invention pertains to the application of an adhesive cosmetic composition to the fibers and to the keratin material whereas Portal’s composition yields a film that has good gloss and that is non-tacky. Applicants reiterates these arguments with respect to the obviousness double patenting rejection. Specifically, Daubersies is no longer available as a reference in light of the common ownership statement. Applicants’ arguments have been reviewed and are found to be mostly persuasive. In light of the statement of common ownership, the Examiner agrees that the Daubersies reference is no longer available as prior art. The obviousness rejections are withdrawn above. Applicants argument that Portal relates to dispersions of stabilized polymer particles and cosmetic compositions containing the same, so it is too different to be applicable prior art because it is non-tacky while the instant claimed invention is adhesive is not found to be persuasive. This difference does not mean that it cannot be applied as prior art to the instantly claimed invention. Please see the new obviousness-type double patenting rejections above employing this reference.
Conclusion No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827. 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.
/SARAH CHICKOS/ Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619 | 2022-09-14T10:53:32 | [
"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 . Applicant's request for reconsideration of the finality of the rejection of the last Office action is persuasive and, therefore, the finality of that action is withdrawn. Status of Claims Claims 1-17 are pending. Claim 12, previously withdrawn as being drawn to a non-elected species, is examined herein. Claims 1-17 are examined as to all species. Previous Rejections Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn. The following rejections and/or objections are either reiterated or newly applied.",
"They constitute the complete set presently being applied to the instant application. Rejections Withdrawn Claim Rejections - 35 USC § 103 In light of Applicants common ownership statement, the rejection of claims 1-11 and 13-17 under 35 U.S.C. 103 as being unpatentable over Portal et al. US 2016/0317423 (12/17/2013)(12/18/2018 IDS) in view of Daubersies et al US 2017/0360657 (12/18/2014) is withdrawn. Double Patenting In light of Applicants common ownership statement that Daubersies et al is not available prior art, the rejection of claims 1-11 and 13-17 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,576,025 in view of Portal et al.",
"US 2016/0317423 (12/17/2013) and Daubersies et al US 2017/0360657 (12/18/2014) is withdrawn. New Rejections Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir.",
"1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.",
"Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b). Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,576,025 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 18 of U.S. Patent No. 10,576,025 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No.",
"10,576,025 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,576,025 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,576,025 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.",
"Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 22 of US Patent No. 9,918,925 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 22 of U.S. Patent No.",
"9,918,925 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No. 9,918,925 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 9,918,925 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra.",
"It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 9,918,925 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal. Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 22 of US Patent No. 9,943,475 in view of Portal et al.",
"US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 22 of U.S. Patent No. 9,943,475 is directed to a method for making up or for caring for keratin materials comprising applying a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4.",
"The method claimed in U.S. Patent No. 9,943,475 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 9,943,475 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for one of ordinary skill in the art It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 9,943,475 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.",
"Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 14 of US Patent No. 10,071,046 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 14 of U.S. Patent No. 10,071,046 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising an apolar hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4.",
"The method claimed in U.S. Patent No. 10,071,046 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,071,046 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,071,046 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal. Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 19 of US Patent No.",
"10,219,991 in view of Portal et al. US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 19 of U.S. Patent No. 10,219,991 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising at least one hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No.",
"10,219,991 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,219,991 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,219,991 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal. Claims 1-17 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 18 of US Patent No. 10,617,625 in view of Portal et al.",
"US 2016/0317423 (12/17/2013). Although the claims are not identical, they are not patentably distinct from each other because the instant claims are directed to a method for the elongation or densification of fibers on a keratin material using a composition comprising a volatile hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. Claim 18 of U.S. Patent No. 10,617,625 is directed to a non-therapeutic cosmetic method for treating keratin materials comprising the application of a composition comprising a hydrocarbon oil, particles of a C1-C4 methacrylate polymer that is surface stabilized with a statistical copolymer of isobornyl (meth)acrylate/ and of C1-C4 alkyl (meth)acrylate present in an isobornyl (meth)acrylate/C1-C4 alkyl (meth)acrylate weight ratio of greater than 4. The method claimed in U.S. Patent No.",
"10,617,625 differs from the method of the instant claims in that it is a method of for making up or for caring for keratin materials comprising applying a composition to keratin. The method claimed in U.S. Patent No. 10,617,625 also recites but does not provide a reason for selecting the elected species of methyl acrylate /ethyl acrylate/acrylic acid copolymers as the polymer of the particles, statistical copolymers of isobornyl acrylate/methyl acrylate as the stabilizer, and indene hydrocarbon-based resins as the hydrophobic film-forming polymer. These deficiencies are made up for with the teachings of Portal. The teachings of Portal are described supra. It would be prima facie obvious for a person of ordinary skill in the art at the time of the invention following the method claimed in US Patent 10,617,625 to select the statistical copolymer of isobornyl acrylate/methyl acrylate to stabilize the methyl acrylate/ethyl acrylate/acrylic acid copolymer particles and to have from 10% to 50% by weight of polymerized isobornyl (meth)acrylate and from 50% to 90% by weight of polymerized C1-C4 alkyl (meth)acrylate in a hydrocarbon solvent with less than 2% water in order to have a polymer dispersion that is stable, especially after storage for seven days at room temperature (25° C.) as taught by Portal.",
"Response to Arguments Applicants’ arguments of July 22, 2022 have been fully considered and are found to be mostly persuasive. Applicants note the publication date of Daubersies is June 23, 2016 which is the same as the effective filing date of the present application. Therefore Daubersies is only available under 35 USC 102(a)(2) and the following statement of common ownership under 35 USC102(b)(2)(C) is believed to remove Daubersies as a reference over the above-identified application. Applicants argue that Portal relates to dispersions of stabilized polymer particles and cosmetic compositions containing the same. Applicants assert that the Portal composition differs from the method of the instant invention because the method of the invention pertains to the application of an adhesive cosmetic composition to the fibers and to the keratin material whereas Portal’s composition yields a film that has good gloss and that is non-tacky.",
"Applicants reiterates these arguments with respect to the obviousness double patenting rejection. Specifically, Daubersies is no longer available as a reference in light of the common ownership statement. Applicants’ arguments have been reviewed and are found to be mostly persuasive. In light of the statement of common ownership, the Examiner agrees that the Daubersies reference is no longer available as prior art. The obviousness rejections are withdrawn above. Applicants argument that Portal relates to dispersions of stabilized polymer particles and cosmetic compositions containing the same, so it is too different to be applicable prior art because it is non-tacky while the instant claimed invention is adhesive is not found to be persuasive. This difference does not mean that it cannot be applied as prior art to the instantly claimed invention.",
"Please see the new obviousness-type double patenting rejections above employing this reference. Conclusion No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CHICKOS whose telephone number is (571)270-3884. The examiner can normally be reached on M-F 9-6. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827.",
"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. /SARAH CHICKOS/ Examiner, Art Unit 1619 /DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) GENUS LIFESCIENCES, INC., ) ) Plaintiff, ) ) v. ) ) ALEX AZAR, et al., ) Case No. 1:20-cv-00211-TNM ) Defendants, ) ) v. ) ) LANNETT CO., INC., ) ) Intervenor-Defendant. ) )
INTERVENOR-DEFENDANT LANNETT CO., INC.’S MOTION FOR RECONSIDERATION AND OPPOSITION TO MOTION FOR VACATUR
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TABLE OF CONTENTS
I. INTRODUCTION............................................................................................................. 1
II. DISCUSSION .................................................................................................................... 2
A. The Standard is Met for Reconsideration. ......................................................... 2
B. Lannett Was Not Required to Submit a Patent Certification........................... 2
1. The FDCA Does Not Require Patent Certifications Absent Any Patents. ....................................................................................................... 2
2. Sentence 2’s Reference to “Such an Application” Does Not Mandate a Different Construction. ......................................................... 4
3. FDA’s Interpretation of the FDCA and Regulations............................. 5
C. If a Patent Certification Was Required, FDA’s Acceptance and Approval of Lannett’s Application Without a Patent Certification was Harmless Error. .................................................................................................... 5
D. If a Patent Certification Was Required, and This Court Declines to Find Harmless Error, the Allied-Signal Factors Show Remand Without Vacatur is Appropriate. ........................................................................ 6
1. Any Deficiency Was Not Serious and Could be Remedied on Remand. ..................................................................................................... 6
2. Vacatur Would Lead to Disruptive Consequences. ............................... 8
E. Genus’s Arguments Are Contrary to the Law of This Circuit. ........................ 9
F. Each of Genus’s Reasons Arguing for Vacatur Fails. ..................................... 11
G. Should this Court Remand with Vacatur, Lannett Requests that the Court First Allow the Agency Time to Act. ...................................................... 14
III. CONCLUSION ............................................................................................................... 15
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TABLE OF AUTHORITIES
Cases
A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) ........................................................................................ 7, 12, 15
ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994) .................................................................................................................... 7
Action on Smoking & Health v. Civ. Aeronautics Bd., 713 F.2d 795 (D.C. Cir. 1983) .................................................................................................. 10
AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.C. Cir. 2007) ......................................................................................... 12
Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146 (D.C. Cir. 1993) ................................................................................................ 1, 6
Am. Great Lakes Ports Ass’n v. Schultz, 962 F.3d 510 (D.C. Cir. 2020) .................................................................................................. 11
Barnhart v. Thomas, 540 U.S. 20 (2003) ...................................................................................................................... 4
Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83 (D.C. Cir. 2020) .................................................................................................... 11
Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001) .................................................................................................. 13
Citizens for Resp. and Ethics in Washington v. Trump, 438 F. Supp. 3d 54 (D.D.C. 2020) ............................................................................................ 11
Clean Wis. v. EPA, 964 F.3d 1145 (D.C. Cir. 2020) ................................................................................................ 11
Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) .................................................................................................. 10
Johnson v. Copyright Royalty Bd., 969 F.3d 363 (D.C. Cir. 2020) .................................................................................................. 10
Lockhart v. United States, 136 S. Ct. 958 (2016) .................................................................................................................. 4
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NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) .......................................................................................... 15
Nat. Res. Def. Council v EPA, 489 F.3d 1250 (D.C. Cir. 2007) ................................................................................................ 13
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .................................................................................................................... 6
Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93 (D.D.C. 2007) ............................................................................................ 13
Teva Pharms. USA, Inc. v. FDA, 441 F.3d 1 (D.C. Cir. 2006) ...................................................................................................... 11
United Steel v. Mine Safety & Health Admin., 925 F.3d 1279 (D.C. Cir. 2019) .......................................................................................... 10, 11
Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) ................................................................................................................ 4
Williams v. Spencer, 883 F. Supp. 2d 165 (D.D.C. 2012) .......................................................................................... 13
Youssef v. Holder, 62 F. Supp. 3d 96 (D.D.C. 2014) ................................................................................................ 2
Zevallos v. Obama, 793 F.3d 106 (D.C. Cir. 2015) .................................................................................................... 6
Statutes
5 U.S.C. § 706 ................................................................................................................................. 5
21 U.S.C. § 355(b)(2)(A) ............................................................................................................................. 3 § 355(b)(2)(B) ............................................................................................................................. 4 § 355(c)(2)(A)(i) ......................................................................................................................... 3 § 355(c)(3) .................................................................................................................................. 4 § 355(c)(3)(C) ............................................................................................................................. 5
Rules
Fed. R. Civ. P. 54(b) ....................................................................................................................... 2
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I. INTRODUCTION1
Lannett asks the Court to reconsider its Memorandum Opinion (Dkt. 63) and
accompanying Order (Dkt. 64), in part,2 because Lannett was not required to submit a patent
certification and because FDA applied the correct timeline for approval. Should the Court not
disturb its prior conclusion that Lannett was required to submit a patent certification, Lannett
requests the Court find that FDA not requiring a patent certification from Lannett was harmless
error (because there was no applicable patent) and therefore FDA did not violate the APA.
If, however, this Court leaves in place its September 15, 2020 holding, the appropriate
remedy under the Allied-Signal factors is remand to FDA without vacatur. See Allied-Signal, Inc.
v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993). Genus does not accept
that standard, but it is governing here in the event the Court remands to FDA. Applying that
standard here would appropriately result in remand without vacatur. The deficiency is easily
corrected: Lannett could simply certify the absence of applicable patents as of the date of its
application. Additionally, vacatur would cause enormous disruption to the marketplace
(eliminating all competition), to the public (as Genus is likely to raise prices as it previously did
when it had the only product on the market), and to Lannett (by causing irreparable harm to
Lannett’s market position, inventory, regulatory status, and revenue). Genus’s contrary arguments
1 The Court’s September 15, 2020 Memorandum Opinion (Dkt. 63) is referred to herein as the Opinion, and cited as “Op. at _.” The Complaint (Dkt. 1) is cited herein as “Compl. at ¶ _.” Lannett’s memorandum in support of its motion for summary judgment (Dkt. 28-1) is cited as “Lannett MSJ at _.” Lannett’s Supplemental Brief (Dkt. 55) is cited herein as “Lannett Supp. Br. at _.” Genus’s Motion to Vacate (Dkt. 66) is cited herein as “Motion to Vacate at _.” The terms “APA,” “CRL,” “FDA,” “Genus,” “Lannett,” and “FDCA” are used as defined in Lannett’s MSJ. 2 Lannett does not request reconsideration regarding the Court’s determination that FDA correctly determined Genus’s exclusivity period did not bar FDA from approving Numbrino.
1
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are legally incorrect, demonstrably false, or both.
In the last alternative, Lannett requests that any vacatur not take immediate effect and
instead FDA be first given an opportunity to address any deficiencies on remand.
II. DISCUSSION
A. The Standard is Met for Reconsideration.
Under Federal Rule of Civil Procedure 54(b), “any order . . . that adjudicates fewer than all
the claims . . . may be revised at any time before the entry of a judgment adjudicating all the
claims.” “A motion to reconsider brought under Rule 54(b) may be granted ‘as justice requires.’”
Youssef v. Holder, 62 F. Supp. 3d 96, 98 (D.D.C. 2014) (citations omitted). “Considerations . . .
include whether the court . . . made a decision beyond the adversarial issues presented to the court.”
Id. “[E]ven if the appropriate legal standard does not indicate that reconsideration is warranted,
the Court may nevertheless elect to grant a motion for reconsideration if there are other good
reasons for doing so.” Id. at 99 (citation omitted). Here, there are good reasons for reconsidering,
including that neither Genus’s Complaint nor its summary judgment briefs alleged improper
agency action related to the presence or absence of a patent certification, and FDA and Lannett did
not make the fulsome arguments they would have had Genus sought relief on that basis (rather,
the parties only indirectly and briefly addressed the issue in supplemental briefing). Further, the
Court did not consider whether any error was harmless.
B. Lannett Was Not Required to Submit a Patent Certification.
1. The FDCA Does Not Require Patent Certifications Absent Any Patents.
By its plain terms, the FDCA does not require a patent certification from a 505(b)(2)
applicant unless the application relies on studies that were conducted for another drug, and that
drug is patented or has a patented use that overlaps with the application. The certification
2
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provisions apply only when the applicant relies on investigations of safety and efficacy that “were
conducted” for another, already-approved drug; where there is at least one associated “patent
which claims the drug . . . or which claims a use for such drug for which the applicant is seeking
approval”; and where “information is required to be filed [for that patent] under paragraph (1) or
subsection (c).” § 355(b)(2)(A). Paragraph (b)(1) and subsection (c) are the provisions that require
new drug applicants to submit patents to the FDA for listing in the Orange Book once the drug is
approved. Where there is no such patent, paragraph (b)(2) requires no certification.
The Court incorrectly concluded that a “Paragraph I” certification is required when no such
patent exists. Op. at 20. In fact, a Paragraph I certification applies only when a patent claiming
the drug or use exists and is “required to be filed,” but “has not been filed” with FDA.
§ 355(c)(2)(A)(i). Lannett submitted its application without relying on any investigations
conducted for a patented drug. Genus has conceded as much—that “Genus did not have patents
when Lannett first submitted its application,” and Genus’s “Goprelto was not yet approved and, as
a result, had no patents listed in FDA’s ‘Orange Book.’” Motion to Vacate at 6; Compl. ¶ 41. It
follows that Lannett was not required to include a certification with its application, and that the
statutory paragraph governing the timing of approval of “an application filed under subsection (b)
which contains a certification” does not govern when FDA could make Lannett’s approval
effective.3
3 Genus also argues a patent certification was required with what it calls Lannett’s “resubmission.” Motion to Vacate at 3–5. But Lannett was not required to submit a patent certification at the time of its response to FDA’s Complete Response Letter. This relates to the same dispute in the unresolved Count II over what Genus calls “resubmission.” See Lannett MSJ § IV(B).
3
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2. Sentence 2’s Reference to “Such an Application” Does Not Mandate a Different Construction.
In reasoning that “such an application” refers to “any later competing 505(b)(2)
application,” not just one with a Paragraph IV certification, the Court applied an exception to the
rule of the last antecedent: “a pronoun or demonstrative adjective that is the subject of a sentence
and does not have an antecedent in that sentence ordinarily refers to the subject of the preceding
sentence.” Op. at 12–13 (citations omitted). But “structural or contextual evidence” and “other
indicia of meaning” can “rebut the last-antecedent inference,” Lockhart v. United States, 136 S.
Ct. 958, 965 (2016); Barnhart v. Thomas, 540 U.S. 20, 26 (2003), and the related inference the
Court drew, as well as the presumption of consistent usage, Utility Air Regulatory Grp. v. EPA,
134 S. Ct. 2427, 2441 (2014). Here several structural features overcomes those inferences.
First, reading “such an application” in Sentence 2 to mean any later competing 505(b)(2)
application does not work unless “this paragraph” creates a comprehensive set of timelines. It
does not: paragraph (c) governs the timing not of every 505(b)(2) application, but only those
“contain[ing] a certification.” § 355(c)(3). Because not all 505(b)(2) applications must contain a
certification, “this paragraph” does not provide a timeline for all such applications, and the Court’s
reading creates a gap that Lannett’s and FDA’s reading avoids. The Court concluded that there is
always a timeline in § 355(c)(3) that governs approval of a 505(b)(2) application, but as shown
above, the Court over-read the scope of the Paragraph I certification requirement, which applies
only when relevant patents exist and are required to be listed but have not been. When there are
no patents at all, no certification is required; when there are only method-of-use patents that do not
relate to “a use for which the applicant is seeking approval,” only a “statement” is required, not a
“certification.” § 355(b)(2)(B). Thus, there are 505(b)(2) applications—including Lannett’s—
that do not require certifications, and accordingly, there are 505(b)(2) applications for which § 4
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355(c)(3)(A)-(C) provide no timeline. The Court’s reading thus creates a broader patent
certification requirement than § 355(b)(2)(A) imposes.
Second, the rest of Sentence 2 confirms that it is only addressing “the subset of subsequent
applications with Paragraph IV certifications,” Op. at 12: it refers to “the thirty-month period
referred to in subparagraph (C)”—i.e., the thirty-month Hatch-Waxman stay of approval. Such a
period exists only when the application contains a Paragraph IV certification. § 355(c)(3)(C).
Because Sentence 2 regulates only applications with a Paragraph IV certification, it
provides no basis to set aside FDA’s approval of Lannett’s application.
3. FDA’s Interpretation of the FDCA and Regulations.
As described in FDA’s brief filed concurrently with this one, FDA’s interpretation of the
FDCA and FDA’s own regulations also did not require Lannett to file a patent certification.
C. If a Patent Certification Was Required, FDA’s Acceptance and Approval of Lannett’s Application Without a Patent Certification was Harmless Error.
In any event, FDA’s acceptance and approval of Lannett’s application without a patent
certification was at most harmless error: because there were no applicable patents, a certification
could not have changed the timeline for approval. See Op. at 20-21. The omission of a certification
from Lannett’s application—one that neither the agency nor Lannett believed was required—was
at most a mere technicality, given there was no patent upon which to certify, and FDA knew it (as
indicated by the FDA reviewer checking, “no patent certifications are required” in FDA’s
505(b)(2) assessment of Lannett’s application). A.R. at FDASUPP012173. (An FDA reviewer
checked the same box for Genus. A.R. at FDA001303.) The presence or absence of a certification
therefore did not affect the substance or the timing of the final agency action Genus is challenging.
The APA provides that, in making a determination of unlawful agency action under the
APA, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. An error is 5
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harmless if it is “not germane to the final agency . . . decision.” Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 659 (2007). For example, in Zevallos v. Obama, the D.C. Circuit
held it would “not invalidate [the agency’s] decision based on procedural error unless the errors
alleged could have affected the outcome.” 793 F.3d 106, 115 (D.C. Cir. 2015). The D.C. Circuit
held that the agency’s errors, including delay and failure to consider some evidence that it had lost,
were harmless because the plaintiff “must,” but could not, “show that a different process would
have led [the agency] to a different decision.” Id. Here, Genus cannot show that had FDA required
Lannett to submit a patent certification under this Court’s reading, the result would have been
different. To the contrary, had Lannett submitted a patent certification under § 355(b)(2)(A), it
would have certified there was no applicable patent, and FDA would have reached the same result
on the same timeline. See Op. at 20-21. Thus, even on this Court’s interpretation, any error was
harmless, and no remand is required because there is no prejudicial error to remedy.
D. If a Patent Certification Was Required, and This Court Declines to Find Harmless Error, the Allied-Signal Factors Show Remand Without Vacatur is Appropriate.
Should the Court not reconsider its determination, Lannett respectfully submits that the
proper remedy is remand to the agency without vacatur. Genus disputes the controlling D.C.
Circuit precedent, but the decision whether to remand without vacatur is governed by Allied-
Signal. The Allied-Signal test considers “the seriousness of the . . . deficiencies” and “the
disruptive consequences of an interim change that may itself be changed.” 988 F.2d at 150–51.
1. Any Deficiency Was Not Serious and Could be Remedied on Remand.
The omission of a patent certification was not a “serious” deficiency, given there was no
patent to which to certify within the meaning of § 355(b)(2). Moreover, if FDA determines on
remand that a patent certification should be filed, Lannett has now furnished a certification nunc
6
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pro tunc certifying what Genus admits is true (Motion to Vacate at 6): that there were no applicable
patents as of September 2017, the date of its initial application. See Declaration of John Abt (“Abt
Decl.,” attached as Exhibit 1), ¶ 14.
The D.C. Circuit has previously held that FDA has discretion to not revoke approval of an
application that was approved despite a deficiency in the submission. In A.L. Pharma, Inc. v.
Shalala, the challenger argued that Philips Roxane’s application for an animal drug improperly
relied on competitor A.L. Pharma data, and as such, FDA should not have approved the
application. 62 F.3d 1484, 1488 (D.C. Cir. 1995). But the D.C. Circuit held that it was within
FDA’s discretion to not vacate approval for Philips Roxane’s drug application, including because
Philips Roxane later (after approval) cured the deficiency by submitting other data to rely on in
place of the competitor’s data. Id. at 1490. Specifically, the D.C. Circuit held, “Even if the agency
had violated its regulation when it approved Philips Roxane’s application, A.L.’s proposed remedy
of vacatur . . . would be inappropriate in light of Philips Roxane’s replacement of the reference to
[the competitor data] in its application with a reference to the identical data in a different master
file.” Id. at 1489. The D.C. Circuit further explained, “To the extent that the misrepresentation
harmed the FDA’s administrative process, the agency has broad latitude to determine an
appropriate response” and held, “It is well within the discretion of the FDA to decide not to
penalize the company by withdrawing its approval of [the] NADA [New Animal Drug
Application].” Id. at 1489–90 (citing ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994)).
This case is the same. If a patent certification was required, FDA may permissibly decide
not to revoke Lannett’s approved application, particularly given Lannett can easily cure by
certifying the undisputed fact that there was no applicable patent as of the date of its initial
505(b)(2) application and, as noted above, it already has, see Abt Decl. ¶ 14. This is similar to
7
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how Philips Roxane replaced its data references post-approval. As A.L. Pharma is binding D.C.
Circuit precedent that demonstrates that the omission of a patent certification was not serious, and
that FDA need not revoke Lannett’s approval on those grounds, the first Allied-Signal factor
weighs in favor of remand without vacatur.
2. Vacatur Would Lead to Disruptive Consequences.
The second factor, too, weighs in favor of remand without vacatur, because vacating FDA’s
approval of Lannett’s application would cause immense disruptive consequences in the
marketplace, to the public, and to Lannett. That is not just a prediction: it is based on what Genus
has previously done in the absence of competition from Lannett. As set forth in the attached
Declaration of William Giannone (“Giannone Decl.,” attached as Exhibit 2), Genus and Lannett
had competing cocaine hydrochloride solution products from 2018 until Lannett temporarily
ceased distribution to customers in August 2019, during the NDA process. Giannone Decl. ¶ 4, 6.
Within two months of Lannett exiting the market, Genus implemented a 37% price increase on its
product, raising the Wholesale Acquisition Cost (“WAC”) list price from $178 per unit to $245
per 4ml bottle. Id. ¶ 8. If Lannett’s approval is vacated and it is compelled to exit the market,
Genus can be expected to raise the price of its product again. Id. Moreover, Lannett’s WAC for
its generic product ($220.50 per 4ml bottle) is approximately 10% less than the price Genus
charges for its product ($245 per 4ml bottle). Id. ¶ 10. Therefore, having Lannett’s product on the
market serves the public interest and the marketplace by providing consumers choice and creating
price competition. Removing that choice and that price competition would be disruptive.
In addition, vacatur of Lannett’s approval could lead to shortages of the product in the
market. The Drug Enforcement Administration (“DEA”) limits the amount of cocaine raw
material a company may purchase for use in its manufacturing process of the finished dosage form.
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Typically, the DEA grants quota requests for a given year based on the company’s prior year sales
of its product. If Lannett has its approval vacated and later reinstated, it is likely to affect Lannett’s
ability to obtain sufficient quota to supply its customers upon return to the market. Id. ¶ 11.
In addition to disruptive consequences to the marketplace and the public interest, there are
also disruptive consequences to Lannett. Customers are concerned with being able to obtain
consistent supply, and Lannett prides itself on being able to deliver such consistent reliable supply.
Id. ¶ 13. After establishing an excellent reputation of consistently and reliably supplying this
product, Lannett’s reputation would suffer if, for a second time in two years, it was forced to
withdraw its product from the market. Id. ¶¶ 2–6, 13. Moreover, if FDA’s approval of Lannett’s
NDA were vacated and later reinstated, Lannett estimates it would lose revenue of $1–2 million
each quarter for the foreseeable future until the approval was reinstated, id. ¶ 14, not to mention it
would incur losses associated with being unable to recoup its $10 million investment in securing
approval of its cocaine hydrochloride product. Id. ¶ 15. Lannett currently has finished product,
active pharmaceutical ingredients used to manufacture its product, and other components in
inventory valued at approximately $1.8 million. Over $1.3 million of a controlled substance
excipient used to manufacture the raw material is currently consigned to a vendor. If Lannett’s
NDA were vacated and later reinstated, the material consigned to the vendor would likely need to
be destroyed. Id. ¶ 12. Lastly, Lannett has contracts with certain of its customers that impose
monetary penalties if it is unable to supply product. If Lannett’s NDA were vacated and later
reinstated, Lannett could be subject to significant contractual monetary penalties arising from
being unable to supply customers to whom it was contractually obligated. Id. ¶ 16.
E. Genus’s Arguments Are Contrary to the Law of This Circuit.
The cases Genus relies upon are far afield and do not erode the applicability of the Allied-
9
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Signal test. See Motion to Vacate at 1–3. Each of these cases did not qualify for remand without
vacatur for one or more of the following reasons:
First, they dealt with agency action with serious defects under factor 1 of the Allied-Signal
test, such as failure to follow notice and comment procedures or explanations so inadequate that
the reviewing court could not evaluate the agency explanation. See e.g., Action on Smoking &
Health v. Civ. Aeronautics Bd., 713 F.2d 795, 802 (D.C. Cir. 1983) (vacating agency’s attempt to
revoke rule without providing proper notice and comment); Johnson v. Copyright Royalty Bd., 969
F.3d 363, 392 (D.C. Cir. 2020) (vacating Copyright Royalty Board’s definition of “Service
Revenue” because Board could not identify the source for its statutory authority to adopt that new
definition). Per the D.C. Circuit, “Failure to provide the required notice and to invite public
comment . . . is a fundamental flaw that ‘normally’ requires vacatur of the rule . . . under the first
Allied-Signal factor”; “[s]o too, when an agency’s explanation of the basis and purpose of its rule
is so inadequate that the reviewing court cannot evaluate it.” Heartland Reg’l Med. Ctr. v.
Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009). In contrast to these cases, any defect here was not
serious under Allied-Signal because it is so readily curable. See supra § II.D.1.
Second, these cases did not involve apparent very disruptive consequences of vacatur under
factor 2 of the Allied-Signal test. For example, vacatur that results in the reinstatement of prior
agency rules in place before the challenged rules frequently is not disruptive at all or is only slightly
disruptive, as it merely restores the status quo ex ante. See, e.g., United Steel v. Mine Safety &
Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (restoring the previous standard that had
been replaced by the challenged rule). Here, as detailed supra § II.D.2, vacatur would be highly
disruptive, not only to Lannett’s operations, but to the marketplace and public interest.
Indeed, in some of Genus’s cases, the D.C. Circuit vacated the agency action because the
10
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agency did not argue the Allied-Signal factors compelled any other outcome. See, e.g., Bhd. of
Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 117 (D.C. Cir. 2020) (vacatur
was appropriate because “the Railroad Administration has neither asked the court nor given us any
reason to depart from that standard course of action [of vacatur]”); United Steel, 925 F.3d at 1287
(vacatur was appropriate because the agency “explain[ed] neither how the [challenged rule] can
be saved nor how vacatur [would] cause disruption”).
Third, at least one of Genus’s cases involved vacatur after the agency had been given an
opportunity on remand to address defects but had failed to do so. See, e.g., Teva Pharms. USA,
Inc. v. FDA, 441 F.3d 1, 3–5 (D.C. Cir. 2006) (vacating agency action after agency had an
opportunity on remand to address defects and failed on remand to act in accord with the D.C.
Circuit’s rulings).
Genus also cites dissents and other separate opinions that conflict with binding D.C. Circuit
precedent. See Motion to Vacate at 2. But remand without vacatur is alive and well in the D.C.
Circuit. See, e.g., Clean Wis. v. EPA, 964 F.3d 1145, 1177 (D.C. Cir. 2020) (remanding without
vacatur); Am. Great Lakes Ports Ass’n v. Schultz, 962 F.3d 510, 519 (D.C. Cir. 2020) (affirming
remand without vacatur). “[T]his Court is bound by Circuit precedent unless and until the Court
of Appeals revises its decision or the decision is overruled.” Citizens for Resp. and Ethics in
Washington v. Trump, 438 F. Supp. 3d 54, 62 n. 5 (D.D.C. 2020).
F. Each of Genus’s Reasons Arguing for Vacatur Fails.
Rather than address the Allied-Signal test on its own terms, Genus supplies five “reasons”
it believes vacatur is appropriate. Not only do Genus’s “reasons” not track the appropriate
standard, but in large part they are demonstrably false.
First, Genus argues that Lannett must submit a patent certification prior to application
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approval, and thus Numbrino’s approval must be vacated in any event (Motion to Vacate at 3), but
Genus is incorrect. The statutory reference to “each patent . . . which claims a use for such drug
for which the applicant is seeking approval” identifies which patents must be covered in a
certification, not whether the certification can be updated after approval. And the FDA regulations
Genus cites, 21 C.F.R. § 314.50(i)(6), deal with amending a previously filed certification, not with
whether FDA can accept a certification to cure a deficiency identified by this Court. Moreover,
post-approval correction of harmless deficiencies is routine in FDA practice. As the D.C. Circuit
held in A.L. Pharma, 62 F.3d at 1489-90, just like FDA permissibly accepted Philips Roxane’s
replacement data post-approval, FDA is permitted to accept a patent certification from Lannett
post-approval. See supra at 7. This is within FDA’s discretion.
Second, Genus argues vacatur is appropriate because Genus believes it has identified other
defects with FDA’s approval of Lannett’s application. Motion to Vacate at 3-6. But under Allied-
Signal, Genus cannot bootstrap claims that the Court has not adjudicated into grounds for relief on
the issue the Court has resolved. It is the Court, not Genus, that identifies the “deficiencies” to be
remedied. The cases Genus cites in support of this proposition do not support Genus’s argument.
In AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.C. Cir. 2007), before noting in passing that there were
other unresolved challenges to the agency rule, the D.C. Circuit had already decided to vacate the
rule based on a consideration of the Allied-Signal factors: the rule’s procedural invalidity was
“unquestionably a ‘serious’ deficiency,” id. at 91, and there was a “low likelihood that vacatur
would cause significant disruptions,” id. In Nat. Res. Def. Council v. EPA, the D.C. Circuit
vacated EPA’s “Boilers Rule” in its entirety—not because there were additional challenges to rule
not yet reached but rather primarily “[g]iven the likelihood (if not certainty) that the Boilers Rule
will change substantially as a result of our vacatur.” 489 F.3d 1250, 1261 (D.C. Cir. 2007). In
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that case, there was no reason to reach the additional challenges, because the challenge the Court
adjudicated made it nearly certain the rule could not survive. That is not so here, where FDA’s
approval of Numbrino could stand post-remand. Lastly, while the D.C. Circuit vacated the agency
rule in Cement Kiln Recycling Coal. v. EPA, the D.C. Circuit’s opinion concluded with the
suggestion that any party to the proceeding “file a motion to delay issuance of the mandate,”
including “to request . . . that the current standards remain in place” while the rule is on remand.
255 F.3d 855, 872 (D.C. Cir. 2001). Here, Lannett similarly requests the approval of its Numbrino
remain in place while the approval is on remand.
Third, Genus argues it is not likely FDA could remedy the “complicated issues” on remand.
Motion to Vacate at 8. This argument by Genus is wrong, because as demonstrated above, FDA
can simply accept a post-approval certification. See supra 6–8, 12.
Fourth, Genus alleges with no support that Lannett made an untrue statement in its
application as to where its drug would be manufactured. Motion to Vacate at 8–9. In fact, Lannett
underwent the proper process and utilized FDA’s well-established regulatory procedure to transfer
the manufacturing of Numbrino to its plant in Carmel, New York. Lannett did not launch its
Numbrino manufactured in Carmel, New York until after receiving FDA’s authorization for the
change on March 10, 2020. See Abt Decl. ¶¶ 1–13; Giannone Decl. ¶¶ 9–10. Nor is this meritless
argument properly part of this proceeding, for multiple reasons. First, it is outside the scope of
this case and the Administrative Record. See Williams v. Spencer, 883 F. Supp. 2d 165, 181 n.8
(D.D.C. 2012) (“plaintiff cannot add a new claim through a[] . . . brief”); Sharp v. Rosa Mexicano,
D.C., LLC, 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2007) (“plaintiff may not, through summary
judgment briefs, raise the new claims . . . because plaintiff did not raise them in his complaint, and
did not file an amended complaint”). Indeed, Genus admits this question is outside the scope of
13
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this case. See Motion to Vacate at 9 (“FDA should require Lannett to submit a new application
for reasons entirely aside from those presented in this case.”) (emphasis added). Second, it is
based on the mistaken premise that it could lead to Lannett being forced to withdraw and resubmit
its application, not just correct any deficiency. But the manual Genus cites involves what
ordinarily happens after an FDA finding of “fraudulent” and unreliable “data” in an application.
Id. at 8-9. Even if Genus’s allegations about the Wyoming facility were true, they would be in a
different category altogether; Genus has alleged no problem with Lannett’s data, and FDA has
made and will make no finding of fraud. There is no basis whatsoever to indulge Genus’s wild
speculation that FDA will someday require Lannett to withdraw its application.
Fifth, Genus cries prejudice to Genus. But prejudice to the petitioner is not a factor of the
Allied-Signal test. In any event, just as Genus claims leaving in place Lannett’s approval would
prejudice Genus, vacating that approval would prejudice Lannett. And, the equities impacting the
marketplace and the public, not just Lannett, decisively point to not vacating Lannett’s approval.
See supra § II.D.2 (listing harm that vacatur would cause to the marketplace, public interest, and
Lannett). Moreover, on the subject of equities, it would be unjust to Lannett for its approval to be
vacated on the basis of a missing patent certification that neither Lannett nor FDA understood was
required and that, had it been submitted, would not have impacted the approval of Lannett’s
application nor the timeline for that approval.
G. Should this Court Remand with Vacatur, Lannett Requests that the Court First Allow the Agency Time to Act.
Should this Court vacate FDA’s approval of Numbrino, Lannett requests that the vacatur
14
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not take effect unless FDA fails to act reasonably on remand.4 If Lannett’s approval is vacated, a
stay of that vacatur is warranted based on the considerations discussed above as to the harm and
disruptive consequences to the marketplace, public interest, and Lannett. See supra § II.D.2.
Courts have remanded cases to agencies with vacatur but with a stay of vacatur such that
the vacatur does not go into effect unless the agency fails to act reasonably on remand. See, e.g.,
A.L. Pharma, 62 F.3d at 1492 (on separate issue than that related to competitor data, the D.C.
Circuit remanded with vacatur to take effect 90 days following the issuance of the opinion unless
FDA provided an adequate justification regarding its finding that two drugs were bioequivalent
within 90 days); NAACP v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C. 2018) (staying vacatur
pending actions on remand within 90 days). The availability of this option and the possibility of
further judicial review of Genus’s Counts I and II fully address Genus’s concern that its case may
otherwise be effectively extinguished without any judicial ruling.
III. CONCLUSION
For the foregoing reasons, Lannett respectfully requests the Court reconsider its Opinion
and Order. Lannett and FDA are entitled to summary judgment on all claims. Even if the Court
adheres to its decision to remand, it should do so without vacatur.
4 Lannett would separately seek a stay of any vacatur pending resolution of any appeal of this case, should circumstances warrant that request. Should the Court decide to order vacatur, therefore, Lannett requests that the Court defer the effectiveness of that order until Lannett can seek a stay pending appeal from this Court and, if necessary, from the Court of Appeals.
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October 30, 2020 Respectfully submitted,
/s/ Lori A. Rubin Lori A. Rubin, DC Bar No. 1004240 David A. Hickerson, DC Bar No. 414723 FOLEY & LARDNER LLP 3000 K Street, N.W., Suite 600 Washington, D.C. 20007-5109 (202) 672-5300 dhickerson@foley.com larubin@foley.com
Attorneys for Intervenor-Defendant Lannett Co., Inc.
4811-2892-0779.7 | 2020-10-30 | [
"Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) GENUS LIFESCIENCES, INC., ) ) Plaintiff, ) ) v. ) ) ALEX AZAR, et al., ) Case No. 1:20-cv-00211-TNM ) Defendants, ) ) v. ) ) LANNETT CO., INC., ) ) Intervenor-Defendant. ) ) INTERVENOR-DEFENDANT LANNETT CO., INC.’S MOTION FOR RECONSIDERATION AND OPPOSITION TO MOTION FOR VACATUR i 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 2 of 20 TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 II. DISCUSSION .................................................................................................................... 2 A. The Standard is Met for Reconsideration. ......................................................... 2 B. Lannett Was Not Required to Submit a Patent Certification........................... 2 1. The FDCA Does Not Require Patent Certifications Absent Any Patents. ....................................................................................................... 2 2. Sentence 2’s Reference to “Such an Application” Does Not Mandate a Different Construction.",
"......................................................... 4 3. FDA’s Interpretation of the FDCA and Regulations............................. 5 C. If a Patent Certification Was Required, FDA’s Acceptance and Approval of Lannett’s Application Without a Patent Certification was Harmless Error. .................................................................................................... 5 D. If a Patent Certification Was Required, and This Court Declines to Find Harmless Error, the Allied-Signal Factors Show Remand Without Vacatur is Appropriate. ........................................................................ 6 1. Any Deficiency Was Not Serious and Could be Remedied on Remand. ..................................................................................................... 6 2.",
"Vacatur Would Lead to Disruptive Consequences. ............................... 8 E. Genus’s Arguments Are Contrary to the Law of This Circuit. ........................ 9 F. Each of Genus’s Reasons Arguing for Vacatur Fails. ..................................... 11 G. Should this Court Remand with Vacatur, Lannett Requests that the Court First Allow the Agency Time to Act. ...................................................... 14 III. CONCLUSION ............................................................................................................... 15 ii 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 3 of 20 TABLE OF AUTHORITIES Cases A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) ........................................................................................ 7, 12, 15 ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994) .................................................................................................................... 7 Action on Smoking & Health v. Civ. Aeronautics Bd., 713 F.2d 795 (D.C. Cir. 1983) .................................................................................................. 10 AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.C. Cir. 2007) ......................................................................................... 12 Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146 (D.C. Cir. 1993) ................................................................................................ 1, 6 Am.",
"Great Lakes Ports Ass’n v. Schultz, 962 F.3d 510 (D.C. Cir. 2020) .................................................................................................. 11 Barnhart v. Thomas, 540 U.S. 20 (2003) ...................................................................................................................... 4 Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83 (D.C. Cir. 2020) .................................................................................................... 11 Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001) .................................................................................................. 13 Citizens for Resp. and Ethics in Washington v. Trump, 438 F. Supp. 3d 54 (D.D.C. 2020) ............................................................................................ 11 Clean Wis. v. EPA, 964 F.3d 1145 (D.C. Cir. 2020) ................................................................................................ 11 Heartland Reg’l Med.",
"Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) .................................................................................................. 10 Johnson v. Copyright Royalty Bd., 969 F.3d 363 (D.C. Cir. 2020) .................................................................................................. 10 Lockhart v. United States, 136 S. Ct. 958 (2016) .................................................................................................................. 4 iii 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 4 of 20 NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) .......................................................................................... 15 Nat. Res. Def. Council v EPA, 489 F.3d 1250 (D.C. Cir. 2007) ................................................................................................ 13 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .................................................................................................................... 6 Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93 (D.D.C. 2007) ............................................................................................ 13 Teva Pharms. USA, Inc. v. FDA, 441 F.3d 1 (D.C. Cir. 2006) ...................................................................................................... 11 United Steel v. Mine Safety & Health Admin., 925 F.3d 1279 (D.C. Cir. 2019) .......................................................................................... 10, 11 Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) ................................................................................................................ 4 Williams v. Spencer, 883 F. Supp.",
"2d 165 (D.D.C. 2012) .......................................................................................... 13 Youssef v. Holder, 62 F. Supp. 3d 96 (D.D.C. 2014) ................................................................................................ 2 Zevallos v. Obama, 793 F.3d 106 (D.C. Cir. 2015) .................................................................................................... 6 Statutes 5 U.S.C. § 706 ................................................................................................................................. 5 21 U.S.C. § 355(b)(2)(A) ............................................................................................................................. 3 § 355(b)(2)(B) ............................................................................................................................. 4 § 355(c)(2)(A)(i) ......................................................................................................................... 3 § 355(c)(3) .................................................................................................................................. 4 § 355(c)(3)(C) ............................................................................................................................. 5 Rules Fed. R. Civ. P. 54(b) ....................................................................................................................... 2 iv 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 5 of 20 I. INTRODUCTION1 Lannett asks the Court to reconsider its Memorandum Opinion (Dkt.",
"63) and accompanying Order (Dkt. 64), in part,2 because Lannett was not required to submit a patent certification and because FDA applied the correct timeline for approval. Should the Court not disturb its prior conclusion that Lannett was required to submit a patent certification, Lannett requests the Court find that FDA not requiring a patent certification from Lannett was harmless error (because there was no applicable patent) and therefore FDA did not violate the APA. If, however, this Court leaves in place its September 15, 2020 holding, the appropriate remedy under the Allied-Signal factors is remand to FDA without vacatur. See Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993).",
"Genus does not accept that standard, but it is governing here in the event the Court remands to FDA. Applying that standard here would appropriately result in remand without vacatur. The deficiency is easily corrected: Lannett could simply certify the absence of applicable patents as of the date of its application. Additionally, vacatur would cause enormous disruption to the marketplace (eliminating all competition), to the public (as Genus is likely to raise prices as it previously did when it had the only product on the market), and to Lannett (by causing irreparable harm to Lannett’s market position, inventory, regulatory status, and revenue).",
"Genus’s contrary arguments 1 The Court’s September 15, 2020 Memorandum Opinion (Dkt. 63) is referred to herein as the Opinion, and cited as “Op. at _.” The Complaint (Dkt. 1) is cited herein as “Compl. at ¶ _.” Lannett’s memorandum in support of its motion for summary judgment (Dkt. 28-1) is cited as “Lannett MSJ at _.” Lannett’s Supplemental Brief (Dkt. 55) is cited herein as “Lannett Supp. Br. at _.” Genus’s Motion to Vacate (Dkt. 66) is cited herein as “Motion to Vacate at _.” The terms “APA,” “CRL,” “FDA,” “Genus,” “Lannett,” and “FDCA” are used as defined in Lannett’s MSJ. 2 Lannett does not request reconsideration regarding the Court’s determination that FDA correctly determined Genus’s exclusivity period did not bar FDA from approving Numbrino. 1 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 6 of 20 are legally incorrect, demonstrably false, or both. In the last alternative, Lannett requests that any vacatur not take immediate effect and instead FDA be first given an opportunity to address any deficiencies on remand. II.",
"DISCUSSION A. The Standard is Met for Reconsideration. Under Federal Rule of Civil Procedure 54(b), “any order . . . that adjudicates fewer than all the claims . . . may be revised at any time before the entry of a judgment adjudicating all the claims.” “A motion to reconsider brought under Rule 54(b) may be granted ‘as justice requires.’” Youssef v. Holder, 62 F. Supp. 3d 96, 98 (D.D.C. 2014) (citations omitted).",
"“Considerations . . . include whether the court . . . made a decision beyond the adversarial issues presented to the court.” Id. “[E]ven if the appropriate legal standard does not indicate that reconsideration is warranted, the Court may nevertheless elect to grant a motion for reconsideration if there are other good reasons for doing so.” Id. at 99 (citation omitted). Here, there are good reasons for reconsidering, including that neither Genus’s Complaint nor its summary judgment briefs alleged improper agency action related to the presence or absence of a patent certification, and FDA and Lannett did not make the fulsome arguments they would have had Genus sought relief on that basis (rather, the parties only indirectly and briefly addressed the issue in supplemental briefing). Further, the Court did not consider whether any error was harmless. B. Lannett Was Not Required to Submit a Patent Certification.",
"1. The FDCA Does Not Require Patent Certifications Absent Any Patents. By its plain terms, the FDCA does not require a patent certification from a 505(b)(2) applicant unless the application relies on studies that were conducted for another drug, and that drug is patented or has a patented use that overlaps with the application. The certification 2 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 7 of 20 provisions apply only when the applicant relies on investigations of safety and efficacy that “were conducted” for another, already-approved drug; where there is at least one associated “patent which claims the drug . .",
". or which claims a use for such drug for which the applicant is seeking approval”; and where “information is required to be filed [for that patent] under paragraph (1) or subsection (c).” § 355(b)(2)(A). Paragraph (b)(1) and subsection (c) are the provisions that require new drug applicants to submit patents to the FDA for listing in the Orange Book once the drug is approved. Where there is no such patent, paragraph (b)(2) requires no certification. The Court incorrectly concluded that a “Paragraph I” certification is required when no such patent exists.",
"Op. at 20. In fact, a Paragraph I certification applies only when a patent claiming the drug or use exists and is “required to be filed,” but “has not been filed” with FDA. § 355(c)(2)(A)(i). Lannett submitted its application without relying on any investigations conducted for a patented drug. Genus has conceded as much—that “Genus did not have patents when Lannett first submitted its application,” and Genus’s “Goprelto was not yet approved and, as a result, had no patents listed in FDA’s ‘Orange Book.’” Motion to Vacate at 6; Compl. ¶ 41. It follows that Lannett was not required to include a certification with its application, and that the statutory paragraph governing the timing of approval of “an application filed under subsection (b) which contains a certification” does not govern when FDA could make Lannett’s approval effective.3 3 Genus also argues a patent certification was required with what it calls Lannett’s “resubmission.” Motion to Vacate at 3–5. But Lannett was not required to submit a patent certification at the time of its response to FDA’s Complete Response Letter.",
"This relates to the same dispute in the unresolved Count II over what Genus calls “resubmission.” See Lannett MSJ § IV(B). 3 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 8 of 20 2. Sentence 2’s Reference to “Such an Application” Does Not Mandate a Different Construction. In reasoning that “such an application” refers to “any later competing 505(b)(2) application,” not just one with a Paragraph IV certification, the Court applied an exception to the rule of the last antecedent: “a pronoun or demonstrative adjective that is the subject of a sentence and does not have an antecedent in that sentence ordinarily refers to the subject of the preceding sentence.” Op. at 12–13 (citations omitted). But “structural or contextual evidence” and “other indicia of meaning” can “rebut the last-antecedent inference,” Lockhart v. United States, 136 S. Ct. 958, 965 (2016); Barnhart v. Thomas, 540 U.S. 20, 26 (2003), and the related inference the Court drew, as well as the presumption of consistent usage, Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014). Here several structural features overcomes those inferences. First, reading “such an application” in Sentence 2 to mean any later competing 505(b)(2) application does not work unless “this paragraph” creates a comprehensive set of timelines.",
"It does not: paragraph (c) governs the timing not of every 505(b)(2) application, but only those “contain[ing] a certification.” § 355(c)(3). Because not all 505(b)(2) applications must contain a certification, “this paragraph” does not provide a timeline for all such applications, and the Court’s reading creates a gap that Lannett’s and FDA’s reading avoids. The Court concluded that there is always a timeline in § 355(c)(3) that governs approval of a 505(b)(2) application, but as shown above, the Court over-read the scope of the Paragraph I certification requirement, which applies only when relevant patents exist and are required to be listed but have not been.",
"When there are no patents at all, no certification is required; when there are only method-of-use patents that do not relate to “a use for which the applicant is seeking approval,” only a “statement” is required, not a “certification.” § 355(b)(2)(B). Thus, there are 505(b)(2) applications—including Lannett’s— that do not require certifications, and accordingly, there are 505(b)(2) applications for which § 4 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 9 of 20 355(c)(3)(A)-(C) provide no timeline. The Court’s reading thus creates a broader patent certification requirement than § 355(b)(2)(A) imposes.",
"Second, the rest of Sentence 2 confirms that it is only addressing “the subset of subsequent applications with Paragraph IV certifications,” Op. at 12: it refers to “the thirty-month period referred to in subparagraph (C)”—i.e., the thirty-month Hatch-Waxman stay of approval. Such a period exists only when the application contains a Paragraph IV certification. § 355(c)(3)(C). Because Sentence 2 regulates only applications with a Paragraph IV certification, it provides no basis to set aside FDA’s approval of Lannett’s application. 3. FDA’s Interpretation of the FDCA and Regulations. As described in FDA’s brief filed concurrently with this one, FDA’s interpretation of the FDCA and FDA’s own regulations also did not require Lannett to file a patent certification.",
"C. If a Patent Certification Was Required, FDA’s Acceptance and Approval of Lannett’s Application Without a Patent Certification was Harmless Error. In any event, FDA’s acceptance and approval of Lannett’s application without a patent certification was at most harmless error: because there were no applicable patents, a certification could not have changed the timeline for approval. See Op. at 20-21. The omission of a certification from Lannett’s application—one that neither the agency nor Lannett believed was required—was at most a mere technicality, given there was no patent upon which to certify, and FDA knew it (as indicated by the FDA reviewer checking, “no patent certifications are required” in FDA’s 505(b)(2) assessment of Lannett’s application). A.R. at FDASUPP012173. (An FDA reviewer checked the same box for Genus. A.R. at FDA001303.) The presence or absence of a certification therefore did not affect the substance or the timing of the final agency action Genus is challenging. The APA provides that, in making a determination of unlawful agency action under the APA, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C.",
"§ 706. An error is 5 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 10 of 20 harmless if it is “not germane to the final agency . . . decision.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007). For example, in Zevallos v. Obama, the D.C. Circuit held it would “not invalidate [the agency’s] decision based on procedural error unless the errors alleged could have affected the outcome.” 793 F.3d 106, 115 (D.C. Cir. 2015). The D.C. Circuit held that the agency’s errors, including delay and failure to consider some evidence that it had lost, were harmless because the plaintiff “must,” but could not, “show that a different process would have led [the agency] to a different decision.” Id. Here, Genus cannot show that had FDA required Lannett to submit a patent certification under this Court’s reading, the result would have been different. To the contrary, had Lannett submitted a patent certification under § 355(b)(2)(A), it would have certified there was no applicable patent, and FDA would have reached the same result on the same timeline. See Op.",
"at 20-21. Thus, even on this Court’s interpretation, any error was harmless, and no remand is required because there is no prejudicial error to remedy. D. If a Patent Certification Was Required, and This Court Declines to Find Harmless Error, the Allied-Signal Factors Show Remand Without Vacatur is Appropriate. Should the Court not reconsider its determination, Lannett respectfully submits that the proper remedy is remand to the agency without vacatur. Genus disputes the controlling D.C. Circuit precedent, but the decision whether to remand without vacatur is governed by Allied- Signal. The Allied-Signal test considers “the seriousness of the . . . deficiencies” and “the disruptive consequences of an interim change that may itself be changed.” 988 F.2d at 150–51. 1. Any Deficiency Was Not Serious and Could be Remedied on Remand. The omission of a patent certification was not a “serious” deficiency, given there was no patent to which to certify within the meaning of § 355(b)(2). Moreover, if FDA determines on remand that a patent certification should be filed, Lannett has now furnished a certification nunc 6 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 11 of 20 pro tunc certifying what Genus admits is true (Motion to Vacate at 6): that there were no applicable patents as of September 2017, the date of its initial application.",
"See Declaration of John Abt (“Abt Decl.,” attached as Exhibit 1), ¶ 14. The D.C. Circuit has previously held that FDA has discretion to not revoke approval of an application that was approved despite a deficiency in the submission. In A.L. Pharma, Inc. v. Shalala, the challenger argued that Philips Roxane’s application for an animal drug improperly relied on competitor A.L. Pharma data, and as such, FDA should not have approved the application. 62 F.3d 1484, 1488 (D.C. Cir. 1995). But the D.C. Circuit held that it was within FDA’s discretion to not vacate approval for Philips Roxane’s drug application, including because Philips Roxane later (after approval) cured the deficiency by submitting other data to rely on in place of the competitor’s data. Id. at 1490.",
"Specifically, the D.C. Circuit held, “Even if the agency had violated its regulation when it approved Philips Roxane’s application, A.L.’s proposed remedy of vacatur . . . would be inappropriate in light of Philips Roxane’s replacement of the reference to [the competitor data] in its application with a reference to the identical data in a different master file.” Id. at 1489. The D.C. Circuit further explained, “To the extent that the misrepresentation harmed the FDA’s administrative process, the agency has broad latitude to determine an appropriate response” and held, “It is well within the discretion of the FDA to decide not to penalize the company by withdrawing its approval of [the] NADA [New Animal Drug Application].” Id. at 1489–90 (citing ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994)). This case is the same.",
"If a patent certification was required, FDA may permissibly decide not to revoke Lannett’s approved application, particularly given Lannett can easily cure by certifying the undisputed fact that there was no applicable patent as of the date of its initial 505(b)(2) application and, as noted above, it already has, see Abt Decl. ¶ 14. This is similar to 7 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 12 of 20 how Philips Roxane replaced its data references post-approval. As A.L. Pharma is binding D.C. Circuit precedent that demonstrates that the omission of a patent certification was not serious, and that FDA need not revoke Lannett’s approval on those grounds, the first Allied-Signal factor weighs in favor of remand without vacatur.",
"2. Vacatur Would Lead to Disruptive Consequences. The second factor, too, weighs in favor of remand without vacatur, because vacating FDA’s approval of Lannett’s application would cause immense disruptive consequences in the marketplace, to the public, and to Lannett. That is not just a prediction: it is based on what Genus has previously done in the absence of competition from Lannett. As set forth in the attached Declaration of William Giannone (“Giannone Decl.,” attached as Exhibit 2), Genus and Lannett had competing cocaine hydrochloride solution products from 2018 until Lannett temporarily ceased distribution to customers in August 2019, during the NDA process.",
"Giannone Decl. ¶ 4, 6. Within two months of Lannett exiting the market, Genus implemented a 37% price increase on its product, raising the Wholesale Acquisition Cost (“WAC”) list price from $178 per unit to $245 per 4ml bottle. Id. ¶ 8. If Lannett’s approval is vacated and it is compelled to exit the market, Genus can be expected to raise the price of its product again. Id. Moreover, Lannett’s WAC for its generic product ($220.50 per 4ml bottle) is approximately 10% less than the price Genus charges for its product ($245 per 4ml bottle). Id.",
"¶ 10. Therefore, having Lannett’s product on the market serves the public interest and the marketplace by providing consumers choice and creating price competition. Removing that choice and that price competition would be disruptive. In addition, vacatur of Lannett’s approval could lead to shortages of the product in the market. The Drug Enforcement Administration (“DEA”) limits the amount of cocaine raw material a company may purchase for use in its manufacturing process of the finished dosage form. 8 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 13 of 20 Typically, the DEA grants quota requests for a given year based on the company’s prior year sales of its product. If Lannett has its approval vacated and later reinstated, it is likely to affect Lannett’s ability to obtain sufficient quota to supply its customers upon return to the market. Id. ¶ 11. In addition to disruptive consequences to the marketplace and the public interest, there are also disruptive consequences to Lannett. Customers are concerned with being able to obtain consistent supply, and Lannett prides itself on being able to deliver such consistent reliable supply. Id. ¶ 13.",
"After establishing an excellent reputation of consistently and reliably supplying this product, Lannett’s reputation would suffer if, for a second time in two years, it was forced to withdraw its product from the market. Id. ¶¶ 2–6, 13. Moreover, if FDA’s approval of Lannett’s NDA were vacated and later reinstated, Lannett estimates it would lose revenue of $1–2 million each quarter for the foreseeable future until the approval was reinstated, id. ¶ 14, not to mention it would incur losses associated with being unable to recoup its $10 million investment in securing approval of its cocaine hydrochloride product. Id.",
"¶ 15. Lannett currently has finished product, active pharmaceutical ingredients used to manufacture its product, and other components in inventory valued at approximately $1.8 million. Over $1.3 million of a controlled substance excipient used to manufacture the raw material is currently consigned to a vendor. If Lannett’s NDA were vacated and later reinstated, the material consigned to the vendor would likely need to be destroyed. Id. ¶ 12. Lastly, Lannett has contracts with certain of its customers that impose monetary penalties if it is unable to supply product.",
"If Lannett’s NDA were vacated and later reinstated, Lannett could be subject to significant contractual monetary penalties arising from being unable to supply customers to whom it was contractually obligated. Id. ¶ 16. E. Genus’s Arguments Are Contrary to the Law of This Circuit. The cases Genus relies upon are far afield and do not erode the applicability of the Allied- 9 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 14 of 20 Signal test. See Motion to Vacate at 1–3. Each of these cases did not qualify for remand without vacatur for one or more of the following reasons: First, they dealt with agency action with serious defects under factor 1 of the Allied-Signal test, such as failure to follow notice and comment procedures or explanations so inadequate that the reviewing court could not evaluate the agency explanation.",
"See e.g., Action on Smoking & Health v. Civ. Aeronautics Bd., 713 F.2d 795, 802 (D.C. Cir. 1983) (vacating agency’s attempt to revoke rule without providing proper notice and comment); Johnson v. Copyright Royalty Bd., 969 F.3d 363, 392 (D.C. Cir. 2020) (vacating Copyright Royalty Board’s definition of “Service Revenue” because Board could not identify the source for its statutory authority to adopt that new definition). Per the D.C. Circuit, “Failure to provide the required notice and to invite public comment . .",
". is a fundamental flaw that ‘normally’ requires vacatur of the rule . . . under the first Allied-Signal factor”; “[s]o too, when an agency’s explanation of the basis and purpose of its rule is so inadequate that the reviewing court cannot evaluate it.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009). In contrast to these cases, any defect here was not serious under Allied-Signal because it is so readily curable. See supra § II.D.1. Second, these cases did not involve apparent very disruptive consequences of vacatur under factor 2 of the Allied-Signal test.",
"For example, vacatur that results in the reinstatement of prior agency rules in place before the challenged rules frequently is not disruptive at all or is only slightly disruptive, as it merely restores the status quo ex ante. See, e.g., United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (restoring the previous standard that had been replaced by the challenged rule). Here, as detailed supra § II.D.2, vacatur would be highly disruptive, not only to Lannett’s operations, but to the marketplace and public interest. Indeed, in some of Genus’s cases, the D.C.",
"Circuit vacated the agency action because the 10 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 15 of 20 agency did not argue the Allied-Signal factors compelled any other outcome. See, e.g., Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 117 (D.C. Cir. 2020) (vacatur was appropriate because “the Railroad Administration has neither asked the court nor given us any reason to depart from that standard course of action [of vacatur]”); United Steel, 925 F.3d at 1287 (vacatur was appropriate because the agency “explain[ed] neither how the [challenged rule] can be saved nor how vacatur [would] cause disruption”). Third, at least one of Genus’s cases involved vacatur after the agency had been given an opportunity on remand to address defects but had failed to do so.",
"See, e.g., Teva Pharms. USA, Inc. v. FDA, 441 F.3d 1, 3–5 (D.C. Cir. 2006) (vacating agency action after agency had an opportunity on remand to address defects and failed on remand to act in accord with the D.C. Circuit’s rulings). Genus also cites dissents and other separate opinions that conflict with binding D.C. Circuit precedent. See Motion to Vacate at 2. But remand without vacatur is alive and well in the D.C.",
"Circuit. See, e.g., Clean Wis. v. EPA, 964 F.3d 1145, 1177 (D.C. Cir. 2020) (remanding without vacatur); Am. Great Lakes Ports Ass’n v. Schultz, 962 F.3d 510, 519 (D.C. Cir. 2020) (affirming remand without vacatur). “[T]his Court is bound by Circuit precedent unless and until the Court of Appeals revises its decision or the decision is overruled.” Citizens for Resp. and Ethics in Washington v. Trump, 438 F. Supp. 3d 54, 62 n. 5 (D.D.C. 2020). F. Each of Genus’s Reasons Arguing for Vacatur Fails. Rather than address the Allied-Signal test on its own terms, Genus supplies five “reasons” it believes vacatur is appropriate. Not only do Genus’s “reasons” not track the appropriate standard, but in large part they are demonstrably false. First, Genus argues that Lannett must submit a patent certification prior to application 11 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 16 of 20 approval, and thus Numbrino’s approval must be vacated in any event (Motion to Vacate at 3), but Genus is incorrect.",
"The statutory reference to “each patent . . . which claims a use for such drug for which the applicant is seeking approval” identifies which patents must be covered in a certification, not whether the certification can be updated after approval. And the FDA regulations Genus cites, 21 C.F.R. § 314.50(i)(6), deal with amending a previously filed certification, not with whether FDA can accept a certification to cure a deficiency identified by this Court. Moreover, post-approval correction of harmless deficiencies is routine in FDA practice. As the D.C. Circuit held in A.L. Pharma, 62 F.3d at 1489-90, just like FDA permissibly accepted Philips Roxane’s replacement data post-approval, FDA is permitted to accept a patent certification from Lannett post-approval. See supra at 7. This is within FDA’s discretion. Second, Genus argues vacatur is appropriate because Genus believes it has identified other defects with FDA’s approval of Lannett’s application.",
"Motion to Vacate at 3-6. But under Allied- Signal, Genus cannot bootstrap claims that the Court has not adjudicated into grounds for relief on the issue the Court has resolved. It is the Court, not Genus, that identifies the “deficiencies” to be remedied. The cases Genus cites in support of this proposition do not support Genus’s argument. In AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.C. Cir. 2007), before noting in passing that there were other unresolved challenges to the agency rule, the D.C. Circuit had already decided to vacate the rule based on a consideration of the Allied-Signal factors: the rule’s procedural invalidity was “unquestionably a ‘serious’ deficiency,” id. at 91, and there was a “low likelihood that vacatur would cause significant disruptions,” id. In Nat. Res. Def. Council v. EPA, the D.C. Circuit vacated EPA’s “Boilers Rule” in its entirety—not because there were additional challenges to rule not yet reached but rather primarily “[g]iven the likelihood (if not certainty) that the Boilers Rule will change substantially as a result of our vacatur.” 489 F.3d 1250, 1261 (D.C. Cir. 2007).",
"In 12 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 17 of 20 that case, there was no reason to reach the additional challenges, because the challenge the Court adjudicated made it nearly certain the rule could not survive. That is not so here, where FDA’s approval of Numbrino could stand post-remand. Lastly, while the D.C. Circuit vacated the agency rule in Cement Kiln Recycling Coal. v. EPA, the D.C. Circuit’s opinion concluded with the suggestion that any party to the proceeding “file a motion to delay issuance of the mandate,” including “to request .",
". . that the current standards remain in place” while the rule is on remand. 255 F.3d 855, 872 (D.C. Cir. 2001). Here, Lannett similarly requests the approval of its Numbrino remain in place while the approval is on remand. Third, Genus argues it is not likely FDA could remedy the “complicated issues” on remand. Motion to Vacate at 8. This argument by Genus is wrong, because as demonstrated above, FDA can simply accept a post-approval certification. See supra 6–8, 12. Fourth, Genus alleges with no support that Lannett made an untrue statement in its application as to where its drug would be manufactured. Motion to Vacate at 8–9. In fact, Lannett underwent the proper process and utilized FDA’s well-established regulatory procedure to transfer the manufacturing of Numbrino to its plant in Carmel, New York. Lannett did not launch its Numbrino manufactured in Carmel, New York until after receiving FDA’s authorization for the change on March 10, 2020. See Abt Decl.",
"¶¶ 1–13; Giannone Decl. ¶¶ 9–10. Nor is this meritless argument properly part of this proceeding, for multiple reasons. First, it is outside the scope of this case and the Administrative Record. See Williams v. Spencer, 883 F. Supp. 2d 165, 181 n.8 (D.D.C. 2012) (“plaintiff cannot add a new claim through a[] . . . brief”); Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2007) (“plaintiff may not, through summary judgment briefs, raise the new claims . . . because plaintiff did not raise them in his complaint, and did not file an amended complaint”). Indeed, Genus admits this question is outside the scope of 13 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 18 of 20 this case. See Motion to Vacate at 9 (“FDA should require Lannett to submit a new application for reasons entirely aside from those presented in this case.”) (emphasis added).",
"Second, it is based on the mistaken premise that it could lead to Lannett being forced to withdraw and resubmit its application, not just correct any deficiency. But the manual Genus cites involves what ordinarily happens after an FDA finding of “fraudulent” and unreliable “data” in an application. Id. at 8-9. Even if Genus’s allegations about the Wyoming facility were true, they would be in a different category altogether; Genus has alleged no problem with Lannett’s data, and FDA has made and will make no finding of fraud. There is no basis whatsoever to indulge Genus’s wild speculation that FDA will someday require Lannett to withdraw its application. Fifth, Genus cries prejudice to Genus. But prejudice to the petitioner is not a factor of the Allied-Signal test.",
"In any event, just as Genus claims leaving in place Lannett’s approval would prejudice Genus, vacating that approval would prejudice Lannett. And, the equities impacting the marketplace and the public, not just Lannett, decisively point to not vacating Lannett’s approval. See supra § II.D.2 (listing harm that vacatur would cause to the marketplace, public interest, and Lannett). Moreover, on the subject of equities, it would be unjust to Lannett for its approval to be vacated on the basis of a missing patent certification that neither Lannett nor FDA understood was required and that, had it been submitted, would not have impacted the approval of Lannett’s application nor the timeline for that approval. G. Should this Court Remand with Vacatur, Lannett Requests that the Court First Allow the Agency Time to Act. Should this Court vacate FDA’s approval of Numbrino, Lannett requests that the vacatur 14 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 19 of 20 not take effect unless FDA fails to act reasonably on remand.4 If Lannett’s approval is vacated, a stay of that vacatur is warranted based on the considerations discussed above as to the harm and disruptive consequences to the marketplace, public interest, and Lannett. See supra § II.D.2.",
"Courts have remanded cases to agencies with vacatur but with a stay of vacatur such that the vacatur does not go into effect unless the agency fails to act reasonably on remand. See, e.g., A.L. Pharma, 62 F.3d at 1492 (on separate issue than that related to competitor data, the D.C. Circuit remanded with vacatur to take effect 90 days following the issuance of the opinion unless FDA provided an adequate justification regarding its finding that two drugs were bioequivalent within 90 days); NAACP v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C. 2018) (staying vacatur pending actions on remand within 90 days). The availability of this option and the possibility of further judicial review of Genus’s Counts I and II fully address Genus’s concern that its case may otherwise be effectively extinguished without any judicial ruling. III. CONCLUSION For the foregoing reasons, Lannett respectfully requests the Court reconsider its Opinion and Order. Lannett and FDA are entitled to summary judgment on all claims.",
"Even if the Court adheres to its decision to remand, it should do so without vacatur. 4 Lannett would separately seek a stay of any vacatur pending resolution of any appeal of this case, should circumstances warrant that request. Should the Court decide to order vacatur, therefore, Lannett requests that the Court defer the effectiveness of that order until Lannett can seek a stay pending appeal from this Court and, if necessary, from the Court of Appeals. 15 4811-2892-0779.7 Case 1:20-cv-00211-TNM Document 68 Filed 10/30/20 Page 20 of 20 October 30, 2020 Respectfully submitted, /s/ Lori A. Rubin Lori A. Rubin, DC Bar No. 1004240 David A. Hickerson, DC Bar No. 414723 FOLEY & LARDNER LLP 3000 K Street, N.W., Suite 600 Washington, D.C. 20007-5109 (202) 672-5300 dhickerson@foley.com larubin@foley.com Attorneys for Intervenor-Defendant Lannett Co., Inc. 4811-2892-0779.7"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/150512162/ | 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 .
Election/Restriction REQUIREMENT FOR UNITY OF INVENTION As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art. The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions: As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process. Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c). This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1. The species are as follows: Species A: figs 1-9 Species B: fig. 10-12 Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election. Claim 1. The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: Species A and B lack unity of invention because the groups do not share the same or corresponding technical feature, where Species B utilizes finishing cage 400 having an extended working scaffold for the finishing work of the building, a feature which is not utilized in Species A. Therefore, the groups do not share the same or corresponding technical feature. A telephone call was made to attorney Ryan Pool on 01/27/2022 to request an oral election to the above restriction requirement, but did not result in an election being made. Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species or invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention. The election of an invention or species may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be Should applicant traverse on the ground that the inventions have unity of invention (37 CFR 1.475(a)), applicant must provide reasons in support thereof. Applicant may submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. Where such evidence or admission is provided by applicant, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103(a) of the other invention. Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i). The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIREF M MEKHAEIL whose telephone number is (571)270-5334. The examiner can normally be reached 10-7 Mon-Fri. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Cahn can be reached on 571-270-5616. 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.M.M/Examiner, Art Unit 3634 /DANIEL P CAHN/Supervisory Patent Examiner, Art Unit 3634 | 2022-02-01T15:24:29 | [
"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/Restriction REQUIREMENT FOR UNITY OF INVENTION As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.",
"The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions: As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories: (2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.",
"Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c). This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1. The species are as follows: Species A: figs 1-9 Species B: fig.",
"10-12 Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election. Claim 1. The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: Species A and B lack unity of invention because the groups do not share the same or corresponding technical feature, where Species B utilizes finishing cage 400 having an extended working scaffold for the finishing work of the building, a feature which is not utilized in Species A.",
"Therefore, the groups do not share the same or corresponding technical feature. A telephone call was made to attorney Ryan Pool on 01/27/2022 to request an oral election to the above restriction requirement, but did not result in an election being made. Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species or invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention. The election of an invention or species may be made with or without traverse. To preserve a right to petition, the election must be made with traverse.",
"If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be Should applicant traverse on the ground that the inventions have unity of invention (37 CFR 1.475(a)), applicant must provide reasons in support thereof. Applicant may submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. Where such evidence or admission is provided by applicant, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C.",
"103(a) of the other invention. Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i). The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder.",
"All claims directed to a nonelected process invention must In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims.",
"Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIREF M MEKHAEIL whose telephone number is (571)270-5334. The examiner can normally be reached 10-7 Mon-Fri. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Cahn can be reached on 571-270-5616. 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.M.M/Examiner, Art Unit 3634 /DANIEL P CAHN/Supervisory Patent Examiner, Art Unit 3634"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-06.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. Their orthopedist’s unexplained findings of significant limitations in the cervical and lumbar spine (see Yamamoto v Carled Cab Corp., 66 AD3d 603 [1st Dept 2009]) conflict with their findings of an absence of serious injury to the spine (Feaster v Boulabat, 77 AD3d 440, 440-441 [1st Dept 2010]). Defendants also failed to submit objective evidence of the absence of any spinal injuries or abnormalities. Nor did they submit any expert opinion that plaintiffs alleged injuries were not caused by the accident. Because defendants failed to meet their burden, their motion must be denied, regardless of the sufficiency of the opposing papers (see Escotto v Vallejo, 95 AD3d 667, 668 [1st Dept 2012]). Concur— Gonzalez, EJ, Sweeny, Acosta, Renwick and Manzanet-Daniels, JJ. | 01-13-2022 | [
"Defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. Their orthopedist’s unexplained findings of significant limitations in the cervical and lumbar spine (see Yamamoto v Carled Cab Corp., 66 AD3d 603 [1st Dept 2009]) conflict with their findings of an absence of serious injury to the spine (Feaster v Boulabat, 77 AD3d 440, 440-441 [1st Dept 2010]). Defendants also failed to submit objective evidence of the absence of any spinal injuries or abnormalities. Nor did they submit any expert opinion that plaintiffs alleged injuries were not caused by the accident.",
"Because defendants failed to meet their burden, their motion must be denied, regardless of the sufficiency of the opposing papers (see Escotto v Vallejo, 95 AD3d 667, 668 [1st Dept 2012]). Concur— Gonzalez, EJ, Sweeny, Acosta, Renwick and Manzanet-Daniels, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5876498/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
chief_counsel office of number info release date cc tege eoeg et1 postn-109662-07 uil department of the treasury internal_revenue_service washington dc date internal_revenue_service national_office service_center advice from memorandum for charles felthaus program manager philadelphia accounts manager planning and analysis staff michael a swim senior technician reviewer employment_tax branch office of division counsel associate chief_counsel tax exempt and government entities subject fica refund claims based upon the case of north dakota state university v united_states this revises a service_center advice sca issued date in connection with questions posed by the philadelphia service_center concerning how to process refund claims filed by taxpayers based on the decision in 255_f3d_599 8th cir this revision reflects the service’s modification of its litigating position related to the north dakota state university case set forth in revised action on decision aod date in accordance with sec_6110 this service_center advice should not be cited as precedent issue whether service centers should make refund payments to taxpayers who file claims for refunds of federal_insurance_contributions_act fica_taxes paid based upon the north dakota state university decision conclusion service centers should make refunds of fica_taxes only to taxpayers having claims that arise within the jurisdiction of the eighth circuit of the united_states court_of_appeals that have the exact facts as the facts in north dakota state university and only to the extent that the relevant payments were made before date cases having the exact facts are cases involving payments made to college or university professors in exchange for the relinquishment of their tenure rights all other claims of refund of fica_taxes that cite to the north dakota state university decision should be denied discussion the eighth circuit of the united_states court_of_appeals is the first circuit_court to address the issue of whether payments made to tenured faculty members under an early retirement program are wages subject_to fica_taxes when the eighth circuit held in north dakota state university that a payment made to a tenured faculty_member under north dakota state university’s early retirement program was made in exchange for the relinquishment of the tenured faculty member’s contractual and constitutionally protected tenure rights rather than as remuneration for services to the university it cited revrul_58_301 1958_1_cb_231 as support for its decision in an action on decision aod date the original action on decision the service did not acquiesce in the eighth circuit’s decision in north dakota state university while the service disagreed with the court’s analysis that the case was analogous to rev_rul it nevertheless recognized the precedential effect of the decision to cases appealable to the eighth circuit and stated that it would follow the decision within the eighth circuit with respect to cases that had the exact facts of north dakota state university exact facts are cases involving payments to college or university professors made in exchange for the relinquishment of their tenure rights consistent with this aod the service issued sca to explain how service centers should process refund claims filed by taxpayers citing this decision revrul_58_301 1958_1_cb_23 concludes that a lump sum payment received by an employee as consideration for his agreement to cancel the remaining period of a five-year employment contract during the second year of the term and to relinquish his contract rights is ordinary_income not capital_gain and is includible in his gross_income in the year of receipt the ruling further concludes that the payment is not subject_to fica and federal_income_tax withholding subsequently on date the service issued revrul_2004_110 2004_2_cb_960 which modified and superseded revrul_58_301 revrul_2004_110 holds that an amount_paid to an employee as consideration for the cancellation of an employment contract and relinquishment of contract rights is ordinary_income and wages for purposes of fica the federal_unemployment_tax_act futa and federal_income_tax withholding revrul_2004_110 states that revrul_58_301 erred in its analysis by failing to apply the code and regulations appropriately to the question of whether the payments made in cancellation of the employment contract were wages revrul_2004_110 under the authority of sec_7805 also provides that the service will not apply this ruling to any payment made before date provided that the payment is made under facts and circumstances that are substantially the same as in revrul_58_301 to reflect the issuance of revrul_2004_110 and the change in its published rulings the service recently issued revised action on decision aod date with respect to north dakota state university aod provides that the service will follow north dakota state university within the eighth circuit only with respect to cases that have the exact facts as that case and only to the extent that payments were made before date - that is during the period of time when the service made relief available to cases falling under revrul_58_301 consistent with the original action on decision the service will continue to litigate cases in the eighth circuit involving early retirement payments but otherwise having different facts from north dakota state university regardless of when the payments were made moreover the service will continue to take the position that early retirement payments made to tenured professors are remuneration for services subject_to fica_taxes in all cases in other circuits consistent with the revised action on decision we are modifying sca concerning how service centers should process taxpayer refund claims for the fica_taxes withheld and paid_by their employers based upon the north dakota state university decision service centers should deny all refund claims of fica_taxes filed that cite the north dakota state university decision as support for issuing the refund unless the taxpayer’s claim concerns a case that arises within the jurisdiction of the eighth circuit has the exact facts as the north dakota state university case and the subject payment to college or university professors made in exchange for the relinquishment of their tenure rights was made before date in those cases the taxpayer must submit adequate proof of tenured status and a copy of the early retirement agreement to support a claim_for_refund of fica_taxes ----- ------------- if you have any additional questions please contact ------------------at | [
"chief_counsel office of number info release date cc tege eoeg et1 postn-109662-07 uil department of the treasury internal_revenue_service washington dc date internal_revenue_service national_office service_center advice from memorandum for charles felthaus program manager philadelphia accounts manager planning and analysis staff michael a swim senior technician reviewer employment_tax branch office of division counsel associate chief_counsel tax exempt and government entities subject fica refund claims based upon the case of north dakota state university v united_states this revises a service_center advice sca issued date in connection with questions posed by the philadelphia service_center concerning how to process refund claims filed by taxpayers based on the decision in 255_f3d_599 8th cir this revision reflects the service’s modification of its litigating position related to the north dakota state university case set forth in revised action on decision aod date in accordance with sec_6110 this service_center advice should not be cited as precedent issue whether service centers should make refund payments to taxpayers who file claims for refunds of federal_insurance_contributions_act fica_taxes paid based upon the north dakota state university decision conclusion service centers should make refunds of fica_taxes only to taxpayers having claims that arise within the jurisdiction of the eighth circuit of the united_states court_of_appeals that have the exact facts as the facts in north dakota state university and only to the extent that the relevant payments were made before date cases having the exact facts are cases involving payments made to college or university professors in exchange for the relinquishment of their tenure rights all other claims of refund of fica_taxes that cite to the north dakota state university decision should be denied discussion the eighth circuit of the united_states court_of_appeals is the first circuit_court to address the issue of whether payments made to tenured faculty members under an early retirement program are wages subject_to fica_taxes when the eighth circuit held in north dakota state university that a payment made to a tenured faculty_member under north dakota state university’s early retirement program was made in exchange for the relinquishment of the tenured faculty member’s contractual and constitutionally protected tenure rights rather than as remuneration for services to the university it cited revrul_58_301 1958_1_cb_231 as support for its decision in an action on decision aod date the original action on decision the service did not acquiesce in the eighth circuit’s decision in north dakota state university while the service disagreed with the court’s analysis that the case was analogous to rev_rul it nevertheless recognized the precedential effect of the decision to cases appealable to the eighth circuit and stated that it would follow the decision within the eighth circuit with respect to cases that had the exact facts of north dakota state university exact facts are cases involving payments to college or university professors made in exchange for the relinquishment of their tenure rights consistent with this aod the service issued sca to explain how service centers should process refund claims filed by taxpayers citing this decision revrul_58_301 1958_1_cb_23 concludes that a lump sum payment received by an employee as consideration for his agreement to cancel the remaining period of a five-year employment contract during the second year of the term and to relinquish his contract rights is ordinary_income not capital_gain and is includible in his gross_income in the year of receipt the ruling further concludes that the payment is not subject_to fica and federal_income_tax withholding subsequently on date the service issued revrul_2004_110 2004_2_cb_960 which modified and superseded revrul_58_301 revrul_2004_110 holds that an amount_paid to an employee as consideration for the cancellation of an employment contract and relinquishment of contract rights is ordinary_income and wages for purposes of fica the federal_unemployment_tax_act futa and federal_income_tax withholding revrul_2004_110 states that revrul_58_301 erred in its analysis by failing to apply the code and regulations appropriately to the question of whether the payments made in cancellation of the employment contract were wages revrul_2004_110 under the authority of sec_7805 also provides that the service will not apply this ruling to any payment made before date provided that the payment is made under facts and circumstances that are substantially the same as in revrul_58_301 to reflect the issuance of revrul_2004_110 and the change in its published rulings the service recently issued revised action on decision aod date with respect to north dakota state university aod provides that the service will follow north dakota state university within the eighth circuit only with respect to cases that have the exact facts as that case and only to the extent that payments were made before date - that is during the period of time when the service made relief available to cases falling under revrul_58_301 consistent with the original action on decision the service will continue to litigate cases in the eighth circuit involving early retirement payments but otherwise having different facts from north dakota state university regardless of when the payments were made moreover the service will continue to take the position that early retirement payments made to tenured professors are remuneration for services subject_to fica_taxes in all cases in other circuits consistent with the revised action on decision we are modifying sca concerning how service centers should process taxpayer refund claims for the fica_taxes withheld and paid_by their employers based upon the north dakota state university decision service centers should deny all refund claims of fica_taxes filed that cite the north dakota state university decision as support for issuing the refund unless the taxpayer’s claim concerns a case that arises within the jurisdiction of the eighth circuit has the exact facts as the north dakota state university case and the subject payment to college or university professors made in exchange for the relinquishment of their tenure rights was made before date in those cases the taxpayer must submit adequate proof of tenured status and a copy of the early retirement agreement to support a claim_for_refund of fica_taxes ----- ------------- if you have any additional questions please contact ------------------at"
]
| 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
The applicant amended claims 1, 4, 7-11, 19, and 20 in the amendment received on 01-06-2021.
The applicant canceled claim 6 in the amendment received on 01-06-2021.
The claims 1-5, and 7-20 are pending.
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 with respect to claims 1-5, and 7-20 have been considered but are moot in view of the new ground(s) of rejection.
A. Applicant's argument with respect to claims 1-5, and 7-20, are based on newly amended matter and are addressed in the rejection below.
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 of this title, 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.
Claims 1-6, 15 and 19-20 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1).
With respect to claim 1, O’Connor teaches a processor, (i.e., section 0004 teaches a processor). O’Connor teaches cause a host to generate one or more flow events associated with a workload based on metadata associated with the workload, (i.e., section 0156 teaches flow events and metadata). O’Connor teaches and process the one or more flow events generated by the host to generate one or more corresponding scalable network flow events, (i.e., section 0160 O’Connor teaches wherein the one or more corresponding scalable network flow events combine the metadata associated with the workload with the information associated with the workload, (i.e., section 0160 teaches creating control flow event packets and section 0161 teaches CFE packets may fuse with EVD packets which include metadata; scalable network flow events as defined by the specification is an flow event combined with metadata). O’Connor teaches a communication interface coupled to the processor and configured to forward a flow log comprising the one or more corresponding scalable network flow events to a flow log receiver, (i.e., section 0163 teaches updating logs; ). O’Connor teaches aggregate a plurality of scalable network flow events in a flow log, wherein the flow log indicates that the workload is associated with at least a first internet protocol address and a second internet protocol address, (i.e., section 0160 teaches creating control flow event packets and section 0161 teaches CFE packets may fuse with EVD packets which include metadata; scalable network flow events as defined by the specification is an flow event combined with metadata). O’Connor discloses the claimed subject matter as discussed above except Wherein the metadata associated with the workload at least includes a workload identity, wherein the one or more flow events associated with the workload include ephemeral information associated with the workload, wherein the ephemeral information associated with the workload at least includes an internet protocol address associated with the workload; and combine the metadata associated with the workload with the ephemeral information associated with the workload. However, Kulkarni teaches Wherein the metadata associated with the workload at least includes a workload identity, wherein the one or more flow events associated with the workload include ephemeral information associated with the workload, wherein the ephemeral information associated with the workload at least includes an internet protocol address associated with the workload; and combine the metadata associated with the workload with the ephemeral information associated with the workload, (i.e., section 0031 teaches metadata which includes thread or workload name or id and a network address or client address) in order to allow better detection and correction of errors ( section 0012). Therefore, based on O’Connor in view of Kulkarni, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Kulkarni to the system of O’Connor in order to allow better detection and correction of errors.
wherein the processor is configured to receive the metadata associated with the workload, wherein the workload is one of a plurality of workloads hosted on the host, (i.e., section 0237 teaches plurality or EVD packets which include metadata related to workloads; section 0121 teaches parallel workloads).
With respect to claim 3, O’Connor teaches wherein the flow log receiver is configured to store the one or more corresponding scalable network flow events in a flow log store, (i.e., section 0163 teaches logs; section 0230 teaches storage).
With respect to claim 4, O’Connor teaches wherein the metadata associated with the workload includes at least one of a cluster identity associated with the workload, a namespace associated with the workload, the workload identity, one or more labels associated with the workload, or a network policy associated with the workload, (i.e., section 0167 teaches using fields to identify the workload).
With respect to claim 5, O’Connor teaches wherein the one or more flow events generated by the host include at least one of an internet protocol address associated with a source workload, a source port associated with the source workload, an internet protocol address associated with a destination workload, a destination port associated with the destination workload, a protocol, information indicating whether the communication was permitted or denied, or information detailing which policies resulted in the communication being permitted or denied, (i.e., section 0175 teaches address; section 0201 teaches includes information about the fault).
With respect to claim 15, O’Connor teaches wherein the flow log receiver is configured to receive a plurality of flow logs from a plurality of hosts, wherein the plurality of flow logs includes the flow log and the plurality of hosts includes the host, (i.e., section 0163 teaches logs; section 0230 teaches storage).
With respect to claim 19, the limitations of claim 19 are rejected in the analysis of claim 1 above, and the claim is rejected on that basis. With respect to claim 20, the limitations of claim 20 are rejected in the analysis of claim 1 above, and the claim is rejected on that basis.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Wilcox et al. (US 20120089999 A1).
With respect to claim 12, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to prevent the workload from communicating with one or more other workloads until the metadata associated with the workload is received. Wilcox teaches wherein the processor is further configured to prevent the workload from communicating with one or more other workloads until the metadata associated with the workload is received, (i.e., section 0018 teaches preventing communications until metadata is analyzed) in order to verify metadata (abstract). Therefore, based on O’Connor in view of Kulkarni and further in view of Wilcox, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Wilcox to the system of O’Connor and Kulkarni in order to verify metadata.
Claim 7, 11 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Schuster et al. (US 20150081618 A1).
With respect to claim 7, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a hierarchy inferred from the metadata associated with the workload. However, Schuster teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a hierarchy inferred from the metadata associated with the workload, (i.e., section 0051 teaches using hierarchy or ordered or grouped or aligning data based on metadata and a schema and aggregating or combining data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data.
With respect to claim 11, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a time interval. However, Schuster teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a time interval, (i.e., section 0026 teaches time data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the
With respect to claim 16, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the flow log receiver is configured to aggregate the plurality of flow logs based on at least one of a hierarchy inferred from the metadata associated with the workload, an entropy analysis of the metadata associated with the workload, a replication identity, ephemeral elements of the one or more flow events, or a time interval. However, Schuster teaches wherein the flow log receiver is configured to aggregate the plurality of flow logs based on at least one of a hierarchy inferred from the metadata associated with the workload, an entropy analysis of the metadata associated with the workload, a replication identity, ephemeral elements of the one or more flow events, or a time interval, (i.e., section 0026 teaches time data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data.
wherein the flow log receiver is configured to perform periodic aggregation on flow events stored in a flow log store. However, Schuster teaches wherein the flow log receiver is configured to perform periodic aggregation on flow events stored in a flow log store, (i.e., section 0051 teaches using hierarchy or ordered or grouped or aligning data based on metadata and a schema and aggregating or combining data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data.
Claim 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Foremski et al. (US 20170359227 A1).
With respect to claim 8, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on an entropy analysis of the metadata associated with the workloads. Foremski teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on an entropy analysis of the metadata associated with the workloads, (i.e., section 0007 teaches entropy analysis of log data) in order to compute entropies on a sample set (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Foremski, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Foremski to the system of O’Connor and Kulkarni in order to compute entropies on a sample set.
With respect to claim 10, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on ephemeral elements of the one or more flow events. Foremski teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on ephemeral elements of the one or more flow events, (i.e., section 0030 teaches ephemeral elements) in order to compute entropies on a sample set (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Foremski, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of .
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Cruz et al. (US 10038624 B1).
With respect to claim 9, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a replication identity. However, Cruz teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a replication identity, (i.e., col. 8, lines 36-50 teaches aggregate groups based on replication id)in order to replicate and filter multicast packet in a physical network. Therefore, based on O’Connor in view of Kulkarni in view of Cruz, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Cruz to the system of O’Connor and Kulkarni in order to replicate and filter multicast packet in a physical network.
Claims 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Enderwick (US 8918860 B1).
With respect to claim 13, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to permit the one or more flow events based on a network policy. However, Enderwick teaches wherein the processor is further configured to permit the one or more flow events based on a network policy, (i.e., col. 2, lines 23-34 teaches using a network policy to permit transmission) in order to establish secure mobile communications (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Enderwick, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Enderwick to the system of O’Connor and Kulkarni in order to establish secure mobile communications.
With respect to claim 14, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the network policy indicates one or more other workloads with which the workload is permitted to communicate. However, Enderwick teaches wherein the network policy indicates one or more other workloads with which the workload is permitted to communicate, (i.e., col. 2, lines 23-34 teaches .
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Barykin et al. (US 20150032707 A1).
With respect to claim 18, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the flow log receiver is configured to remove one or more flow events from a flow log store based on one or more retention policies. However, Barykin teaches wherein the flow log receiver is configured to remove one or more flow events from a flow log store based on one or more retention policies, (i.e., section 0062 teaches removal of log data based on retention policies) in order to allow for management of data(abstract). Therefore, based on O’Connor in view of Kulkarni in view of Barykin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of .
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 JOEL MESA whose telephone number is (571)270-7211. The examiner can normally be reached on M-F 9AM-5PM.
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.
JOEL MESA Examiner Art Unit 2447
/J.M/Examiner, Art Unit 2447
/George C Neurauter, Jr./Primary Examiner, Art Unit 2447 | 2021-06-18T14:50:52 | [
"DETAILED ACTION The applicant amended claims 1, 4, 7-11, 19, and 20 in the amendment received on 01-06-2021. The applicant canceled claim 6 in the amendment received on 01-06-2021. The claims 1-5, and 7-20 are pending. 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 with respect to claims 1-5, and 7-20 have been considered but are moot in view of the new ground(s) of rejection. A. Applicant's argument with respect to claims 1-5, and 7-20, are based on newly amended matter and are addressed in the rejection below. 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 of this title, 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. Claims 1-6, 15 and 19-20 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1). With respect to claim 1, O’Connor teaches a processor, (i.e., section 0004 teaches a processor). O’Connor teaches cause a host to generate one or more flow events associated with a workload based on metadata associated with the workload, (i.e., section 0156 teaches flow events and metadata). O’Connor teaches and process the one or more flow events generated by the host to generate one or more corresponding scalable network flow events, (i.e., section 0160 O’Connor teaches wherein the one or more corresponding scalable network flow events combine the metadata associated with the workload with the information associated with the workload, (i.e., section 0160 teaches creating control flow event packets and section 0161 teaches CFE packets may fuse with EVD packets which include metadata; scalable network flow events as defined by the specification is an flow event combined with metadata). O’Connor teaches a communication interface coupled to the processor and configured to forward a flow log comprising the one or more corresponding scalable network flow events to a flow log receiver, (i.e., section 0163 teaches updating logs; ).",
"O’Connor teaches aggregate a plurality of scalable network flow events in a flow log, wherein the flow log indicates that the workload is associated with at least a first internet protocol address and a second internet protocol address, (i.e., section 0160 teaches creating control flow event packets and section 0161 teaches CFE packets may fuse with EVD packets which include metadata; scalable network flow events as defined by the specification is an flow event combined with metadata). O’Connor discloses the claimed subject matter as discussed above except Wherein the metadata associated with the workload at least includes a workload identity, wherein the one or more flow events associated with the workload include ephemeral information associated with the workload, wherein the ephemeral information associated with the workload at least includes an internet protocol address associated with the workload; and combine the metadata associated with the workload with the ephemeral information associated with the workload.",
"However, Kulkarni teaches Wherein the metadata associated with the workload at least includes a workload identity, wherein the one or more flow events associated with the workload include ephemeral information associated with the workload, wherein the ephemeral information associated with the workload at least includes an internet protocol address associated with the workload; and combine the metadata associated with the workload with the ephemeral information associated with the workload, (i.e., section 0031 teaches metadata which includes thread or workload name or id and a network address or client address) in order to allow better detection and correction of errors ( section 0012). Therefore, based on O’Connor in view of Kulkarni, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Kulkarni to the system of O’Connor in order to allow better detection and correction of errors.",
"wherein the processor is configured to receive the metadata associated with the workload, wherein the workload is one of a plurality of workloads hosted on the host, (i.e., section 0237 teaches plurality or EVD packets which include metadata related to workloads; section 0121 teaches parallel workloads). With respect to claim 3, O’Connor teaches wherein the flow log receiver is configured to store the one or more corresponding scalable network flow events in a flow log store, (i.e., section 0163 teaches logs; section 0230 teaches storage). With respect to claim 4, O’Connor teaches wherein the metadata associated with the workload includes at least one of a cluster identity associated with the workload, a namespace associated with the workload, the workload identity, one or more labels associated with the workload, or a network policy associated with the workload, (i.e., section 0167 teaches using fields to identify the workload). With respect to claim 5, O’Connor teaches wherein the one or more flow events generated by the host include at least one of an internet protocol address associated with a source workload, a source port associated with the source workload, an internet protocol address associated with a destination workload, a destination port associated with the destination workload, a protocol, information indicating whether the communication was permitted or denied, or information detailing which policies resulted in the communication being permitted or denied, (i.e., section 0175 teaches address; section 0201 teaches includes information about the fault).",
"With respect to claim 15, O’Connor teaches wherein the flow log receiver is configured to receive a plurality of flow logs from a plurality of hosts, wherein the plurality of flow logs includes the flow log and the plurality of hosts includes the host, (i.e., section 0163 teaches logs; section 0230 teaches storage). With respect to claim 19, the limitations of claim 19 are rejected in the analysis of claim 1 above, and the claim is rejected on that basis. With respect to claim 20, the limitations of claim 20 are rejected in the analysis of claim 1 above, and the claim is rejected on that basis. Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al.",
"(US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Wilcox et al. (US 20120089999 A1). With respect to claim 12, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to prevent the workload from communicating with one or more other workloads until the metadata associated with the workload is received. Wilcox teaches wherein the processor is further configured to prevent the workload from communicating with one or more other workloads until the metadata associated with the workload is received, (i.e., section 0018 teaches preventing communications until metadata is analyzed) in order to verify metadata (abstract).",
"Therefore, based on O’Connor in view of Kulkarni and further in view of Wilcox, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Wilcox to the system of O’Connor and Kulkarni in order to verify metadata. Claim 7, 11 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Schuster et al. (US 20150081618 A1).",
"With respect to claim 7, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a hierarchy inferred from the metadata associated with the workload. However, Schuster teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a hierarchy inferred from the metadata associated with the workload, (i.e., section 0051 teaches using hierarchy or ordered or grouped or aligning data based on metadata and a schema and aggregating or combining data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data. With respect to claim 11, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a time interval. However, Schuster teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a time interval, (i.e., section 0026 teaches time data) in order to order data based on the metadata describing the raw data (abstract).",
"Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the With respect to claim 16, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the flow log receiver is configured to aggregate the plurality of flow logs based on at least one of a hierarchy inferred from the metadata associated with the workload, an entropy analysis of the metadata associated with the workload, a replication identity, ephemeral elements of the one or more flow events, or a time interval. However, Schuster teaches wherein the flow log receiver is configured to aggregate the plurality of flow logs based on at least one of a hierarchy inferred from the metadata associated with the workload, an entropy analysis of the metadata associated with the workload, a replication identity, ephemeral elements of the one or more flow events, or a time interval, (i.e., section 0026 teaches time data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data.",
"wherein the flow log receiver is configured to perform periodic aggregation on flow events stored in a flow log store. However, Schuster teaches wherein the flow log receiver is configured to perform periodic aggregation on flow events stored in a flow log store, (i.e., section 0051 teaches using hierarchy or ordered or grouped or aligning data based on metadata and a schema and aggregating or combining data) in order to order data based on the metadata describing the raw data (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Schuster, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Schuster to the system of O’Connor and Kulkarni in order to order data based on the metadata describing the raw data.",
"Claim 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Foremski et al. (US 20170359227 A1). With respect to claim 8, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on an entropy analysis of the metadata associated with the workloads. Foremski teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on an entropy analysis of the metadata associated with the workloads, (i.e., section 0007 teaches entropy analysis of log data) in order to compute entropies on a sample set (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Foremski, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Foremski to the system of O’Connor and Kulkarni in order to compute entropies on a sample set.",
"With respect to claim 10, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on ephemeral elements of the one or more flow events. Foremski teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on ephemeral elements of the one or more flow events, (i.e., section 0030 teaches ephemeral elements) in order to compute entropies on a sample set (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Foremski, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of . Claim 9 is rejected under 35 U.S.C.",
"103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Cruz et al. (US 10038624 B1). With respect to claim 9, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a replication identity. However, Cruz teaches wherein the processor is further configured to aggregate the plurality of corresponding scalable network flow events based on a replication identity, (i.e., col. 8, lines 36-50 teaches aggregate groups based on replication id)in order to replicate and filter multicast packet in a physical network. Therefore, based on O’Connor in view of Kulkarni in view of Cruz, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Cruz to the system of O’Connor and Kulkarni in order to replicate and filter multicast packet in a physical network. Claims 13 and 14 are rejected under 35 U.S.C.",
"103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Enderwick (US 8918860 B1). With respect to claim 13, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the processor is further configured to permit the one or more flow events based on a network policy. However, Enderwick teaches wherein the processor is further configured to permit the one or more flow events based on a network policy, (i.e., col. 2, lines 23-34 teaches using a network policy to permit transmission) in order to establish secure mobile communications (abstract). Therefore, based on O’Connor in view of Kulkarni in view of Enderwick, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Enderwick to the system of O’Connor and Kulkarni in order to establish secure mobile communications.",
"With respect to claim 14, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the network policy indicates one or more other workloads with which the workload is permitted to communicate. However, Enderwick teaches wherein the network policy indicates one or more other workloads with which the workload is permitted to communicate, (i.e., col. 2, lines 23-34 teaches . Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over O’Connor et al. (US 20170090925 A1) in view of Kulkarni (US 20090019312 A1) in view of Barykin et al. (US 20150032707 A1). With respect to claim 18, O’Connor and Kulkarni disclose the claimed subject matter as discussed above except wherein the flow log receiver is configured to remove one or more flow events from a flow log store based on one or more retention policies. However, Barykin teaches wherein the flow log receiver is configured to remove one or more flow events from a flow log store based on one or more retention policies, (i.e., section 0062 teaches removal of log data based on retention policies) in order to allow for management of data(abstract). Therefore, based on O’Connor in view of Kulkarni in view of Barykin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of .",
"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 JOEL MESA whose telephone number is (571)270-7211. The examiner can normally be reached on M-F 9AM-5PM. 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. JOEL MESA Examiner Art Unit 2447 /J.M/Examiner, Art Unit 2447 /George C Neurauter, Jr./Primary Examiner, Art Unit 2447"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 1 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 2 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 3 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 4 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 5 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 6 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 7 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 8 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 9 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document 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"Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 1 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 2 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 3 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 4 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 5 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 6 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 7 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 8 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document Page 9 of 56 Case 6:21-ap-01018-MW Doc 1 Filed 02/05/21 Entered 02/05/21 15:56:18 Desc Main Document 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| https://www.courtlistener.com/api/rest/v3/recap-documents/160065519/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Lloyd, J. The appeal in this case is from the dismissal by the judge of the East Orange District Court of a rule td show cause why the lien of Perry Belfatto, an attorney-at-law, for professional services, costs and disbursements in a cause should not be appropriately enforced. The rule to show cause was based on Belfatto’s petition that the court adjudge and determine how much he was entitled to receive for services rendered and expenses incurred, what lien he was entitled to, and that his lien be appropriately enforced in accordance with the Attorneys’ Lien act. No answer seems to have been filed to the petition, but on the return day of the rule the parties appeared, an insurance company apparently interested in the outcome, appearing specially. At the inception of the hearing counsel representing Mr. Belfatto stated that it was an application for the framing of an issue under the Attorneys’ Lien act, and started to state the facts. Counsel for the defendant objected and stated that the parties were there on the return of the rule to show cause and the facts must be proved, to which the court replied, “all right, you can produce somebody and swear him.” Then follow twenty-eight pages of typewritten testi*218mony in which Belfatto assumed the laboring oar and told the story of how he had been employed, how he was dissatisfied with his client’s conduct, and how he had refused to proceed further with the case. Against this testimony was that of the other parties to the rule indicating that Belfatto had abandoned the ease and refused to proceed further with it. At the conclusion of the hearing both sides rested, Mr. Congleton for the plaintiff saying, “that is our case.” Then followed this colloquy: The court—“Both sides rest.” Mr. Kuvin—“With the exception that I would like to produce that record to attack his credibility.” The court—“No, no.” Mr. Kuvin—“Then I rest.” The court—“Do you want to submit?” Mr. Kuvin —“I am willing to submit.” The court—“Submit in toto f’ Mr. Kuvin—“Submit in toto with the exhibits.” There is no appeal on the ground that the finding of the court on the testimony was erroneous or that the evidence did not fully justify its finding, but that as one of procedure, there should have been a framing of the issue, and that the trial on the merits should take place at a later date, either with or without a jury as the parties might require. It seems to us that the appeal is without merit. The proceeding by petition was in accordance with the ruling of the Court of Errors and Appeals in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585, and it is important to remember the prayers of the petition in the case, which were that the court would determine the amount due petitioner, what lien he was entitled to and that the lien be appropriately enforced. To this petition normally an answer would be filed, but the court proceeded upon the prayer of the petition itself and issued a rule to show cause. Appellant accepted this method of procedure, caused his rule to be served, and on the return day of the rule offered his proofs in extenso in support of his claim, counsel for the plaintiff meeting the issue with proofs to the contrary. We think this was a waiver of an answer as well as the framing of an issue, which in an earlier stage had been requested. Colloquy at the conclusion of the case establishes clearly that the parties were trying the question on its merits and *219not merely offering testimony to settle the question of pleading or practice. After the ease was closed the court said: “Considering the testimony in this case and the exhibits, the court feels that Mr. Belfatto has not sustained his right to an attorney’s lien; that by his own actions he led the parties to believe that he was no longer in the case. Therefore, the rule to show cause will be dismissed.” Mr. Kuvin— “Excepted to ruling in that respect.” There is nothing here to indicate that counsel was dissatisfied with the procedure or that the case was not properly before the court in its entirety, but simply that the court’s ruling on the merits was excepted to, and as already said this point is neither presented in the specifications nor argued in the brief. The order dismissing the rule is affirmed. | 07-25-2022 | [
"Lloyd, J. The appeal in this case is from the dismissal by the judge of the East Orange District Court of a rule td show cause why the lien of Perry Belfatto, an attorney-at-law, for professional services, costs and disbursements in a cause should not be appropriately enforced. The rule to show cause was based on Belfatto’s petition that the court adjudge and determine how much he was entitled to receive for services rendered and expenses incurred, what lien he was entitled to, and that his lien be appropriately enforced in accordance with the Attorneys’ Lien act.",
"No answer seems to have been filed to the petition, but on the return day of the rule the parties appeared, an insurance company apparently interested in the outcome, appearing specially. At the inception of the hearing counsel representing Mr. Belfatto stated that it was an application for the framing of an issue under the Attorneys’ Lien act, and started to state the facts. Counsel for the defendant objected and stated that the parties were there on the return of the rule to show cause and the facts must be proved, to which the court replied, “all right, you can produce somebody and swear him.” Then follow twenty-eight pages of typewritten testi*218mony in which Belfatto assumed the laboring oar and told the story of how he had been employed, how he was dissatisfied with his client’s conduct, and how he had refused to proceed further with the case. Against this testimony was that of the other parties to the rule indicating that Belfatto had abandoned the ease and refused to proceed further with it.",
"At the conclusion of the hearing both sides rested, Mr. Congleton for the plaintiff saying, “that is our case.” Then followed this colloquy: The court—“Both sides rest.” Mr. Kuvin—“With the exception that I would like to produce that record to attack his credibility.” The court—“No, no.” Mr. Kuvin—“Then I rest.” The court—“Do you want to submit?” Mr. Kuvin —“I am willing to submit.” The court—“Submit in toto f’ Mr. Kuvin—“Submit in toto with the exhibits.” There is no appeal on the ground that the finding of the court on the testimony was erroneous or that the evidence did not fully justify its finding, but that as one of procedure, there should have been a framing of the issue, and that the trial on the merits should take place at a later date, either with or without a jury as the parties might require. It seems to us that the appeal is without merit. The proceeding by petition was in accordance with the ruling of the Court of Errors and Appeals in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl.",
"Rep. 585, and it is important to remember the prayers of the petition in the case, which were that the court would determine the amount due petitioner, what lien he was entitled to and that the lien be appropriately enforced. To this petition normally an answer would be filed, but the court proceeded upon the prayer of the petition itself and issued a rule to show cause. Appellant accepted this method of procedure, caused his rule to be served, and on the return day of the rule offered his proofs in extenso in support of his claim, counsel for the plaintiff meeting the issue with proofs to the contrary. We think this was a waiver of an answer as well as the framing of an issue, which in an earlier stage had been requested.",
"Colloquy at the conclusion of the case establishes clearly that the parties were trying the question on its merits and *219not merely offering testimony to settle the question of pleading or practice. After the ease was closed the court said: “Considering the testimony in this case and the exhibits, the court feels that Mr. Belfatto has not sustained his right to an attorney’s lien; that by his own actions he led the parties to believe that he was no longer in the case. Therefore, the rule to show cause will be dismissed.” Mr. Kuvin— “Excepted to ruling in that respect.” There is nothing here to indicate that counsel was dissatisfied with the procedure or that the case was not properly before the court in its entirety, but simply that the court’s ruling on the merits was excepted to, and as already said this point is neither presented in the specifications nor argued in the brief.",
"The order dismissing the rule is affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7299838/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
6 So.3d 798 (2009) SUCCESSION OF Arthur Louis ROBINSON v. Suzanne D. HARLAN and Charles G. Harlan. No. 2009-CC-0515. Supreme Court of Louisiana. April 17, 2009. Denied. KIMBALL, C.J., would grant. | 10-30-2013 | [
"6 So.3d 798 (2009) SUCCESSION OF Arthur Louis ROBINSON v. Suzanne D. HARLAN and Charles G. Harlan. No. 2009-CC-0515. Supreme Court of Louisiana. April 17, 2009. Denied. KIMBALL, C.J., would grant."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1640837/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Van Sant, Commissioner Reversing. On the 20th day of September, 1947, appellant and his brother-in-law, Jessie Carter, having previously formed a partnership, deposited the sum of $558.83 to the credit of the partnership in the Cumberland Bank and Trust Company in Clintwood, Virginia. At the time of the deposit, they issued two checks in the sum of $10.00 each; one payable to appellant, the other to Carter. Both checks were signed by both partners in the firm name “Mullins & Carter”. Each affixed his own name to both of the checks. These checks were cashed by the employee of the bank who accepted the deposit. Thereafter eight other checks in various amounts identically signed were issued by the partners and honored by the bank. The eleventh check, in the amount of $90.00, signed precisely like the ten previous checks, was delivered to Roy Sanders in Pike County, Kentucky in payment of a motor purchased for the use of the partnership in the operation of a coal mine in Virginia. When the $90.00 check was presented to the bank, one of its employees refused to honor it because the firm name was not followed by the words “by Mullins” or “by Carter” which was the signature authorized on the card prepared and kept on file for that purpose at the bank. Neither Mullins nor Carter *526had had any experience with partnerships or joint accounts previous to the transactions herein related, and each was under the impression that both were required to sign the same check before it would be honored. When the $90.00 check was presented for payment, the account had a balance to the credit of the partnership far in excess of the amount of the check. When the check was returned, Sanders caused Mullins to be arrested on a charge of issuing a cold check. The arrest was made on a Sunday and the arresting officer refused to permit Mullins to communicate with the cashier of his bank and clarify the misunderstanding, which could have been done very promptly. After his arrest, the cheek was honored and Sanders received the money; despite this fact, the charge was prosecuted resulting in conviction and a sentence of confinement in the state reformatory for a period of one year. KRS 434.070 under which the indictment was drawn describes the offense, insofar as pertinent to this transaction, as the uttering of a check upon a bank with knowledge of the maker of the check that he has not sufficient funds in or credit with the bank for the payment of the check upon its presentation. The Commonwealth does not even contend that appellant did not have sufficient funds to his credit in the bank to pay the check, and the evidence shows beyond peradventure of a doubt that appellant and his partner affixed their signatures to the checks in the manner they were accustomed but not in the precise manner contained on the signature card at the bank. But the bank had honored ten checks drawn in exactly the same manner and in the same handwriting previous to the presentation of the check in question, and since both Mullins and Carter affixed their signatures to the check, they would have been estopped to deny the authority of the bank to pay the check upon presentation. The circumstances proven in this case do. not even resemble a crime, which fact the Attorney General frankly concedes. The judgment is reversed for proceedings consistent with this opinion. | 07-24-2022 | [
"Van Sant, Commissioner Reversing. On the 20th day of September, 1947, appellant and his brother-in-law, Jessie Carter, having previously formed a partnership, deposited the sum of $558.83 to the credit of the partnership in the Cumberland Bank and Trust Company in Clintwood, Virginia. At the time of the deposit, they issued two checks in the sum of $10.00 each; one payable to appellant, the other to Carter. Both checks were signed by both partners in the firm name “Mullins & Carter”. Each affixed his own name to both of the checks. These checks were cashed by the employee of the bank who accepted the deposit. Thereafter eight other checks in various amounts identically signed were issued by the partners and honored by the bank. The eleventh check, in the amount of $90.00, signed precisely like the ten previous checks, was delivered to Roy Sanders in Pike County, Kentucky in payment of a motor purchased for the use of the partnership in the operation of a coal mine in Virginia.",
"When the $90.00 check was presented to the bank, one of its employees refused to honor it because the firm name was not followed by the words “by Mullins” or “by Carter” which was the signature authorized on the card prepared and kept on file for that purpose at the bank. Neither Mullins nor Carter *526had had any experience with partnerships or joint accounts previous to the transactions herein related, and each was under the impression that both were required to sign the same check before it would be honored. When the $90.00 check was presented for payment, the account had a balance to the credit of the partnership far in excess of the amount of the check. When the check was returned, Sanders caused Mullins to be arrested on a charge of issuing a cold check.",
"The arrest was made on a Sunday and the arresting officer refused to permit Mullins to communicate with the cashier of his bank and clarify the misunderstanding, which could have been done very promptly. After his arrest, the cheek was honored and Sanders received the money; despite this fact, the charge was prosecuted resulting in conviction and a sentence of confinement in the state reformatory for a period of one year. KRS 434.070 under which the indictment was drawn describes the offense, insofar as pertinent to this transaction, as the uttering of a check upon a bank with knowledge of the maker of the check that he has not sufficient funds in or credit with the bank for the payment of the check upon its presentation.",
"The Commonwealth does not even contend that appellant did not have sufficient funds to his credit in the bank to pay the check, and the evidence shows beyond peradventure of a doubt that appellant and his partner affixed their signatures to the checks in the manner they were accustomed but not in the precise manner contained on the signature card at the bank. But the bank had honored ten checks drawn in exactly the same manner and in the same handwriting previous to the presentation of the check in question, and since both Mullins and Carter affixed their signatures to the check, they would have been estopped to deny the authority of the bank to pay the check upon presentation. The circumstances proven in this case do. not even resemble a crime, which fact the Attorney General frankly concedes.",
"The judgment is reversed for proceedings consistent with this opinion."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7150689/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
692 F. Supp. 2d 602 (2010) In re SUBPOENAS. Misc. Action No. 1:10mc00001. United States District Court, W.D. Virginia, Abingdon Division. March 10, 2010. Steven Randall Ramseyer, United States Attorneys Office, Abingdon, VA, for Plaintiff. Edward Scott Austin, Guy M. Harbert, III, Joshua Charles Johnson, Gentry Locke Rakes & Moore, Roanoke, VA, James L. Brochin, Roberto Finzi, Theodore *603 V. Wells, Paul Weiss Rifkin Wharton & Garrison, LLP, New York, NY, for Defendant.
MEMORANDUM OPINION SAMUEL G. WILSON, District Judge. This is a motion by the United States to compel compliance with two subpoenas issued to Abbott Laboratories ("Abbott") pursuant to 18 U.S.C. § 3486, which authorizes the Attorney General or his designee to issue subpoenas "in any investigation relating to any act or activity involving a federal health care offense." Abbott refused to comply on the ground that the subpoenas are unreasonable and unduly burdensome. The United States has agreed to limit the scope of the subpoenas. The court has concluded that, as limited, the subpoenas are sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. Accordingly, the court enforces them as limited.
I. Abbott is a publicly traded manufacturer of pharmaceuticals, medical devices, and nutritional products. It operates in over 100 countries, has nearly 72,000 employees, and annual sales of nearly $30 billion. In 1982, the Food and Drug Administration ("FDA") approved Abbott's new drug Depakote for the treatment of bipolar disorder, epileptic seizures, and migraines. The United States is investigating Abbott for a number of potential federal violations arising out of Abbott's impermissible off-label marketing of Depakote as a treatment for agitation and aggression in the elderly, and health care fraud arising out of that allegedly improper use. Earlier, the government issued a number of subpoenas, and the parties were able to resolve their differences without the court's intervention. Abbott has since refused to comply with two subpoenas it claims are unduly burdensome. Those subpoenas seek all e-mails sent or received by thirteen individuals from 1996 through 2008. The government has offered to limit those subpoenas to the e-mails of only three people (William Dempsey, Miles White, and Jeffrey Leiden) relating to Depakote and off-label marketing of other FDA approved drugs. Abbot can satisfy the subpoena by producing (1) the "live e-mails" sent or received by each of the three individuals relating to Depakote and off-label marketing of other FDA approved drugs and, (2) the e-mails of each of those individuals relating to Depakote and off-label marketing of other FDA approved drugs retrieved from a single snapshot from "backup tapes" for each of the years 2002 through 2008. According to Abbott, this will require Abbott to restore 53 (out of 32,300) backup tapes[1] that were preserved for other litigation. Abbott estimates that it will cost "roughly $750" for each backup tape, "approximately $10,000 to establish the back-up environment, ... any engineering required to access the data or troubleshoot" at the rate of $240 per hour, and "anywhere from $350-$650" for each gigabyte of restored data to place it in reviewable format (with each tape containing "5-10 gigabytes of data potentially responsive to the subpoenas for e-mails").
II. Abbott maintains that it is prohibitively expensive to restore the yearly, snapshot e-mails of the three individuals, despite the fact that the requested records were necessarily retained for other litigation. This requires the court to determine whether *604 the subpoenas are "sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome." See v. City of Seattle, 387 U.S. 541, 544, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). The court concludes that the subpoenas, as limited by the government, are not unreasonably burdensome, and the court will enforce them. The Fourth Amendment imposes a reasonableness standard on subpoenas. See In Re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir.2000). To satisfy the reasonableness standard, a subpoena must be issued for a legitimate and authorized governmental purpose, and it must be relevant to the inquiry. Id. at 349. The "legitimate and authorized governmental purpose prohibits the government from `engaging in arbitrary fishing expeditions' and from `selecting targets of investigation out of malice or an intent to harass.'" Id. (citing United States v. R. Enters., Inc., 498 U.S. 292, 299, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991)). The court will not enforce a subpoena that is "far too sweeping" or not "suitably specific and properly limited in scope," if the person served has sought but has not received a reasonable accommodation from the government narrowing the scope of that subpoena. Id. (internal citations omitted). In summary, to be reasonable under the Fourth Amendment, an investigative subpoena must be: (1) authorized for a legitimate governmental purpose; (2) limited in scope to reasonably relate to and further its purpose; (3) sufficiently specific so that a lack of specificity does not render compliance unreasonably burdensome; and (4) not overly broad for the purpose of the inquiry as to be oppressive.... Id. at 349. However, the recipient of an investigative subpoena has the burden of proving that the subpoena, as limited, is unreasonable. See Oklahoma Press Publ'g Co. v. Walling, 327 U.S. 186, 218, 66 S. Ct. 494, 90 L. Ed. 614 (1946). Abbott has failed to meet that burden. Here, Abbott does not contest that the subpoenas were authorized for a legitimate governmental purpose, but it does contest the relevance of e-mails relating to off-label marketing of all FDA approved drugs (other than Depakote), and it contends that it would be unreasonably burdensome for it to comply. The court rejects those challenges. First, as to relevance, Abbott itself recognizes that the off-label marketing of Depakote is highly relevant to the government's investigation. The same also appears to be true as to the off-label marketing of other drugs. The government has indicated that it has evidence that the off-label marketing of other FDA approved drugs may have followed a similar pattern to the off-label marketing of Depakote.[2] If this is so, the off-label marketing of these other drugs may raise the same related health care fraud issues that the marketing of Depakote raises.[3] *605 Second, the court does not credit Abbott's argument that the two subpoenas are unduly burdensome. Essentially, Abbott (a company with nearly $30 billion in annual sales) argues that it is unduly burdensome to produce snapshot e-mails for a limited period of time for three specifically identified individuals out of a work force of approximately 72,000, even though Abbott has been required to maintain those e-mails for other litigation. Although it is understandable that prudence and the wish to avoid the appearance of obstructive conduct may result in excessive document retention and that some retained documents may, by nature, be difficult to retrieve, it is difficult to see why that should be true for the e-mails here. As the court views it, if retrieving the e-mails the government requests is as difficult as Abbott conveys, then the fault lies not so much with an overly broad governmental request as it does with Abbott's policy or practice of retaining documents (documents Abbott has been required to retain for litigation purposes) in a format that shrouds them in practical obscurity. Accordingly, the court concludes that the subpoenas as limited by the government, are not unduly burdensome and that Abbott must comply.
III. For the reasons stated, the court will order Abbott to produce live e-mails and snapshot e-mails retrieved from the backup tapes (related to Depakote and the off-label marketing of other FDA approved drugs)[4] for the following persons: William Dempsey, Miles White, and Jeffrey Leiden.[5]
ORDER In accordance with the accompanying memorandum opinion entered on this date, it is hereby ORDERED and ADJUDGED that the United States' motion to compel compliance with subpoenas 2007R01 115-0029 and 2007R01 115-0030 is GRANTED subject to the limiting conditions set forth below. Abbott Laboratories shall, within Twenty-one (21) days of the date of this order: Provide, in native form, all e-mails relating to Depakote and the off-label marketing of other FDA approved drugs, sent to or from William Dempsey and Miles White. The e-mails shall include all live e-mails to or from the named individuals relating to Depakote and the off-label marketing of other FDA approved drugs, as well as all e-mails to or from the named individuals relating to Depakote and the off-label marketing of other FDA approved drugs restored from the March mid-month backup tapes in each of the years 2002 through 2008.[6] NOTES [1] The court notes that Abbott has submitted an affidavit which confirms that the tapes in question are all located in the same facility near the corporate headquarters, and all have been identified successfully. (See Abbott Declaration 2-4.) [2] The government proffered that an Abbott employee who "had been with Abbott for years" had stated that she only "knew of one drug during that entire time period that she marketed exclusively on-label or within the law." (Hearing, 2/12/10 at 13.) [3] Nothing in this court's opinion is intended to imply anything concerning the actual merits of the government's investigation or to imply that off-label marketing necessarily equates to health care fraud. Rather, the court has simply concluded that because "the DOJ's subpoena power in investigating federal health care offenses is meant to be broad," Doe v. United States, 253 F.3d 256, 267 (6th Cir.2001), and the subpoenaed documents here are "reasonably relevant" to an authorized investigation, see United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401 (1950), and compliance is not unduly burdensome, Abbott must comply. [4] Abbott seems to claim that it is unduly burdensome to formulate search terms relating to the off-label marketing of other FDA approved drugs. The alternative is for Abbott to comply with the subpoenas by supplying all the e-mail's for each of the three persons for the ordered time period. [5] The court notes that one of these three individuals, Jeffrey Leiden, is not identified in either of the challenged subpoenas, so the court's enforcement order includes only the other two. If Abbott does not consent to the inclusion of the third, the government may issue a subpoena in conformity with this opinion, and the court will enforce it without further argument. [6] As noted in the accompanying memorandum opinion, the government also seeks the e-mails sent to or from Jeffrey Leiden for the same time period. If Abbott does not consent to this additional request, the government may issue a new subpoena, and the court will enforce it in conformity with the court's memorandum opinion. | 10-30-2013 | [
"692 F. Supp. 2d 602 (2010) In re SUBPOENAS. Misc. Action No. 1:10mc00001. United States District Court, W.D. Virginia, Abingdon Division. March 10, 2010. Steven Randall Ramseyer, United States Attorneys Office, Abingdon, VA, for Plaintiff. Edward Scott Austin, Guy M. Harbert, III, Joshua Charles Johnson, Gentry Locke Rakes & Moore, Roanoke, VA, James L. Brochin, Roberto Finzi, Theodore *603 V. Wells, Paul Weiss Rifkin Wharton & Garrison, LLP, New York, NY, for Defendant. MEMORANDUM OPINION SAMUEL G. WILSON, District Judge.",
"This is a motion by the United States to compel compliance with two subpoenas issued to Abbott Laboratories (\"Abbott\") pursuant to 18 U.S.C. § 3486, which authorizes the Attorney General or his designee to issue subpoenas \"in any investigation relating to any act or activity involving a federal health care offense.\" Abbott refused to comply on the ground that the subpoenas are unreasonable and unduly burdensome. The United States has agreed to limit the scope of the subpoenas. The court has concluded that, as limited, the subpoenas are sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. Accordingly, the court enforces them as limited. I. Abbott is a publicly traded manufacturer of pharmaceuticals, medical devices, and nutritional products. It operates in over 100 countries, has nearly 72,000 employees, and annual sales of nearly $30 billion. In 1982, the Food and Drug Administration (\"FDA\") approved Abbott's new drug Depakote for the treatment of bipolar disorder, epileptic seizures, and migraines. The United States is investigating Abbott for a number of potential federal violations arising out of Abbott's impermissible off-label marketing of Depakote as a treatment for agitation and aggression in the elderly, and health care fraud arising out of that allegedly improper use.",
"Earlier, the government issued a number of subpoenas, and the parties were able to resolve their differences without the court's intervention. Abbott has since refused to comply with two subpoenas it claims are unduly burdensome. Those subpoenas seek all e-mails sent or received by thirteen individuals from 1996 through 2008. The government has offered to limit those subpoenas to the e-mails of only three people (William Dempsey, Miles White, and Jeffrey Leiden) relating to Depakote and off-label marketing of other FDA approved drugs. Abbot can satisfy the subpoena by producing (1) the \"live e-mails\" sent or received by each of the three individuals relating to Depakote and off-label marketing of other FDA approved drugs and, (2) the e-mails of each of those individuals relating to Depakote and off-label marketing of other FDA approved drugs retrieved from a single snapshot from \"backup tapes\" for each of the years 2002 through 2008.",
"According to Abbott, this will require Abbott to restore 53 (out of 32,300) backup tapes[1] that were preserved for other litigation. Abbott estimates that it will cost \"roughly $750\" for each backup tape, \"approximately $10,000 to establish the back-up environment, ... any engineering required to access the data or troubleshoot\" at the rate of $240 per hour, and \"anywhere from $350-$650\" for each gigabyte of restored data to place it in reviewable format (with each tape containing \"5-10 gigabytes of data potentially responsive to the subpoenas for e-mails\"). II. Abbott maintains that it is prohibitively expensive to restore the yearly, snapshot e-mails of the three individuals, despite the fact that the requested records were necessarily retained for other litigation. This requires the court to determine whether *604 the subpoenas are \"sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.\"",
"See v. City of Seattle, 387 U.S. 541, 544, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). The court concludes that the subpoenas, as limited by the government, are not unreasonably burdensome, and the court will enforce them. The Fourth Amendment imposes a reasonableness standard on subpoenas. See In Re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir.2000). To satisfy the reasonableness standard, a subpoena must be issued for a legitimate and authorized governmental purpose, and it must be relevant to the inquiry. Id. at 349. The \"legitimate and authorized governmental purpose prohibits the government from `engaging in arbitrary fishing expeditions' and from `selecting targets of investigation out of malice or an intent to harass.'\" Id. (citing United States v. R. Enters., Inc., 498 U.S. 292, 299, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991)). The court will not enforce a subpoena that is \"far too sweeping\" or not \"suitably specific and properly limited in scope,\" if the person served has sought but has not received a reasonable accommodation from the government narrowing the scope of that subpoena.",
"Id. (internal citations omitted). In summary, to be reasonable under the Fourth Amendment, an investigative subpoena must be: (1) authorized for a legitimate governmental purpose; (2) limited in scope to reasonably relate to and further its purpose; (3) sufficiently specific so that a lack of specificity does not render compliance unreasonably burdensome; and (4) not overly broad for the purpose of the inquiry as to be oppressive.... Id. at 349. However, the recipient of an investigative subpoena has the burden of proving that the subpoena, as limited, is unreasonable. See Oklahoma Press Publ'g Co. v. Walling, 327 U.S. 186, 218, 66 S. Ct. 494, 90 L. Ed. 614 (1946). Abbott has failed to meet that burden.",
"Here, Abbott does not contest that the subpoenas were authorized for a legitimate governmental purpose, but it does contest the relevance of e-mails relating to off-label marketing of all FDA approved drugs (other than Depakote), and it contends that it would be unreasonably burdensome for it to comply. The court rejects those challenges. First, as to relevance, Abbott itself recognizes that the off-label marketing of Depakote is highly relevant to the government's investigation. The same also appears to be true as to the off-label marketing of other drugs. The government has indicated that it has evidence that the off-label marketing of other FDA approved drugs may have followed a similar pattern to the off-label marketing of Depakote. [2] If this is so, the off-label marketing of these other drugs may raise the same related health care fraud issues that the marketing of Depakote raises. [3] *605 Second, the court does not credit Abbott's argument that the two subpoenas are unduly burdensome.",
"Essentially, Abbott (a company with nearly $30 billion in annual sales) argues that it is unduly burdensome to produce snapshot e-mails for a limited period of time for three specifically identified individuals out of a work force of approximately 72,000, even though Abbott has been required to maintain those e-mails for other litigation. Although it is understandable that prudence and the wish to avoid the appearance of obstructive conduct may result in excessive document retention and that some retained documents may, by nature, be difficult to retrieve, it is difficult to see why that should be true for the e-mails here. As the court views it, if retrieving the e-mails the government requests is as difficult as Abbott conveys, then the fault lies not so much with an overly broad governmental request as it does with Abbott's policy or practice of retaining documents (documents Abbott has been required to retain for litigation purposes) in a format that shrouds them in practical obscurity. Accordingly, the court concludes that the subpoenas as limited by the government, are not unduly burdensome and that Abbott must comply. III. For the reasons stated, the court will order Abbott to produce live e-mails and snapshot e-mails retrieved from the backup tapes (related to Depakote and the off-label marketing of other FDA approved drugs)[4] for the following persons: William Dempsey, Miles White, and Jeffrey Leiden.",
"[5] ORDER In accordance with the accompanying memorandum opinion entered on this date, it is hereby ORDERED and ADJUDGED that the United States' motion to compel compliance with subpoenas 2007R01 115-0029 and 2007R01 115-0030 is GRANTED subject to the limiting conditions set forth below. Abbott Laboratories shall, within Twenty-one (21) days of the date of this order: Provide, in native form, all e-mails relating to Depakote and the off-label marketing of other FDA approved drugs, sent to or from William Dempsey and Miles White. The e-mails shall include all live e-mails to or from the named individuals relating to Depakote and the off-label marketing of other FDA approved drugs, as well as all e-mails to or from the named individuals relating to Depakote and the off-label marketing of other FDA approved drugs restored from the March mid-month backup tapes in each of the years 2002 through 2008.",
"[6] NOTES [1] The court notes that Abbott has submitted an affidavit which confirms that the tapes in question are all located in the same facility near the corporate headquarters, and all have been identified successfully. (See Abbott Declaration 2-4.) [2] The government proffered that an Abbott employee who \"had been with Abbott for years\" had stated that she only \"knew of one drug during that entire time period that she marketed exclusively on-label or within the law.\" (Hearing, 2/12/10 at 13.) [3] Nothing in this court's opinion is intended to imply anything concerning the actual merits of the government's investigation or to imply that off-label marketing necessarily equates to health care fraud. Rather, the court has simply concluded that because \"the DOJ's subpoena power in investigating federal health care offenses is meant to be broad,\" Doe v. United States, 253 F.3d 256, 267 (6th Cir.2001), and the subpoenaed documents here are \"reasonably relevant\" to an authorized investigation, see United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed.",
"401 (1950), and compliance is not unduly burdensome, Abbott must comply. [4] Abbott seems to claim that it is unduly burdensome to formulate search terms relating to the off-label marketing of other FDA approved drugs. The alternative is for Abbott to comply with the subpoenas by supplying all the e-mail's for each of the three persons for the ordered time period. [5] The court notes that one of these three individuals, Jeffrey Leiden, is not identified in either of the challenged subpoenas, so the court's enforcement order includes only the other two. If Abbott does not consent to the inclusion of the third, the government may issue a subpoena in conformity with this opinion, and the court will enforce it without further argument. [6] As noted in the accompanying memorandum opinion, the government also seeks the e-mails sent to or from Jeffrey Leiden for the same time period. If Abbott does not consent to this additional request, the government may issue a new subpoena, and the court will enforce it in conformity with the court's memorandum opinion."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2400993/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION — AG — THE FIRST DEPUTY OR CHIEF DEPUTY OF THE COUNTY SUPERINTENDENT OF SCHOOLS IS NOT REQUIRED TO HAVE A BACHELOR'S DEGREE OR AN ADMINISTRATOR'S CERTIFICATE, OR TO POSSESS OTHER QUALIFICATION REQUIRED BY LAW OF THE COUNTY SUPERINTENDENT OF SCHOOLS. (EDUCATION) CITE: 70 O.S.H. 3-1, 70 O.S.H. 3-5, OPINION NO. JULY 23, 1953 — REYNOLDS (J. H. JOHNSON) | 07-06-2016 | [
"OPINION — AG — THE FIRST DEPUTY OR CHIEF DEPUTY OF THE COUNTY SUPERINTENDENT OF SCHOOLS IS NOT REQUIRED TO HAVE A BACHELOR'S DEGREE OR AN ADMINISTRATOR'S CERTIFICATE, OR TO POSSESS OTHER QUALIFICATION REQUIRED BY LAW OF THE COUNTY SUPERINTENDENT OF SCHOOLS. (EDUCATION) CITE: 70 O.S.H. 3-1, 70 O.S.H. 3-5, OPINION NO. JULY 23, 1953 — REYNOLDS (J. H. JOHNSON)"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3788860/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Transfer denied. All Justices concur, | 07-24-2022 | [
"Transfer denied. All Justices concur,"
]
| https://www.courtlistener.com/api/rest/v3/opinions/7078921/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
610 F.3d 747 (2010) JUDICIAL WATCH, INC., Appellee v. BUREAU OF LAND MANAGEMENT, Appellant. No. 08-5379. United States Court of Appeals, District of Columbia Circuit. Argued April 19, 2010. Decided July 6, 2010. *748 Michael E. Robinson, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance. Michael Bekesha argued the cause for appellee. With him on the brief were Paul J. Orfanedes and James F. Peterson. Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges. Opinion for the Court filed by Circuit Judge GRIFFITH. GRIFFITH, Circuit Judge. The Bureau of Land Management appeals an award of attorneys' fees to Judicial Watch, Inc. in an action brought under the Freedom of Information Act. For the reasons set forth below, we reverse the decision of the district court and vacate the fee award.
I. In March 2007, Judicial Watch requested records of communications between the Bureau and the Nevada congressional delegation about a transaction involving federal lands. When the Bureau failed to produce the documents, Judicial Watch sought to compel their disclosure in a FOIA suit filed in the district court in September 2007. The Bureau voluntarily turned over thirty-five pages of responsive documents later that month. At Judicial Watch's request, the Bureau also conducted a supplemental search for additional relevant documents. When that search proved fruitless, Judicial Watch elected not to proceed with its lawsuit. In January 2008, the parties filed a joint stipulation asking the district court to enter a judgment *749 in favor of the agency. In the stipulation, Judicial Watch reserved the right to request attorneys' fees. On December 31, 2007, after the Bureau's disclosure of the requested records but before the filing of the stipulation, the President signed into law the OPEN Government Act of 2007. See Pub.L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. Before the 2007 Act took effect, only FOIA plaintiffs who had "`been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree," could recover attorneys' fees. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457 (D.C.Cir.2002); see Davis v. DOJ, No. 09-5189, 610 F.3d 750, 2010 WL 2651297 (D.C.Cir. July 6, 2010). The 2007 Act made fee awards permissible not only when the litigation results in "a judicial order, or an enforceable written agreement or consent decree," 5 U.S.C. § 552(a)(4)(E)(ii)(I) (Supp. III 2009), but also when the lawsuit brings about "a voluntary or unilateral change in position by the agency," so long as the FOIA claim is "not insubstantial," id. § 552(a)(4)(E)(ii)(II). After the district court entered judgment for the Bureau, Judicial Watch moved for attorneys' fees. Because Judicial Watch was not eligible for a fee award under the old standard, its motion for attorneys' fees was based on the 2007 Act. The Bureau opposed the motion, arguing that the Act could not be applied retroactively to increase the government's liability for conduct that took place before it became law. The district court disagreed and awarded Judicial Watch $3,605.57. Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F.Supp.2d 159, 166-72, 176 (D.D.C.2008). While the Bureau's appeal was pending, we held in Summers v. Department of Justice that the 2007 Act cannot be applied retroactively. 569 F.3d 500, 503 (D.C.Cir.2009). The Bureau moved for summary reversal of the district court's decision in light of Summers. We denied the motion in order to consider more fully Judicial Watch's argument that applying the new statute to its fee request raised no retroactivity concerns because the parties settled their dispute after the new law took effect. We have jurisdiction to review the award under 28 U.S.C. § 1291. See Cotton v. Heyman, 63 F.3d 1115, 1117-19 (D.C.Cir.1995). Because the temporal scope of a statute is a question of law, our review is de novo. Trout v. Sec'y of Navy, 317 F.3d 286, 289 (D.C.Cir.2003).
II. At least four events must occur before the government is liable for attorneys' fees under 5 U.S.C. § 552(a)(4)(E)(ii)(II): (1) the plaintiff files a FOIA request with the agency; (2) the agency fails to disclose requested records; (3) the plaintiff sues; and (4) the agency voluntarily or unilaterally changes its position. In this case, as in Summers, all four events took place before the 2007 Act became law. But unlike in Summers, where the parties settled in 2005, the parties here did not settle their litigation until after the change in the law. Judicial Watch argues that the Summers court, by expressly holding that the 2007 Act cannot be applied to cases settled before its effective date, 569 F.3d at 503-04, implicitly held that it can be applied to any case settled after that date. The matter is not so simple. Summers held that the 2007 Act may not be given retroactive effect, but it did not address the question presented here: whether the Act applies when the agency *750 unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards. We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects. A statute has retroactive effects if it "attaches new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Applying the 2007 Act to this case would attach a new legal consequence (liability for attorneys' fees) to an event completed before its enactment (the Bureau's disclosure in September 2007). Judicial Watch implicitly concedes as much when it argues that it became eligible for an award of attorneys' fees under the new law when the Bureau disclosed the requested records. See Appellee's Br. at 18 ("It was only after Judicial Watch filed the Complaint that BLM released the responsive documents.... [T]his constitutes a voluntary change in position by BLM.... Judicial Watch ... is, therefore, eligible for an award of attorneys' fees."). That assertion undermines Judicial Watch's argument that application of the 2007 Act would not be retroactive because the litigation continued until after the Act became law. The disclosure was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment. That the parties subsequently settled is without relevance to the Bureau's possible liability for attorneys' fees. And because the fact of the settlement is irrelevant, the timing of the settlement has no bearing upon the question of retroactivity. If the 2007 Act were applied to these facts, it would attach new legal consequences to the Bureau's disclosure of the records. Because the disclosure came before the 2007 Act took effect, application of the new law here would be retroactive. Application of the new statute to this case raises the same retroactivity concerns identified in Summers. Because Congress did not make the statute retroactive, see Summers, 569 F.3d at 504, it is of no help to Judicial Watch.
III. The decision of the district court is reversed and the award of attorneys' fees vacated. So ordered. | 07-06-2010 | [
"610 F.3d 747 (2010) JUDICIAL WATCH, INC., Appellee v. BUREAU OF LAND MANAGEMENT, Appellant. No. 08-5379. United States Court of Appeals, District of Columbia Circuit. Argued April 19, 2010. Decided July 6, 2010. *748 Michael E. Robinson, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance. Michael Bekesha argued the cause for appellee. With him on the brief were Paul J. Orfanedes and James F. Peterson. Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.",
"Opinion for the Court filed by Circuit Judge GRIFFITH. GRIFFITH, Circuit Judge. The Bureau of Land Management appeals an award of attorneys' fees to Judicial Watch, Inc. in an action brought under the Freedom of Information Act. For the reasons set forth below, we reverse the decision of the district court and vacate the fee award. I. In March 2007, Judicial Watch requested records of communications between the Bureau and the Nevada congressional delegation about a transaction involving federal lands. When the Bureau failed to produce the documents, Judicial Watch sought to compel their disclosure in a FOIA suit filed in the district court in September 2007. The Bureau voluntarily turned over thirty-five pages of responsive documents later that month. At Judicial Watch's request, the Bureau also conducted a supplemental search for additional relevant documents. When that search proved fruitless, Judicial Watch elected not to proceed with its lawsuit. In January 2008, the parties filed a joint stipulation asking the district court to enter a judgment *749 in favor of the agency. In the stipulation, Judicial Watch reserved the right to request attorneys' fees.",
"On December 31, 2007, after the Bureau's disclosure of the requested records but before the filing of the stipulation, the President signed into law the OPEN Government Act of 2007. See Pub.L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. Before the 2007 Act took effect, only FOIA plaintiffs who had \"`been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree,\" could recover attorneys' fees. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457 (D.C.Cir.2002); see Davis v. DOJ, No. 09-5189, 610 F.3d 750, 2010 WL 2651297 (D.C.Cir. July 6, 2010).",
"The 2007 Act made fee awards permissible not only when the litigation results in \"a judicial order, or an enforceable written agreement or consent decree,\" 5 U.S.C. § 552(a)(4)(E)(ii)(I) (Supp. III 2009), but also when the lawsuit brings about \"a voluntary or unilateral change in position by the agency,\" so long as the FOIA claim is \"not insubstantial,\" id. § 552(a)(4)(E)(ii)(II). After the district court entered judgment for the Bureau, Judicial Watch moved for attorneys' fees. Because Judicial Watch was not eligible for a fee award under the old standard, its motion for attorneys' fees was based on the 2007 Act. The Bureau opposed the motion, arguing that the Act could not be applied retroactively to increase the government's liability for conduct that took place before it became law. The district court disagreed and awarded Judicial Watch $3,605.57.",
"Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F.Supp.2d 159, 166-72, 176 (D.D.C.2008). While the Bureau's appeal was pending, we held in Summers v. Department of Justice that the 2007 Act cannot be applied retroactively. 569 F.3d 500, 503 (D.C.Cir.2009). The Bureau moved for summary reversal of the district court's decision in light of Summers. We denied the motion in order to consider more fully Judicial Watch's argument that applying the new statute to its fee request raised no retroactivity concerns because the parties settled their dispute after the new law took effect. We have jurisdiction to review the award under 28 U.S.C. § 1291. See Cotton v. Heyman, 63 F.3d 1115, 1117-19 (D.C.Cir.1995).",
"Because the temporal scope of a statute is a question of law, our review is de novo. Trout v. Sec'y of Navy, 317 F.3d 286, 289 (D.C.Cir.2003). II. At least four events must occur before the government is liable for attorneys' fees under 5 U.S.C. § 552(a)(4)(E)(ii)(II): (1) the plaintiff files a FOIA request with the agency; (2) the agency fails to disclose requested records; (3) the plaintiff sues; and (4) the agency voluntarily or unilaterally changes its position. In this case, as in Summers, all four events took place before the 2007 Act became law. But unlike in Summers, where the parties settled in 2005, the parties here did not settle their litigation until after the change in the law. Judicial Watch argues that the Summers court, by expressly holding that the 2007 Act cannot be applied to cases settled before its effective date, 569 F.3d at 503-04, implicitly held that it can be applied to any case settled after that date. The matter is not so simple. Summers held that the 2007 Act may not be given retroactive effect, but it did not address the question presented here: whether the Act applies when the agency *750 unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards. We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects.",
"A statute has retroactive effects if it \"attaches new legal consequences to events completed before its enactment.\" Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Applying the 2007 Act to this case would attach a new legal consequence (liability for attorneys' fees) to an event completed before its enactment (the Bureau's disclosure in September 2007). Judicial Watch implicitly concedes as much when it argues that it became eligible for an award of attorneys' fees under the new law when the Bureau disclosed the requested records. See Appellee's Br. at 18 (\"It was only after Judicial Watch filed the Complaint that BLM released the responsive documents.... [T]his constitutes a voluntary change in position by BLM.... Judicial Watch ... is, therefore, eligible for an award of attorneys' fees.\").",
"That assertion undermines Judicial Watch's argument that application of the 2007 Act would not be retroactive because the litigation continued until after the Act became law. The disclosure was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment. That the parties subsequently settled is without relevance to the Bureau's possible liability for attorneys' fees. And because the fact of the settlement is irrelevant, the timing of the settlement has no bearing upon the question of retroactivity. If the 2007 Act were applied to these facts, it would attach new legal consequences to the Bureau's disclosure of the records.",
"Because the disclosure came before the 2007 Act took effect, application of the new law here would be retroactive. Application of the new statute to this case raises the same retroactivity concerns identified in Summers. Because Congress did not make the statute retroactive, see Summers, 569 F.3d at 504, it is of no help to Judicial Watch. III. The decision of the district court is reversed and the award of attorneys' fees vacated. So ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/150085/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
COOK, Judge (concurring in part and dissenting in part): I agree with the disposition of the instructional issue in Part I of Chief Judge Everett’s opinion, but I am impelled by the law and the record before us to dissent from the remainder of the opinion because the issue is not substitution of counsel but the delegation of responsibility to another lawyer. *226Elsewhere, I set out my reservations as to imposition upon civilian counsel of the duty to represent an accused during review of the record of his conviction, absent evidence that counsel is obligated to do so under his retainer with the accused.1 However, the Court has consistently assumed,2 in the absence of evidence to the contrary, that a civilian lawyer representing an accused at trial remains his counsel after trial, for the purpose of receiving service of, and responding to, the staff judge advocate’s post-trial review, as provided by the Goode rule.3 Here, in his affidavit, civilian counsel does not expressly admit his awareness of his responsibility in respect to the post-trial review. However, he declares, unequivocally, that he does “not doubt the truthfulness of SFC McNair’s statement.” McNair’s memorandum for the record demonstrates that Attorney Sepe, civilian counsel, knew that, as trial defense counsel, he had to receive, and respond to, the staff judge advocate’s review. The memorandum, which Sergeant McNair later stated, “with full certainty,” set forth “exactly what took place,” attests that when Captain Braun, the detailed defense counsel, was served with the staff judge advocate’s review, he indicated he had not participated in the trial. As a result, arrangements were made to serve Attorney Sepe, but these failed. Several attempts to reach Mr. Sepe by telephone also failed. However, on June 18 Mr. Sepe telephoned McNair. He instructed McNair to give the record of trial to Captain Braun for the “post-trial work.” In his own affidavit, Attorney Sepe does not deny that the conversation with Sergeant McNair took place. He says only: “I do not recall delegating to CPT Braun the task of studying the Post-Trial Review by the SJA or the Record of Trial.” The Court of Military Review evaluated the affidavits, and the other documentary matters submitted to it, and concluded they demonstrated that Attorney Sepe “advised .. . [the Government, in the person of Sergeant McNair who was the noncommissioned officer in charge of the staff judge advocate’s office] to make service on the detailed counsel” for accomplishment of the Goode review. In my opinion, the evidence compellingly supports the findings of fact by the Court of Military Review, and, therefore, the findings are binding upon this Court. United States v. Little, 1 M.J. 476 (C.M.A. 1976). Having concluded that Attorney Sepe had requested Captain Braun to do the necessary “post-trial work,” the Court of Military Review observed that “[i]t is not uncommon for attorneys to share or delegate responsibilities in a given case.” Indeed, the practice of obtaining assistance from another lawyer for accomplishment of particular aspects of litigation, without the pri- or knowledge or consent of the client, is not only commonplace, but judicially sanctioned, when the arrangement does not burden the client beyond his retainer. As stated in Corpus Juris Secundum, the rule is that, subject to “this limitation” of not increasing the financial obligation of the client, a retained attorney is “at liberty to employ as many assistants in a case as he chooses.” In general terms, when retained counsel is unable to attend personally to the needs of his clients, he may “properly arrange with another competent lawyer to do what is necessary to protect the immediate interests of his clients during any period of absence or incapacity.” 7A C.J.S. Attorney and Client § 217. Sergeant McNair’s memorandum demonstrates that Attorney Sepe perceived himself to be in that situation, and, therefore, concluded that, notwithstanding Captain Braun had not previously participated in the case, the Captain could *227discharge the defense responsibilities during the post-trial proceedings. Consequently, he delegated those responsibilities to Captain Braun. That delegation served to protect “the immediate interests of” the accused because it assured that the defense reply to the staff judge advocate’s review would be submitted to the convening authority before he was likely to act on the case.4 There was, therefore, no substitution of counsel and no concomitant need to obtain accused’s consent to Captain Braun’s examination of, and response to, the staff judge advocate’s review. As I agree with the Court of Military Review’s analysis of what transpired in the post-trial proceedings, I would affirm its decision.
. See Cook, Courts-Martial: The Third System in American Criminal Law, So.Ill.L.J. 1 (1978). See also United States v. Palenius, 2 M.J. 86 (C.M.A.1977).
. United States v. Ray, 6 M.J. 60 (C.M.A.1978); United States v. Davis, 5 M.J. 451 (C.M.A. 1978); United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978).
. United States v. Goode, 1 M.J. 3 (C.M.A. 1975).
. Under Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), the expiration of more than 90 days between the imposition of post-conviction restraint upon an accused and the convening authority’s action gave rise to a rebuttable presumption that the delay was prejudicial to the accused. The rule has since been terminated by United States v. Banks, 7 M.J. 92 (C.M.A.1979). However, it was in effect at the time of these proceedings, and it exerted a strong influence upon a convening authority to act within the 90-day period to lessen the likelihood of a defense challenge to the timeliness of his action. See my separate opinion in United States v. Iverson, 5 M.J. 440, 447-48 (C.M.A.1978). | 11-24-2022 | [
"COOK, Judge (concurring in part and dissenting in part): I agree with the disposition of the instructional issue in Part I of Chief Judge Everett’s opinion, but I am impelled by the law and the record before us to dissent from the remainder of the opinion because the issue is not substitution of counsel but the delegation of responsibility to another lawyer. *226Elsewhere, I set out my reservations as to imposition upon civilian counsel of the duty to represent an accused during review of the record of his conviction, absent evidence that counsel is obligated to do so under his retainer with the accused.1 However, the Court has consistently assumed,2 in the absence of evidence to the contrary, that a civilian lawyer representing an accused at trial remains his counsel after trial, for the purpose of receiving service of, and responding to, the staff judge advocate’s post-trial review, as provided by the Goode rule.3 Here, in his affidavit, civilian counsel does not expressly admit his awareness of his responsibility in respect to the post-trial review. However, he declares, unequivocally, that he does “not doubt the truthfulness of SFC McNair’s statement.” McNair’s memorandum for the record demonstrates that Attorney Sepe, civilian counsel, knew that, as trial defense counsel, he had to receive, and respond to, the staff judge advocate’s review.",
"The memorandum, which Sergeant McNair later stated, “with full certainty,” set forth “exactly what took place,” attests that when Captain Braun, the detailed defense counsel, was served with the staff judge advocate’s review, he indicated he had not participated in the trial. As a result, arrangements were made to serve Attorney Sepe, but these failed. Several attempts to reach Mr. Sepe by telephone also failed. However, on June 18 Mr. Sepe telephoned McNair. He instructed McNair to give the record of trial to Captain Braun for the “post-trial work.” In his own affidavit, Attorney Sepe does not deny that the conversation with Sergeant McNair took place.",
"He says only: “I do not recall delegating to CPT Braun the task of studying the Post-Trial Review by the SJA or the Record of Trial.” The Court of Military Review evaluated the affidavits, and the other documentary matters submitted to it, and concluded they demonstrated that Attorney Sepe “advised .. . [the Government, in the person of Sergeant McNair who was the noncommissioned officer in charge of the staff judge advocate’s office] to make service on the detailed counsel” for accomplishment of the Goode review.",
"In my opinion, the evidence compellingly supports the findings of fact by the Court of Military Review, and, therefore, the findings are binding upon this Court. United States v. Little, 1 M.J. 476 (C.M.A. 1976). Having concluded that Attorney Sepe had requested Captain Braun to do the necessary “post-trial work,” the Court of Military Review observed that “[i]t is not uncommon for attorneys to share or delegate responsibilities in a given case.” Indeed, the practice of obtaining assistance from another lawyer for accomplishment of particular aspects of litigation, without the pri- or knowledge or consent of the client, is not only commonplace, but judicially sanctioned, when the arrangement does not burden the client beyond his retainer.",
"As stated in Corpus Juris Secundum, the rule is that, subject to “this limitation” of not increasing the financial obligation of the client, a retained attorney is “at liberty to employ as many assistants in a case as he chooses.” In general terms, when retained counsel is unable to attend personally to the needs of his clients, he may “properly arrange with another competent lawyer to do what is necessary to protect the immediate interests of his clients during any period of absence or incapacity.” 7A C.J.S. Attorney and Client § 217.",
"Sergeant McNair’s memorandum demonstrates that Attorney Sepe perceived himself to be in that situation, and, therefore, concluded that, notwithstanding Captain Braun had not previously participated in the case, the Captain could *227discharge the defense responsibilities during the post-trial proceedings. Consequently, he delegated those responsibilities to Captain Braun. That delegation served to protect “the immediate interests of” the accused because it assured that the defense reply to the staff judge advocate’s review would be submitted to the convening authority before he was likely to act on the case.4 There was, therefore, no substitution of counsel and no concomitant need to obtain accused’s consent to Captain Braun’s examination of, and response to, the staff judge advocate’s review. As I agree with the Court of Military Review’s analysis of what transpired in the post-trial proceedings, I would affirm its decision. . See Cook, Courts-Martial: The Third System in American Criminal Law, So.Ill.L.J.",
"1 (1978). See also United States v. Palenius, 2 M.J. 86 (C.M.A.1977). . United States v. Ray, 6 M.J. 60 (C.M.A.1978); United States v. Davis, 5 M.J. 451 (C.M.A. 1978); United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978). . United States v. Goode, 1 M.J. 3 (C.M.A. 1975). . Under Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), the expiration of more than 90 days between the imposition of post-conviction restraint upon an accused and the convening authority’s action gave rise to a rebuttable presumption that the delay was prejudicial to the accused. The rule has since been terminated by United States v. Banks, 7 M.J. 92 (C.M.A.1979). However, it was in effect at the time of these proceedings, and it exerted a strong influence upon a convening authority to act within the 90-day period to lessen the likelihood of a defense challenge to the timeliness of his action. See my separate opinion in United States v. Iverson, 5 M.J. 440, 447-48 (C.M.A.1978)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8643873/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Court of Appeals of the State of Georgia
ATLANTA, April 17, 2015
The Court of Appeals hereby passes the following order
A15I0168. DAVID L. HUGUENIN, P.C. v. MICHAEL H. ENGLISH.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this order. The Clerk of Superior Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
14CV0067
Court of Appeals of the State of Georgia Clerk's Office, Atlanta, April 17, 2015.
I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto affixed the day and year last above written.
, Clerk. | 05-05-2015 | [
"Court of Appeals of the State of Georgia ATLANTA, April 17, 2015 The Court of Appeals hereby passes the following order A15I0168. DAVID L. HUGUENIN, P.C. v. MICHAEL H. ENGLISH. Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this order. The Clerk of Superior Court is directed to include a copy of this order in the record transmitted to the Court of Appeals. LC NUMBERS: 14CV0067 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, April 17, 2015. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2798521/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION OF THE COURT Memorandum. Order entered on November 30, 1999 unanimously reversed upon the law and motion to vacate judgment granted to the extent of remanding the matter for a hearing and de novo determination by a different judge. Appeal from order dated August 3, 2000 dismissed. Defendant’s original motion to vacate his guilty plea should have been determined after a hearing since the sworn allegations of fact essential to support the motion were neither conceded by the People to be true nor conclusively established by unquestionable documentary proof (CPL 440.30). We note that defense counsel should not have been disqualified. Although the transfer of a defense attorney to a District Attorney’s office might well create á conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney (People v Shinkle, 51 NY2d 417), the converse situation of an Assistant District Attorney transferring to a defense counsel’s office involves no such conflict (People v Sawyer, 83 AD2d 205, affd 57 NY2d 12, cert denied 459 US 1178; see also, People v Lincoln, 109 AD2d 1044, 1047 [Casey, J., dissenting on other grounds]). The latter situation will ordinarily create no appearance of impropriety or opportunity for abuse of confidence (see, People v Sawyer, supra). Although disqualification may be required in appropriate circumstances (People v Lincoln, supra), in the case at bar there was no such showing. While an attorney employed in defense counsel’s firm had been previously assigned to driving while intoxicated prosecutions on the District Attorney’s staff, it appears that he was not assigned to defendant’s case, and it was not adequately set forth how, if at all, defendant’s prosecution was actually “aided or promoted” (Judiciary Law § 493) by him. Furthermore, the People failed to point to any information that the attorney might have been privy to which other counsel could not obtain through discovery or for which the People would be unable to seek a protective order (see, CPL 240.20). The right to counsel of one’s own choosing entails a fundamental, constitutional right (People v Arroyave, 49 NY2d 264, 273; Matter of Moxham v Hannigan, 89 AD2d 300, 302-303). Therefore, courts *82must remain vigilant in their duty to ensure that a defendant’s right to retain counsel of his own choosing is protected (see, People v Arroyave, supra, at 270). The appeal from the November 30, 1999 order does not bring up for review the August 3, 2000 order granting renewal since no appeal would lie from the August 3, 2000 order as of right (CPLR 5517 [b]; CPL 450.10). The separate appeal taken from the August 3, 2000 order is dismissed because it was not taken as of right or by permission (CPL 450.10, 450.15). Floyd, P. J., Colabella and Coppola, JJ., concur. | 02-05-2022 | [
"OPINION OF THE COURT Memorandum. Order entered on November 30, 1999 unanimously reversed upon the law and motion to vacate judgment granted to the extent of remanding the matter for a hearing and de novo determination by a different judge. Appeal from order dated August 3, 2000 dismissed. Defendant’s original motion to vacate his guilty plea should have been determined after a hearing since the sworn allegations of fact essential to support the motion were neither conceded by the People to be true nor conclusively established by unquestionable documentary proof (CPL 440.30). We note that defense counsel should not have been disqualified. Although the transfer of a defense attorney to a District Attorney’s office might well create á conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney (People v Shinkle, 51 NY2d 417), the converse situation of an Assistant District Attorney transferring to a defense counsel’s office involves no such conflict (People v Sawyer, 83 AD2d 205, affd 57 NY2d 12, cert denied 459 US 1178; see also, People v Lincoln, 109 AD2d 1044, 1047 [Casey, J., dissenting on other grounds]).",
"The latter situation will ordinarily create no appearance of impropriety or opportunity for abuse of confidence (see, People v Sawyer, supra). Although disqualification may be required in appropriate circumstances (People v Lincoln, supra), in the case at bar there was no such showing. While an attorney employed in defense counsel’s firm had been previously assigned to driving while intoxicated prosecutions on the District Attorney’s staff, it appears that he was not assigned to defendant’s case, and it was not adequately set forth how, if at all, defendant’s prosecution was actually “aided or promoted” (Judiciary Law § 493) by him. Furthermore, the People failed to point to any information that the attorney might have been privy to which other counsel could not obtain through discovery or for which the People would be unable to seek a protective order (see, CPL 240.20). The right to counsel of one’s own choosing entails a fundamental, constitutional right (People v Arroyave, 49 NY2d 264, 273; Matter of Moxham v Hannigan, 89 AD2d 300, 302-303). Therefore, courts *82must remain vigilant in their duty to ensure that a defendant’s right to retain counsel of his own choosing is protected (see, People v Arroyave, supra, at 270).",
"The appeal from the November 30, 1999 order does not bring up for review the August 3, 2000 order granting renewal since no appeal would lie from the August 3, 2000 order as of right (CPLR 5517 [b]; CPL 450.10). The separate appeal taken from the August 3, 2000 order is dismissed because it was not taken as of right or by permission (CPL 450.10, 450.15). Floyd, P. J., Colabella and Coppola, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6214543/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.3 EXECUTION VERSION SECOND AMENDMENT SECOND AMENDMENT, dated as of May 1, 2015, 2015 (this “Amendment”), to the Unsecured Credit Agreement, dated as of November 22, 2013 (as amended, modified, restated and supplemented from time to time, the “Credit Agreement”), among XL GROUP PLC, an Irish public limited company (“XL Group”), XLIT LTD., an exempted company incorporated in the Cayman Islands with limited liability (“XLIT”), X.L. AMERICA, INC., a Delaware corporation (“XL America”), XL INSURANCE (BERMUDA) LTD, a Bermuda limited liability company (“XL Insurance (Bermuda)”), XL RE LTD, a Bermuda limited liability company (“XL Re”), XL RE EUROPE SE (formerly known as XL RE EUROPE PLC), a European company organized under the laws of Ireland (“XL Re Europe”), XL INSURANCE COMPANY SE (formerly known as XL INSURANCE COMPANY PLC), a European company domiciled in the United Kingdom (“XL Insurance”), XL INSURANCE SWITZERLAND LTD, a company limited by shares organized under the laws of Switzerland (“XL Switzerland”), and XL LIFE LTD, a Bermuda company (“XL Life” and together with XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re, XL Re Europe, XL Insurance and XL Switzerland, each an “Account Party” and collectively, the “Account Parties”; XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re and XL Life, each a “Guarantor” and collectively the “Guarantors”; the Account Parties and the Guarantors being collectively referred to as the “Obligors”), the several lenders from time to time parties thereto (the “Lenders”) and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”).
W I T N E S S E T H: WHEREAS, pursuant to the Credit Agreement, the Lenders agreed to make certain extensions of credit to the Account Parties; WHEREAS, the Account Parties have requested that certain provisions of the Credit Agreement be amended as set forth herein; and WHEREAS, the Required Lenders are willing to agree to such amendments on the terms set forth herein; NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. Defined Terms; Rules of Construction. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction set forth in Section 1.02 of the Credit Agreement shall apply herein.
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SECTION 2. Amendments to Credit Agreement. 2.1 References Generally. On and after the Second Amendment Effective Date, each reference in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, “hereof” and words of similar import) shall be deemed to be references to the Credit Agreement as amended hereby. 2.2 Amendments to Section 1.01 (Defined Terms) of the Credit Agreement. (a) The following defined terms shall be inserted in Section 1.01 of the Credit Agreement in appropriate alphabetical order: “Implementation Agreement” means the Implementation Agreement dated as of January 9, 2015 by and among XL Group, Green Holdings Limited and Catlin Group Limited.” “Second Amendment” means the Second Amendment, dated as of May 1, 2015, to this Agreement among the Obligors, the Administrative Agent and the Lenders party thereto.” “Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment, which date is, for the avoidance of doubt, May 1, 2015.” (b) The definition of “Federal Funds Effective Rate” is hereby amended by inserting the following at the end thereof: “; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”. (c) The definition of “LIBO Rate” is hereby amended by inserting the following at the end of the first sentence thereof: “; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”. 2.3 Amendment to Section 2.19 (Taxes) of the Credit Agreement. Section 2.19 of the Credit Agreement is hereby amended by inserting the following clause (h): “(h) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the Second Amendment Effective Date, the Account Parties and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).” 2.4 Amendment to Section 7.03 (Liens) of the Credit Agreement. Clause (c) of Section 7.03 of the Credit Agreement is hereby amended and restated as follows: “(c) Liens existing (i) on the date hereof listed in Part B of Schedule II, (ii) Liens existing on the First Amendment Effective Date or, as expressly specified therein, incurred after the First Amendment Effective Date and, in each case, listed in Part D of Schedule II and (iii) Liens existing on the Second Amendment Effective Date listed in Part F of Schedule II, and, in each case, extension, renewal and replacement Liens upon the same property, provided that the principal amount secured by each Lien
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constituting such an extension, renewal or replacement Lien shall not exceed the amount secured by the Lien theretofore existing;” 2.5 Amendments to Section 7.07 (Indebtedness) of the Credit Agreement. Clause (c) of Section 7.07 of the Credit Agreement is hereby amended and restated as follows: “(c) other Indebtedness existing (i) on the date hereof described in Part A of Schedule II, (ii) other Indebtedness existing on the First Amendment Effective Date described in Part C of Schedule II and (iii) other Indebtedness existing on the Second Amendment Effective Date described in Part E of Schedule II, and, in each case, extensions, renewals and replacements of, or amendments, modifications, or supplements to, any such Indebtedness that, in each case, do not increase the outstanding principal amount thereof;” 2.6 Amendments to Schedules to the Credit Agreement. Schedule II to the Credit Agreement is hereby amended by inserting Exhibit A hereto as Part E and Part F of Schedule II, respectively. SECTION 3. Conditions to Effectiveness. This Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which: (a) Amendment. The Administrative Agent shall have received a counterpart of this Amendment, in each case executed and delivered by a duly authorized officer of each of the Obligors, the Administrative Agent and Lenders constituting the Required Lenders. (b) Payment of Fees, Expenses. XL Group shall have paid all fees and expenses as required pursuant to Section 4 of this Amendment or otherwise in connection with this Amendment to the extent invoiced at least one Business Day prior to the Second Amendment Effective Date. (c) Representations and Warranties. The representations and warranties set forth in Section 5 of this Amendment shall be true and correct. (d) No Defaults. No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date, after giving effect to this Amendment. (e) Catlin Acquisition. XL Group’s acquisition of Catlin Group Limited shall have been consummated in accordance with the terms of the Implementation Agreement. SECTION 4. Payment of Fees and Expenses. The Obligors agree to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the documented reasonable fees, charges and disbursements of counsel to the Administrative Agent. SECTION 5. Representations and Warranties. The Obligors hereby represent and warrant that (a) each of the representations and warranties set forth in Article IV of the Credit Agreement and in the other Credit Documents shall be, both immediately before and after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Second Amendment Effective Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (b) both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (c) this
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Amendment has been duly executed and delivered by each Obligor and constitutes a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium, examination or similar laws of general applicability affecting the enforcement of creditors’ rights and (y) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). SECTION 6. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO SERVICE OF PROCESS. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.01 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT SHALL EFFECT THE RIGHT OF ANY PARTY TO THIS AMENDMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. SECTION 7. Amendments; Execution in Counterparts. (a) This Amendment shall not constitute an amendment of any other provision of the Credit Agreement not referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Obligors that would require a waiver or consent of the Lenders or the Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect and each of the Obligors agrees, with respect to each Credit Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Credit Document, as amended hereby, including guarantees, shall remain in full force and effect. This Amendment shall constitute a Credit Document for the purposes of the Credit Agreement and the other Credit Documents. This Amendment may not be amended nor may any provision hereof be waived, amended or modified except in writing signed by the Obligors, the Administrative Agent and the Required Lenders. (b) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by telecopy or email shall be effective as delivery of a manually executed counterpart of this Amendment. SECTION 8. Integration. This Amendment and the other Credit Documents constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. SECTION 9. Severability. To the fullest extent permitted by law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
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ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. [Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written. XL GROUP PLC, as an Account Party and a Guarantor By /s/ Peter Porrino Name: Peter Porrino Title: EVP + CFO U.S. Federal Tax Identification No.: 98-0665416
XLIT LTD., as an Account Party and a Guarantor By /s/ Ronan Redmond Name: Ronan Redmond Title: Director U.S. Federal Tax Identification No.: 98-0191089
X.L. AMERICA, INC., as an Account Party and a Guarantor By /s/ Richard G. McCarty Name: Richard G. McCarty Title: Senior Vice President and Secretary U.S. Federal Tax Identification No.: 06-1516268
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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XL INSURANCE COMPANY SE,
as an Account Party By /s/ Graham Brady Name: Graham Brady Title: Company Secretary U.S. Federal Tax Identification No.: 30-0479685
XL INSURANCE SWITZERLAND LTD, as an Account Party By /s/ Daniel Maurer Name: Daniel Maurer Title: Chairman By /s/ Wouter Moritz Name: Wouter Moritz Title: Director U.S. Federal Tax Identification No.: 30-0479676
XL LIFE LTD, as an Account Party and a Guarantor By /s/ Mark Twite Name: Mark Twite Title: Director U.S. Federal Tax Identification No.: 98-0228561
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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XL INSURANCE (BERMUDA) LTD,
as an Account Party and a Guarantor By /s/ C. Stanley Lee Name: C. Stanley Lee Title: Director U.S. Federal Tax Identification No.: 98-0354869
XL RE LTD, as an Account Party and a Guarantor By /s/ Mark Twite Name: Mark Twite Title: Director U.S. Federal Tax Identification No.: 98-0351953
XL RE EUROPE SE, as an Account Party By /s/ Alexandre Barrage Name: Alexandre Barrage Title: Chief Financial Officer U.S. Federal Tax Identification No.: 30-0479679
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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LENDERS JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent By /s/ Kristen M. Murphy Name: Kristen M. Murphy Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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DEUTSCHE BANK AG NEW YORK BRANCH By /s/ John S. McGill Name: John S. McGill Title: Director By /s/ Virginia Cosenza Name: Virginia Cosenza Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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THE ROYAL BANK OF SCOTLAND PLC By /s/ Karen Beatty Name: Karen Beatty Title: Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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Barclays Bank PLC By /s/ Alicia Borys Name: Alicia Borys Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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` CREDIT AGRICOLE CORPORATE & INVESTMENT BANK By /s/ Jorge Fries Name: Jorge Fries Title: Managing Director By /s/ Juliette Cohen Name: Juliette Cohen Title: Managing Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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GOLDMAN SACHS BANK USA By /s/ Jamie Minieri Name: Jamie Minieri Title: Authorized Signatory
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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HSBC Bank, USA, National Association By /s/ Richard Herder Name: Richard Herder Title: Managing Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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ING BANK N.V., LONDON BRANCH By /s/ M Groen Name: M Groen Title: Director By /s/ M E R Sharman Name: M E R Sharman Title: Managing Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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Lloyds Bank plc By /s/ Julia R. Franklin Name: Julia R. Franklin - F014 Title: Vice President By /s/ Daven Popat Name: Daven Popat - P003 Title: Senior Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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THE BANK OF NEW YORK MELLON By /s/ Michael Pensari Name: Michael Pensari Title: Managing Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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The Bank of Tokyo Mitsubishi UFJ, LTD By /s/ O Cortez Name: O. Cortez Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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BNP Paribas By /s/ Nair P. Raghu Name: Nair P. Raghu Title: Vice President By /s/ Riad Jafarov Name: Riad Jafarov Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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COMMERZBANK AG, NEW YORK BRANCH By /s/ Barry S. Feigenbaum Name: Barry S. Feigenbaum Title: Managing Director By /s/ Christoph Zimmermann Name: Christoph Zimmermann Title: Vice President
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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MORGAN STANLEY BANK, N.A. By /s/ Harry Comninellis Name: Harry Comninellis Title: Authorized Signatory
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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WELLS FARGO BANK, NATIONAL ASSOCIATION By /s/ Grainne Pergolini Name: Grainne Pergolini Title: Managing Director
[Second Amendment to Unsecured Credit Agreement – Signature Page]
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EXHIBIT A SCHEDULE II Part E 1. Letter of Credit Facility Agreement dated 4 April 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd, Catlin Insurance Company (UK) Limited, Catlin Re Schweiz AG and Catlin Underwriting Agencies Limited (as Original Borrowers) and Barclays Bank Plc, Credit Suisse AG, JPMorgan Chase Bank, N.A., London Branch and Citibank Europe Plc (as Agent) in the sum of U.S.$450,000,000.
2. An unsecured Facilities Agreement dated 22 January 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Underwriting Agencies Limited, Catlin Insurance Company Ltd. and Catlin Re Schweiz AG (as Original Borrowers) and Commonwealth Bank of Australia, London Branch in the sum of U.S.$75,000,000.
3. An unsecured Facilities Agreement (as Amended and Restated) dated 15 January 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Underwriting Agencies Limited, Catlin Insurance Company Ltd. and Catlin Re Schweiz AG (as Original Borrowers) and Wells Fargo Bank, N.A. in the sum of U.S.$75,000,000.
4. An unsecured Facility Agreement dated 18 December 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and National Australia Bank Limited in the sum of U.S.$100,000,000.
5. An unsecured Facility Agreement dated 21 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and ING Bank N.V., London Branch (as the Bank) in the sum of U.S.$100,000,000.
6. An unsecured Facility Agreement dated 21 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and Standard Chartered Bank in the sum of U.S.$100,000,000.
7. An unsecured Facility Agreement dated 26 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and The Royal Bank of Scotland Plc in the sum of U.S.$75,000,000.
8. An unsecured Facility Agreement dated 30 June 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. and Catlin Underwriting Agencies Limited (as Original Borrowers) and the National Australia Bank Limited in the sum of A$50,000,000.
9. A secured Facility Agreement dated 28 July 2011 between Catlin Re Switzerland Ltd and Citibank, N.A. and Citibank Europe Plc in the sum of U.S.$50,000,000.
10. A secured Facility Agreement dated 9 November 2010 between Catlin Insurance Company Ltd. and Citibank Europe Plc in the sum of U.S.$230,000,000.
11. XLIT Ltd’s $500 million aggregate principal amount of 4.450% subordinated notes due 2025 and $500 million aggregate principal amount of 5.500% subordinated notes due 2045.
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Wellington Underwriting PLC’s (A) US$27,000,000 Floating Rate Subordinated Notes due 2036; (B) €7,000,000 Floating Rate Subordinated Notes due 2035; (C) US$31,300,000 Floating Rate Subordinated Notes due 2036; (D) US$9,800,000 Floating Rate Subordinated Notes due 2036 and (E) €11,000,000 Floating Rate Subordinated Notes due 2036.
12. Catlin Finance (UK) Limited’s US$475,000,000 Long-Dated Subordinated Guaranteed Loan Notes subject to and with the benefit of a loan note deed made by way of deed poll by Catlin Finance (UK) Limited, dated June 27, 2007, and an irrevocable guarantee agreement made by way of deed poll by Catlin (North American) Holdings Limited dated June 27, 2007.
Part F 1. Reinsurance Deposit and Securities Portfolio Security Agreement by and between Catlin Re Switzerland Ltd, as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated July 28, 2011.
2. Reinsurance Deposit and Securities Portfolio Security Agreement by and between Catlin Insurance Company Ltd., as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated November 9, 2010. | [
"Exhibit 10.3 EXECUTION VERSION SECOND AMENDMENT SECOND AMENDMENT, dated as of May 1, 2015, 2015 (this “Amendment”), to the Unsecured Credit Agreement, dated as of November 22, 2013 (as amended, modified, restated and supplemented from time to time, the “Credit Agreement”), among XL GROUP PLC, an Irish public limited company (“XL Group”), XLIT LTD., an exempted company incorporated in the Cayman Islands with limited liability (“XLIT”), X.L. AMERICA, INC., a Delaware corporation (“XL America”), XL INSURANCE (BERMUDA) LTD, a Bermuda limited liability company (“XL Insurance (Bermuda)”), XL RE LTD, a Bermuda limited liability company (“XL Re”), XL RE EUROPE SE (formerly known as XL RE EUROPE PLC), a European company organized under the laws of Ireland (“XL Re Europe”), XL INSURANCE COMPANY SE (formerly known as XL INSURANCE COMPANY PLC), a European company domiciled in the United Kingdom (“XL Insurance”), XL INSURANCE SWITZERLAND LTD, a company limited by shares organized under the laws of Switzerland (“XL Switzerland”), and XL LIFE LTD, a Bermuda company (“XL Life” and together with XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re, XL Re Europe, XL Insurance and XL Switzerland, each an “Account Party” and collectively, the “Account Parties”; XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re and XL Life, each a “Guarantor” and collectively the “Guarantors”; the Account Parties and the Guarantors being collectively referred to as the “Obligors”), the several lenders from time to time parties thereto (the “Lenders”) and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”). W I T N E S S E T H: WHEREAS, pursuant to the Credit Agreement, the Lenders agreed to make certain extensions of credit to the Account Parties; WHEREAS, the Account Parties have requested that certain provisions of the Credit Agreement be amended as set forth herein; and WHEREAS, the Required Lenders are willing to agree to such amendments on the terms set forth herein; NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1.",
"Defined Terms; Rules of Construction. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction set forth in Section 1.02 of the Credit Agreement shall apply herein. -------------------------------------------------------------------------------- SECTION 2. Amendments to Credit Agreement. 2.1 References Generally. On and after the Second Amendment Effective Date, each reference in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, “hereof” and words of similar import) shall be deemed to be references to the Credit Agreement as amended hereby. 2.2 Amendments to Section 1.01 (Defined Terms) of the Credit Agreement. (a) The following defined terms shall be inserted in Section 1.01 of the Credit Agreement in appropriate alphabetical order: “Implementation Agreement” means the Implementation Agreement dated as of January 9, 2015 by and among XL Group, Green Holdings Limited and Catlin Group Limited.” “Second Amendment” means the Second Amendment, dated as of May 1, 2015, to this Agreement among the Obligors, the Administrative Agent and the Lenders party thereto.” “Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment, which date is, for the avoidance of doubt, May 1, 2015.” (b) The definition of “Federal Funds Effective Rate” is hereby amended by inserting the following at the end thereof: “; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”.",
"(c) The definition of “LIBO Rate” is hereby amended by inserting the following at the end of the first sentence thereof: “; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”. 2.3 Amendment to Section 2.19 (Taxes) of the Credit Agreement. Section 2.19 of the Credit Agreement is hereby amended by inserting the following clause (h): “(h) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the Second Amendment Effective Date, the Account Parties and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).” 2.4 Amendment to Section 7.03 (Liens) of the Credit Agreement. Clause (c) of Section 7.03 of the Credit Agreement is hereby amended and restated as follows: “(c) Liens existing (i) on the date hereof listed in Part B of Schedule II, (ii) Liens existing on the First Amendment Effective Date or, as expressly specified therein, incurred after the First Amendment Effective Date and, in each case, listed in Part D of Schedule II and (iii) Liens existing on the Second Amendment Effective Date listed in Part F of Schedule II, and, in each case, extension, renewal and replacement Liens upon the same property, provided that the principal amount secured by each Lien -------------------------------------------------------------------------------- constituting such an extension, renewal or replacement Lien shall not exceed the amount secured by the Lien theretofore existing;” 2.5 Amendments to Section 7.07 (Indebtedness) of the Credit Agreement.",
"Clause (c) of Section 7.07 of the Credit Agreement is hereby amended and restated as follows: “(c) other Indebtedness existing (i) on the date hereof described in Part A of Schedule II, (ii) other Indebtedness existing on the First Amendment Effective Date described in Part C of Schedule II and (iii) other Indebtedness existing on the Second Amendment Effective Date described in Part E of Schedule II, and, in each case, extensions, renewals and replacements of, or amendments, modifications, or supplements to, any such Indebtedness that, in each case, do not increase the outstanding principal amount thereof;” 2.6 Amendments to Schedules to the Credit Agreement. Schedule II to the Credit Agreement is hereby amended by inserting Exhibit A hereto as Part E and Part F of Schedule II, respectively.",
"SECTION 3. Conditions to Effectiveness. This Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which: (a) Amendment. The Administrative Agent shall have received a counterpart of this Amendment, in each case executed and delivered by a duly authorized officer of each of the Obligors, the Administrative Agent and Lenders constituting the Required Lenders. (b) Payment of Fees, Expenses.",
"XL Group shall have paid all fees and expenses as required pursuant to Section 4 of this Amendment or otherwise in connection with this Amendment to the extent invoiced at least one Business Day prior to the Second Amendment Effective Date. (c) Representations and Warranties. The representations and warranties set forth in Section 5 of this Amendment shall be true and correct. (d) No Defaults. No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date, after giving effect to this Amendment. (e) Catlin Acquisition. XL Group’s acquisition of Catlin Group Limited shall have been consummated in accordance with the terms of the Implementation Agreement. SECTION 4. Payment of Fees and Expenses.",
"The Obligors agree to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the documented reasonable fees, charges and disbursements of counsel to the Administrative Agent. SECTION 5. Representations and Warranties. The Obligors hereby represent and warrant that (a) each of the representations and warranties set forth in Article IV of the Credit Agreement and in the other Credit Documents shall be, both immediately before and after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Second Amendment Effective Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (b) both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (c) this -------------------------------------------------------------------------------- Amendment has been duly executed and delivered by each Obligor and constitutes a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium, examination or similar laws of general applicability affecting the enforcement of creditors’ rights and (y) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).",
"SECTION 6. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO SERVICE OF PROCESS. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).",
"EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.01 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT SHALL EFFECT THE RIGHT OF ANY PARTY TO THIS AMENDMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. SECTION 7. Amendments; Execution in Counterparts. (a) This Amendment shall not constitute an amendment of any other provision of the Credit Agreement not referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Obligors that would require a waiver or consent of the Lenders or the Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect and each of the Obligors agrees, with respect to each Credit Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Credit Document, as amended hereby, including guarantees, shall remain in full force and effect.",
"This Amendment shall constitute a Credit Document for the purposes of the Credit Agreement and the other Credit Documents. This Amendment may not be amended nor may any provision hereof be waived, amended or modified except in writing signed by the Obligors, the Administrative Agent and the Required Lenders. (b) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by telecopy or email shall be effective as delivery of a manually executed counterpart of this Amendment. SECTION 8. Integration. This Amendment and the other Credit Documents constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. SECTION 9. Severability. To the fullest extent permitted by law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be -------------------------------------------------------------------------------- ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.",
"[Signature Pages Follow] -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written. XL GROUP PLC, as an Account Party and a Guarantor By /s/ Peter Porrino Name: Peter Porrino Title: EVP + CFO U.S. Federal Tax Identification No. : 98-0665416 XLIT LTD., as an Account Party and a Guarantor By /s/ Ronan Redmond Name: Ronan Redmond Title: Director U.S. Federal Tax Identification No.",
": 98-0191089 X.L. AMERICA, INC., as an Account Party and a Guarantor By /s/ Richard G. McCarty Name: Richard G. McCarty Title: Senior Vice President and Secretary U.S. Federal Tax Identification No. : 06-1516268 [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- XL INSURANCE COMPANY SE, as an Account Party By /s/ Graham Brady Name: Graham Brady Title: Company Secretary U.S. Federal Tax Identification No. : 30-0479685 XL INSURANCE SWITZERLAND LTD, as an Account Party By /s/ Daniel Maurer Name: Daniel Maurer Title: Chairman By /s/ Wouter Moritz Name: Wouter Moritz Title: Director U.S. Federal Tax Identification No. : 30-0479676 XL LIFE LTD, as an Account Party and a Guarantor By /s/ Mark Twite Name: Mark Twite Title: Director U.S. Federal Tax Identification No. : 98-0228561 [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- XL INSURANCE (BERMUDA) LTD, as an Account Party and a Guarantor By /s/ C. Stanley Lee Name: C. Stanley Lee Title: Director U.S. Federal Tax Identification No. : 98-0354869 XL RE LTD, as an Account Party and a Guarantor By /s/ Mark Twite Name: Mark Twite Title: Director U.S. Federal Tax Identification No. : 98-0351953 XL RE EUROPE SE, as an Account Party By /s/ Alexandre Barrage Name: Alexandre Barrage Title: Chief Financial Officer U.S. Federal Tax Identification No.",
": 30-0479679 [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- LENDERS JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent By /s/ Kristen M. Murphy Name: Kristen M. Murphy Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- DEUTSCHE BANK AG NEW YORK BRANCH By /s/ John S. McGill Name: John S. McGill Title: Director By /s/ Virginia Cosenza Name: Virginia Cosenza Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- THE ROYAL BANK OF SCOTLAND PLC By /s/ Karen Beatty Name: Karen Beatty Title: Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- Barclays Bank PLC By /s/ Alicia Borys Name: Alicia Borys Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- ` CREDIT AGRICOLE CORPORATE & INVESTMENT BANK By /s/ Jorge Fries Name: Jorge Fries Title: Managing Director By /s/ Juliette Cohen Name: Juliette Cohen Title: Managing Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- GOLDMAN SACHS BANK USA By /s/ Jamie Minieri Name: Jamie Minieri Title: Authorized Signatory [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- HSBC Bank, USA, National Association By /s/ Richard Herder Name: Richard Herder Title: Managing Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- ING BANK N.V., LONDON BRANCH By /s/ M Groen Name: M Groen Title: Director By /s/ M E R Sharman Name: M E R Sharman Title: Managing Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- Lloyds Bank plc By /s/ Julia R. Franklin Name: Julia R. Franklin - F014 Title: Vice President By /s/ Daven Popat Name: Daven Popat - P003 Title: Senior Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- THE BANK OF NEW YORK MELLON By /s/ Michael Pensari Name: Michael Pensari Title: Managing Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- The Bank of Tokyo Mitsubishi UFJ, LTD By /s/ O Cortez Name: O. Cortez Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- BNP Paribas By /s/ Nair P. Raghu Name: Nair P. Raghu Title: Vice President By /s/ Riad Jafarov Name: Riad Jafarov Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- COMMERZBANK AG, NEW YORK BRANCH By /s/ Barry S. Feigenbaum Name: Barry S. Feigenbaum Title: Managing Director By /s/ Christoph Zimmermann Name: Christoph Zimmermann Title: Vice President [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- MORGAN STANLEY BANK, N.A.",
"By /s/ Harry Comninellis Name: Harry Comninellis Title: Authorized Signatory [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- WELLS FARGO BANK, NATIONAL ASSOCIATION By /s/ Grainne Pergolini Name: Grainne Pergolini Title: Managing Director [Second Amendment to Unsecured Credit Agreement – Signature Page] -------------------------------------------------------------------------------- EXHIBIT A SCHEDULE II Part E 1. Letter of Credit Facility Agreement dated 4 April 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd, Catlin Insurance Company (UK) Limited, Catlin Re Schweiz AG and Catlin Underwriting Agencies Limited (as Original Borrowers) and Barclays Bank Plc, Credit Suisse AG, JPMorgan Chase Bank, N.A., London Branch and Citibank Europe Plc (as Agent) in the sum of U.S.$450,000,000. 2. An unsecured Facilities Agreement dated 22 January 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Underwriting Agencies Limited, Catlin Insurance Company Ltd. and Catlin Re Schweiz AG (as Original Borrowers) and Commonwealth Bank of Australia, London Branch in the sum of U.S.$75,000,000. 3. An unsecured Facilities Agreement (as Amended and Restated) dated 15 January 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Underwriting Agencies Limited, Catlin Insurance Company Ltd. and Catlin Re Schweiz AG (as Original Borrowers) and Wells Fargo Bank, N.A.",
"in the sum of U.S.$75,000,000. 4. An unsecured Facility Agreement dated 18 December 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and National Australia Bank Limited in the sum of U.S.$100,000,000. 5. An unsecured Facility Agreement dated 21 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and ING Bank N.V., London Branch (as the Bank) in the sum of U.S.$100,000,000. 6. An unsecured Facility Agreement dated 21 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and Standard Chartered Bank in the sum of U.S.$100,000,000. 7. An unsecured Facility Agreement dated 26 November 2013 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. (as Original Borrower) and The Royal Bank of Scotland Plc in the sum of U.S.$75,000,000. 8.",
"An unsecured Facility Agreement dated 30 June 2014 between Catlin Group Limited and Catlin Insurance Company Ltd. (as Original Guarantors) and Catlin Insurance Company Ltd. and Catlin Underwriting Agencies Limited (as Original Borrowers) and the National Australia Bank Limited in the sum of A$50,000,000. 9. A secured Facility Agreement dated 28 July 2011 between Catlin Re Switzerland Ltd and Citibank, N.A. and Citibank Europe Plc in the sum of U.S.$50,000,000. 10. A secured Facility Agreement dated 9 November 2010 between Catlin Insurance Company Ltd. and Citibank Europe Plc in the sum of U.S.$230,000,000. 11. XLIT Ltd’s $500 million aggregate principal amount of 4.450% subordinated notes due 2025 and $500 million aggregate principal amount of 5.500% subordinated notes due 2045. -------------------------------------------------------------------------------- Wellington Underwriting PLC’s (A) US$27,000,000 Floating Rate Subordinated Notes due 2036; (B) €7,000,000 Floating Rate Subordinated Notes due 2035; (C) US$31,300,000 Floating Rate Subordinated Notes due 2036; (D) US$9,800,000 Floating Rate Subordinated Notes due 2036 and (E) €11,000,000 Floating Rate Subordinated Notes due 2036. 12.",
"Catlin Finance (UK) Limited’s US$475,000,000 Long-Dated Subordinated Guaranteed Loan Notes subject to and with the benefit of a loan note deed made by way of deed poll by Catlin Finance (UK) Limited, dated June 27, 2007, and an irrevocable guarantee agreement made by way of deed poll by Catlin (North American) Holdings Limited dated June 27, 2007. Part F 1. Reinsurance Deposit and Securities Portfolio Security Agreement by and between Catlin Re Switzerland Ltd, as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated July 28, 2011. 2.",
"Reinsurance Deposit and Securities Portfolio Security Agreement by and between Catlin Insurance Company Ltd., as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated November 9, 2010."
]
| 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 This communication is in response to the Amendment filed on 02/02/2021. After thorough search, prosecution history, Applicant's remarks and in view of prior arts of the record, claims 1-20 are allowed.
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 a telephone interview with Raymond Wilbur Zenkert on 03/01/2021. The application has been amended as follows: For the specification: in ¶ [00330] application programming interface (API)
For the claims: (Previously presented) A method by a computer processor comprising: creating isolated overlay tunnels over a physical underlay and creating isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys; exposing, by a multi-tenant controller, an application programming interface (API) through which a policy of a plurality of policies is defined; allocating a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier;
transmitting, by the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to a device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions; wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identifying, by the device, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and applying, by the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity.
2. (Previously presented) The method of claim 1, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical.
3. (Previously presented) The method of claim 1, further comprising performing application analysis on application data flows on the network on a per session basis.
4. (Previously presented) The method of claim 1, wherein a policy string defines a business policy applicable to traffic associated with the specific application on the network.
5. (Previously presented) The method of claim 4, wherein the policy string comprises a policy string format.
6. (Previously presented) The method of claim 5, wherein the policy string format is standardized.
7. (Previously presented) The method of claim 1, wherein traffic associated with the specific application on the network is encrypted.
8. (Previously presented) A system comprising: at least one processor and a memory coupled to the at least one processor; a device; and a centrally controllable multi-tenant controller that executes on the at least one processor, wherein the memory is configured to store data, and the at least one processor is configured to control a plurality of assets across a plurality of distributed computing environments; wherein the at least one processor coupled to the memory is configured to: create isolated overlay tunnels over a physical underlay and create isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys, and the wide area network connects the plurality of distributed computing environments; expose, via the multi-tenant controller, an application programmer interface (API) through which a policy of a plurality of policies is defined; allocate a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier; insert a specific network-isolation-identifier of the plurality of network-isolation identifiers at a network-entry and remove the specific network-isolation-identifier at a network-exit, wherein the specific network-isolation identifier is bidirectional for traffic in a virtual WAN; transmit, via the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to the device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions, wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identify, via the devices, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and apply, via the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity.
9. (Previously presented) The system of claim 8, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical.
10. (Previously presented) The system of claim 8, further configured to perform application analysis on application data flows on the network on a per session basis.
11. (Previously presented) The system of claim 8, wherein a policy string defines a business policy applicable to traffic associated with the specific application on the network.
12. (Previously presented) The system of claim 11, wherein the policy string comprises a policy string format.
13. (Previously presented) The system of claim 12, wherein the policy string format is standardized.
14. (Previously presented) The system of claim 8, wherein traffic associated with the specific application on the network is encrypted.
15. (Currently amended) A non-transitory computer-readable medium storing instructions that adapt at least one processor to: create isolated overlay tunnels over a physical underlay and create isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys; expose, by a multi-tenant controller, an application programmer interface (API) through which a policy of a plurality of policies is defined; allocate a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier; insert a specific network-isolation-identifier of the plurality of network-isolation identifiers at a network-entry and remove the specific network-isolation-identifier at a network-exit, wherein the specific network-isolation identifier is bidirectional for traffic in a virtual WAN; transmit, by the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to a device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions; wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identify, by the device, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and apply, by the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity.
16. (Currently amended) The non-transitory computer-readable medium of claim 15, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical.
17. (Currently amended) The non-transitory computer-readable medium of claim 15, wherein each policy comprises a policy string defining a business policy applicable to traffic associated with the specific application.
18. (Currently amended) The non-transitory computer-readable medium of claim 17, wherein the policy string comprises a policy string format.
19. (Currently amended) The non-transitory computer-readable medium of claim 18, wherein the policy string format is standardized.
20. (Currently amended) Thenon-transitory computer-readable medium of claim 17, wherein traffic associated with the application is encrypted.
21-27. (Canceled)
Reason for Allowance The following is an examiner’s statement of reasons for allowance: Creating isolated network segments in a wide area network (WAN) with isolated overlay tunnels wherein each of the tunnels is encrypted with different keys; inserting a bidirectional network-isolation identifier at a network-entry and removing the network-isolation identifier at a network-exit, wherein the network-isolation identifier is a virtual WAN isolation identifier; analyzing a data flow based on an application signature, wherein the application signature is based on a size pattern or a frequency pattern of encrypted flow transactions; customizing application definitions by sending a customized domain name for each application, wherein each application has a plurality of domain names.
The prior art of record does not disclose the limitations above in combination with the remaining elements in the independent claims. The allowable subject matter is now reflected in applicant’s independent claim 1 and similarly in independent claim 8 and 15. Dependent claims 2-7, 9-14, and 16-20 dependent from allowed claims and therefore are also allowed. 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 HANNAH S WANG whose telephone number is (571)272-9018. The examiner can normally be reached on Monday-Friday 9AM-5:30 PM 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, Umar Cheema can be reached on 571-270-3037. 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.
/HANNAH S WANG/Primary Examiner, Art Unit 2454 | 2021-03-09T18:02:05 | [
"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 This communication is in response to the Amendment filed on 02/02/2021. After thorough search, prosecution history, Applicant's remarks and in view of prior arts of the record, claims 1-20 are allowed. 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 a telephone interview with Raymond Wilbur Zenkert on 03/01/2021.",
"The application has been amended as follows: For the specification: in ¶ [00330] application programming interface (API) For the claims: (Previously presented) A method by a computer processor comprising: creating isolated overlay tunnels over a physical underlay and creating isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys; exposing, by a multi-tenant controller, an application programming interface (API) through which a policy of a plurality of policies is defined; allocating a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier; transmitting, by the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to a device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions; wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identifying, by the device, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and applying, by the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity.",
"2. (Previously presented) The method of claim 1, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical. 3. (Previously presented) The method of claim 1, further comprising performing application analysis on application data flows on the network on a per session basis. 4. (Previously presented) The method of claim 1, wherein a policy string defines a business policy applicable to traffic associated with the specific application on the network. 5. (Previously presented) The method of claim 4, wherein the policy string comprises a policy string format. 6. (Previously presented) The method of claim 5, wherein the policy string format is standardized. 7.",
"(Previously presented) The method of claim 1, wherein traffic associated with the specific application on the network is encrypted. 8.",
"(Previously presented) A system comprising: at least one processor and a memory coupled to the at least one processor; a device; and a centrally controllable multi-tenant controller that executes on the at least one processor, wherein the memory is configured to store data, and the at least one processor is configured to control a plurality of assets across a plurality of distributed computing environments; wherein the at least one processor coupled to the memory is configured to: create isolated overlay tunnels over a physical underlay and create isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys, and the wide area network connects the plurality of distributed computing environments; expose, via the multi-tenant controller, an application programmer interface (API) through which a policy of a plurality of policies is defined; allocate a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier; insert a specific network-isolation-identifier of the plurality of network-isolation identifiers at a network-entry and remove the specific network-isolation-identifier at a network-exit, wherein the specific network-isolation identifier is bidirectional for traffic in a virtual WAN; transmit, via the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to the device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions, wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identify, via the devices, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and apply, via the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity.",
"9. (Previously presented) The system of claim 8, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical. 10. (Previously presented) The system of claim 8, further configured to perform application analysis on application data flows on the network on a per session basis. 11. (Previously presented) The system of claim 8, wherein a policy string defines a business policy applicable to traffic associated with the specific application on the network. 12. (Previously presented) The system of claim 11, wherein the policy string comprises a policy string format. 13.",
"(Previously presented) The system of claim 12, wherein the policy string format is standardized. 14. (Previously presented) The system of claim 8, wherein traffic associated with the specific application on the network is encrypted. 15.",
"(Currently amended) A non-transitory computer-readable medium storing instructions that adapt at least one processor to: create isolated overlay tunnels over a physical underlay and create isolated network segments in a wide area network (WAN), wherein each of the tunnels is encrypted with a different set of keys; expose, by a multi-tenant controller, an application programmer interface (API) through which a policy of a plurality of policies is defined; allocate a respective identity of a plurality of identities, a respective application of a plurality of applications, and a respective network-isolation identifier of a plurality of network-isolation identifiers to each of the plurality of policies for controlling a plurality of data flows in the wide area network (WAN), wherein each of the plurality of identities comprises at least a user identity for one user associated with an enterprise, wherein each of the plurality of applications comprises an application name, and wherein each of the network-isolation identifiers is a virtual WAN isolation identifier; insert a specific network-isolation-identifier of the plurality of network-isolation identifiers at a network-entry and remove the specific network-isolation-identifier at a network-exit, wherein the specific network-isolation identifier is bidirectional for traffic in a virtual WAN; transmit, by the multi-tenant controller, the plurality of policies, and a plurality of application signatures for the plurality of applications, and a plurality of application definitions for the plurality of applications to a device, wherein each of the plurality of application signatures is based on one of: (a) a size pattern of encrypted flow transactions, and (b) a frequency pattern of the encrypted flow transactions; wherein each of the plurality of application definitions is customized for the device based on a location of the device by sending the device a customized domain name for each of the plurality of applications, wherein each of the plurality of applications has a plurality of domain names; identify, by the device, a specific application out of the plurality of applications and a specific identity out of the plurality of identities for a data flow of the plurality of data flows, wherein the specific application and the specific identity are associated with the data flow, wherein the identifying includes analyzing the data flow to detect a presence of an application signature; and apply, by the device, a policy of the plurality of policies to the data flow based on the specific application and the specific identity. 16.",
"(Currently amended) The non-transitory computer-readable medium of claim 15, wherein the wide area network comprises connectivity selected from a group including hybrid, physical, and logical. 17. (Currently amended) The non-transitory computer-readable medium of claim 15, wherein each policy comprises a policy string defining a business policy applicable to traffic associated with the specific application. 18. (Currently amended) The non-transitory computer-readable medium of claim 17, wherein the policy string comprises a policy string format. 19. (Currently amended) The non-transitory computer-readable medium of claim 18, wherein the policy string format is standardized. 20. (Currently amended) Thenon-transitory computer-readable medium of claim 17, wherein traffic associated with the application is encrypted. 21-27. (Canceled) Reason for Allowance The following is an examiner’s statement of reasons for allowance: Creating isolated network segments in a wide area network (WAN) with isolated overlay tunnels wherein each of the tunnels is encrypted with different keys; inserting a bidirectional network-isolation identifier at a network-entry and removing the network-isolation identifier at a network-exit, wherein the network-isolation identifier is a virtual WAN isolation identifier; analyzing a data flow based on an application signature, wherein the application signature is based on a size pattern or a frequency pattern of encrypted flow transactions; customizing application definitions by sending a customized domain name for each application, wherein each application has a plurality of domain names.",
"The prior art of record does not disclose the limitations above in combination with the remaining elements in the independent claims. The allowable subject matter is now reflected in applicant’s independent claim 1 and similarly in independent claim 8 and 15. Dependent claims 2-7, 9-14, and 16-20 dependent from allowed claims and therefore are also allowed. 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 HANNAH S WANG whose telephone number is (571)272-9018. The examiner can normally be reached on Monday-Friday 9AM-5:30 PM 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, Umar Cheema can be reached on 571-270-3037. 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. /HANNAH S WANG/Primary Examiner, Art Unit 2454"
]
| 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 |
This action was brought jointly by the parents and widow of John Chester Shade, deceased, to recover damages for the death of said deceased, alleged to have been caused by the negligence of the defendant. The plaintiffs are the only heirs of the deceased. The jury returned a verdict for plaintiff, fixing the damages at eight thousand dollars, for which amount judgment was rendered. From the judgment and from an order denying defendant's motion for a new trial the defendant appeals. Defendant makes a number of contentions for a reversal, but under our view of the case only one of these contentions need be specially considered, — namely, that the facts show as a matter of law that the deceased was guilty of contributory negligence, which was the proximate cause of his death, and therefore defendant's motion for a new trial should have been granted, etc. We think that this contention must be sustained. With respect to the principle of contributory negligence, it is well established "that where the facts are clear and undisputed, and where no other inference than that of negligence can be drawn from them, the court is not required to submit the question to the jury, but may itself make the inference." (Studer v. SouthernPacific Co., 121 Cal. 400, [66 Am. St. Rep. 39, 53 P. 942].) In Thompson on Negligence (vol. 1, sec. 1249) the rule, supported by ample authority, is stated to be that "the traveler cannot recover if he could have avoided the accident by the exercise of reasonable care on his part." (See, also, Flemming v. WesternPacific R.R. Co., 49 Cal. 253.) In the case at bar the facts were these: At the time of the occurrences out of which this litigation arose the defendant *Page 12 was the owner of an electric-power system and carried electricity by means of poles and wires along and over the side of the American Cañon public road in Solano County. On the morning of July 4, 1904, the deceased, Chester Shade, and seven other persons were traveling in a three-seated two-horse wagon along said road, and when approaching a certain bridge they saw that a few yards on the other side of the bridge one of the electric wires of defendant's system had become detached from a pole and was hanging down over the side of the road a few feet from the ground. The wagon was stopped on or about the middle of the bridge, which was about forty-one feet long, so that when the wagon was stopped it and its occupants were about thirty feet away from the hanging wire. The deceased and one of the parties, named Hodges, got out of the wagon and went a short distance towards the hanging wire. The deceased then returned to the wagon and took from it a small rope or cord, about a quarter of an inch thick and about four feet long, and started with it towards the wire. Another party, Forbes Brown, said to him, "Don't touch the wire, Chester, whatever you do," and the deceased replied, "There is no danger of my doing that; I would not think of doing that." The deceased and Hodges then went near to the wire, which had attached to it an instrument in the form of an insulator. It does not appear to what extent this insulator was intended to be a protection to appellant's employees even when the wires were in proper position on the poles. It appears that it was not a protection against a large voltage, which sometimes passed through the wires. It appears to have been fastened to the wire on one side only, so that it was more dangerous to touch it at some points than at others. Moreover, it had been broken by the fall, and pieces of it were lying on the ground near the pole. The deceased approached the hanging wire quite closely, for he threw the end of the short cord over the insulator and fastened it there by a knot. He then reached toward Hodges for a flagpole which the latter had, and to which he intended to tie the cord, when he received a charge of electricity, which caused his death a day or two afterwards. The deceased was not a backwoodsman who had never heard of electrical plants and the danger which lurks in live wires — if, indeed, such a person could be found in California. He had been born and had always lived in the city of Vallejo, where, *Page 13 as in nearly every American city, electricity is used, was a business man, twenty-eight years old, and of good intelligence. He knew the danger of live wires, but was not an expert electrician. He had not been placed by the negligence of the appellant in a position of peril from which he must by some means extricate himself, so that he might have been excused if he had not used the best judgment in trying to avoid danger. He was in no danger whatever. It appears probable from the evidence that he and his party could have driven past without any risk, as the distance from the hanging wire to the edge of the road was, at the narrowest point, nine feet and nine inches. However, it was not necessary for them to drive past; they could have turned back, and, if they could not have reached their original destination by some other road, they could have had their picnic at some other place; and if they had suffered any serious wrong by the obstruction they could have recovered damages. They were not even tempted by any business interests to incur the danger of trying to remove the wire, nor were they impelled by any sense of duty to do so. They were traveling merely for the purpose of pleasure. Exactly how near the deceased went to the wire does not appear from the testimony of the witnesses who were present at the time. One of them testified that he could not have been closer to the wire than fourteen inches. It appears quite probable from the testimony of the expert electricians that the deceased did not receive the shock which killed him through the cord which he held in his hand; but that some part of his person or clothing came in contact with the wire, or was so close to the wire that the electricity "sparked" or "jumped" from the wire to his person. While standing so near the wire and being employed in trying to adjust the cord and pole he might readily have inadvertently moved nearer to the wire. At all events, it is clear that he unnecessarily, heedlessly, and recklessly placed himself in a most dangerous position, which resulted in his receiving the deadly shock. "No other inference than that of negligence can be drawn from" his conduct. It was careless and negligent in the extreme sense, and is fitly characterized by the old phrase "foolhardy." Our opinion is that he was guilty, as a matter of law, of contributory negligence, and that therefore the nonsuit should have been granted, and the verdict was unwarranted. *Page 14 The judgment and order appealed from are reversed. Lorigan, J., and Henshaw, J., concurred. Hearing in Bank denied. Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 19th of October, 1907: — | 07-05-2016 | [
"This action was brought jointly by the parents and widow of John Chester Shade, deceased, to recover damages for the death of said deceased, alleged to have been caused by the negligence of the defendant. The plaintiffs are the only heirs of the deceased. The jury returned a verdict for plaintiff, fixing the damages at eight thousand dollars, for which amount judgment was rendered. From the judgment and from an order denying defendant's motion for a new trial the defendant appeals. Defendant makes a number of contentions for a reversal, but under our view of the case only one of these contentions need be specially considered, — namely, that the facts show as a matter of law that the deceased was guilty of contributory negligence, which was the proximate cause of his death, and therefore defendant's motion for a new trial should have been granted, etc. We think that this contention must be sustained.",
"With respect to the principle of contributory negligence, it is well established \"that where the facts are clear and undisputed, and where no other inference than that of negligence can be drawn from them, the court is not required to submit the question to the jury, but may itself make the inference.\" (Studer v. SouthernPacific Co., 121 Cal. 400, [66 Am. St. Rep. 39, 53 P. 942].) In Thompson on Negligence (vol. 1, sec. 1249) the rule, supported by ample authority, is stated to be that \"the traveler cannot recover if he could have avoided the accident by the exercise of reasonable care on his part.\"",
"(See, also, Flemming v. WesternPacific R.R. Co., 49 Cal. 253.) In the case at bar the facts were these: At the time of the occurrences out of which this litigation arose the defendant *Page 12 was the owner of an electric-power system and carried electricity by means of poles and wires along and over the side of the American Cañon public road in Solano County. On the morning of July 4, 1904, the deceased, Chester Shade, and seven other persons were traveling in a three-seated two-horse wagon along said road, and when approaching a certain bridge they saw that a few yards on the other side of the bridge one of the electric wires of defendant's system had become detached from a pole and was hanging down over the side of the road a few feet from the ground. The wagon was stopped on or about the middle of the bridge, which was about forty-one feet long, so that when the wagon was stopped it and its occupants were about thirty feet away from the hanging wire. The deceased and one of the parties, named Hodges, got out of the wagon and went a short distance towards the hanging wire. The deceased then returned to the wagon and took from it a small rope or cord, about a quarter of an inch thick and about four feet long, and started with it towards the wire.",
"Another party, Forbes Brown, said to him, \"Don't touch the wire, Chester, whatever you do,\" and the deceased replied, \"There is no danger of my doing that; I would not think of doing that.\" The deceased and Hodges then went near to the wire, which had attached to it an instrument in the form of an insulator. It does not appear to what extent this insulator was intended to be a protection to appellant's employees even when the wires were in proper position on the poles. It appears that it was not a protection against a large voltage, which sometimes passed through the wires. It appears to have been fastened to the wire on one side only, so that it was more dangerous to touch it at some points than at others. Moreover, it had been broken by the fall, and pieces of it were lying on the ground near the pole.",
"The deceased approached the hanging wire quite closely, for he threw the end of the short cord over the insulator and fastened it there by a knot. He then reached toward Hodges for a flagpole which the latter had, and to which he intended to tie the cord, when he received a charge of electricity, which caused his death a day or two afterwards. The deceased was not a backwoodsman who had never heard of electrical plants and the danger which lurks in live wires — if, indeed, such a person could be found in California. He had been born and had always lived in the city of Vallejo, where, *Page 13 as in nearly every American city, electricity is used, was a business man, twenty-eight years old, and of good intelligence. He knew the danger of live wires, but was not an expert electrician. He had not been placed by the negligence of the appellant in a position of peril from which he must by some means extricate himself, so that he might have been excused if he had not used the best judgment in trying to avoid danger. He was in no danger whatever. It appears probable from the evidence that he and his party could have driven past without any risk, as the distance from the hanging wire to the edge of the road was, at the narrowest point, nine feet and nine inches. However, it was not necessary for them to drive past; they could have turned back, and, if they could not have reached their original destination by some other road, they could have had their picnic at some other place; and if they had suffered any serious wrong by the obstruction they could have recovered damages.",
"They were not even tempted by any business interests to incur the danger of trying to remove the wire, nor were they impelled by any sense of duty to do so. They were traveling merely for the purpose of pleasure. Exactly how near the deceased went to the wire does not appear from the testimony of the witnesses who were present at the time. One of them testified that he could not have been closer to the wire than fourteen inches. It appears quite probable from the testimony of the expert electricians that the deceased did not receive the shock which killed him through the cord which he held in his hand; but that some part of his person or clothing came in contact with the wire, or was so close to the wire that the electricity \"sparked\" or \"jumped\" from the wire to his person. While standing so near the wire and being employed in trying to adjust the cord and pole he might readily have inadvertently moved nearer to the wire.",
"At all events, it is clear that he unnecessarily, heedlessly, and recklessly placed himself in a most dangerous position, which resulted in his receiving the deadly shock. \"No other inference than that of negligence can be drawn from\" his conduct. It was careless and negligent in the extreme sense, and is fitly characterized by the old phrase \"foolhardy.\" Our opinion is that he was guilty, as a matter of law, of contributory negligence, and that therefore the nonsuit should have been granted, and the verdict was unwarranted. *Page 14 The judgment and order appealed from are reversed.",
"Lorigan, J., and Henshaw, J., concurred. Hearing in Bank denied. Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 19th of October, 1907: —"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3300447/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.16
PARKWAY, INC.
AND PARKWAY OPERATING PARTNERSHIP LP
2016 OMNIBUS EQUITY INCENTIVE PLAN
1. Introduction.
Parkway, Inc., a Maryland real estate investment trust (and its successors, the “Company”), established this Parkway, Inc. and Parkway Operating Partnership LP 2016 Omnibus Equity Incentive Plan (as it may be amended from time to time, the “Plan”), effective as of immediately prior to the Distribution (as defined below).
2. Purpose.
The purposes of the Plan are to promote the growth and success of the Company and Parkway Operating Partnership LP (the “Partnership”) by aligning the interests of Employees, Directors, and Consultants with those of the Company’s shareholders and to attract, retain, and reward Employees, Directors, and Consultants. To serve these purposes, the Plan offers equity-based incentive awards.
3. Definitions.
As used in this Plan:
(a) “Assumed Shares” shall have the meaning set forth in Section 5(a).
(b) “Award” shall mean a grant under the Plan of Options (either Incentive Stock Options or Nonstatutory Stock Options), Stock Appreciation Rights, Restricted Shares, Restricted Share Units, Profits Interest Units, Dividend Equivalents, other Share-based awards (as described in Section 12), or cash.
(c) “Award Agreement” shall mean a written agreement entered into between the Company and a Participant or other documentation issued by the Company, in either case setting forth the terms and conditions applicable to an Award granted under the Plan. An Award Agreement shall be subject to the terms of the Plan.
(d) “Board of Directors” or “Board” shall mean the Board of Directors of the Company.
(e) “Cause” shall mean, with respect to a Participant, unless otherwise provided in an applicable agreement between such Participant and the Company, the Partnership, or a Subsidiary, (i) the Participant’s continued failure to perform material responsibilities and duties toward the Company (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness); (ii) the Participant’s engaging in willful or reckless conduct that is demonstrably injurious to the Company monetarily or otherwise; (iii) the Participant’s conviction of, or pleading guilty or nolo contendere to, a felony; or (iv) the Participant’s commission or omission of any act that is materially inimical to the best interests of the Company and that constitutes on the part of the Participant common law fraud or malfeasance, misfeasance, or
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nonfeasance of duty; provided, however, that Cause shall not include the Participant’s lack of professional qualifications. For purposes of this Plan, an act, or failure to act, on the Participant’s part shall be considered “willful” or “reckless” only if done, or omitted, by the Participant not in good faith and without reasonable belief that the action or omission was in the best interest of the Company.
(f) “Change in Control” of the Company shall mean and shall be deemed to have occurred if (i) any Person is or becomes a beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing forty-five percent (45%) or more of the combined voting power of the Company’s then outstanding securities; or (ii) the Company closes on a merger or consolidation with any other Person, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately before the merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of such surviving entity) more than fifty-five percent (55%) of the combined voting power of the voting securities of the Company or of such surviving entity outstanding immediately after such merger or consolidation; or (iii) the Company closes on an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or (iv) there has been a change in fifty percent (50%) or more of the voting power of the members of the Board in any rolling twelve (12)-month period, provided that any new directors whose election by the Board or whose nomination by the Board for election by the shareholders of the Company was approved by a vote of at least a majority of the members of the Board shall not constitute a change in voting power of the members of the Board.
(g) “Change in Control Treatment” shall have the meaning set forth in Section 15(b).
(h) “Committee” shall mean a committee of the Board of Directors of the Company, which committee shall be composed of those members of the Compensation Committee of the Board of Directors who are (i) non-employee directors, as that term is defined in Rule 16b-3 under the Exchange Act, (ii) outside directors, as that term is defined for the purposes of Internal Revenue Code section 162(m), and (iii) for so long as the Shares are listed on the New York Stock Exchange, independent directors, as that term is defined in Section 303A of the New York Stock Exchange Listed Company Manual; provided that, should there be fewer than two (2) members of the Compensation Committee who are non-employee directors, outside directors, and independent directors, the Committee shall be composed of two (2) or more members of the Board of Directors designated by the Board who are non-employee directors, outside directors, and independent directors, including anyone who is a member of the Compensation Committee.
(i) “Common Shares” or “Shares” shall mean the shares of common stock, par value $0.001 per share, of the Company, or such other securities or property as may become subject to Awards pursuant to an adjustment made under Section 14.
(j) “Consultant” shall mean any consultant or advisor of the Company, the Partnership, or any Subsidiary who qualifies as a consultant or advisor under the applicable rules of the Form S-8 Registration Statement.
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(k) “Cousins” shall mean Cousins Properties Incorporated, a Georgia corporation.
(l) “Director” shall mean a member of the Board of Directors of the Company.
(m) “Distribution” shall mean the distribution by Cousins to the shareholders of Cousins (which includes the legacy shareholders of Legacy Parkway) of all of the outstanding Common Shares of the Company owned by Cousins pursuant to the Separation and Distribution Agreement.
(n) “Dividend Equivalent” shall mean a right to receive the equivalent value (in cash or Shares) of dividends paid on Shares, awarded under Section 12(b) hereof.
(o) “Effective Date” shall have the meaning of the “Distribution Date,” as it is defined in the Separation and Distribution Agreement.
(p) “Employee” shall mean, for Awards other than Incentive Stock Options, an employee of the Company, the Partnership, or a Subsidiary, and for Incentive Stock Options, an employee of the Company or a subsidiary (within the meaning of Code section 424).
(q) “Employee Matters Agreement” shall mean that certain Employee Matters Agreement, by and between Cousins Properties Incorporated, Cousins Properties LP, Clinic Sub, Inc., Parkway Properties, Inc., Parkway Properties LP, Parkway Properties General Partners, Inc., the Company, and the Partnership, dated as of October 5, 2016.
(r) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor thereto.
(s) “Fair Market Value” of a Common Share shall mean, on a given date:
(i) If the Common Shares are (A) listed on any established securities exchange (such as the New York Stock Exchange, the NASDAQ Global Market, and the NASDAQ Global Select Market), (B) listed on any national market system, or (C) listed, quoted, or traded on any automated quotation system, the Fair Market Value shall be the closing sales price for a Share as quoted on such exchange or system for such date or, if there is no closing sales price for a Share on the date in question, the closing sales price for a Share on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the Committee deems reliable;
(ii) If the Common Shares are not listed on an established securities exchange, national market system, or automated quotation system, but the Common Shares are regularly quoted by a recognized securities dealer, the Fair Market Value shall be the average of the mean of the high bid and low asked prices for such date or, if there are no high bid and low asked prices for a Share on such date, the high bid and low asked prices for a Share on the last preceding date for which such information exists, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
(iii) If the Common Shares are neither listed on an established securities exchange, national market system, or automated quotation system nor regularly quoted by a
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recognized securities dealer, the Fair Market Value shall be established by the Committee in good faith by the reasonable application of a reasonable valuation method, in a manner consistent with Code section 409A.
(t) “Family Member” shall mean, with respect to any Participant as of any date of determination, (i) a person who is a spouse, former spouse, child, stepchild, grandchild, parent, stepparent, grandparent, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister, brother-in-law, or sister-in-law, including adoptive relationships, of the Participant; (ii) any person sharing the Participant’s household (other than a tenant or employee); (iii) a trust in which any one or more of the persons specified in clauses (i) and (ii) above (and such Participant) own more than fifty percent (50%) of the beneficial interest; (iv) a foundation in which any one or more of the persons specified in clauses (i) and (ii) above (and such Participant) control the management of assets; and (v) any other entity in which one or more of the persons specified in clauses (i) and (ii) above (and such Participant) own more than fifty percent (50%) of the voting interests.
(u) “Good Reason” shall mean, with respect to a Participant, unless otherwise provided in an applicable agreement between such Participant and the Company, the Partnership, or a Subsidiary, the occurrence of any of the following:
(i) the material diminution, following a Change in Control, of the Participant’s authority, duties, or responsibilities;
(ii) a material diminution by the Company in the Participant’s base salary in effect immediately before a Change in Control; or
(iii) a change of the Participant’s principal place of employment to a location more than fifty (50) miles from such principal place of employment as of immediately before a Change in Control, except for required travel on the Company’s business to an extent substantially consistent with the business travel obligations which the Participant undertook on behalf of the Company as of immediately before a Change in Control.
A termination for Good Reason must be communicated by the Participant to the Company by written notice that specifies the event or events claimed to provide a basis for termination for Good Reason; provided that the Participant’s written notice must be tendered within ninety (90) days of the first occurrence of such event or events and provided further that the Company shall have failed to remedy such act or omission within thirty (30) days following its receipt of such notice and the Participant actually terminates Service within fourteen (14) days after the Company’s failure to timely remedy such act or omission.
(v) “Incentive Stock Option” or “ISO” shall mean an incentive stock option as defined in Internal Revenue Code section 422.
(w) “Internal Revenue Code” or “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto, and any regulations promulgated thereunder.
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(x) “Legacy Parkway” shall mean Parkway Properties, Inc., a Maryland real estate investment trust.
(y) “Legacy Parkway Equity Plan” shall mean the Parkway Properties, Inc. and Parkway Properties LP 2015 Omnibus Equity Incentive Plan, as amended, and any successor thereto.
(z) “Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated as of April 28, 2016, by and among Legacy Parkway, Parkway Properties LP, Cousins, and Clinic Sub Inc.
(aa) “Misconduct” shall mean conduct of a Participant that, in the Committee’s judgment, constitutes:
(i) a commission of an act of theft, embezzlement, fraud, dishonesty, or other criminal act, harmful to the Company, the Partnership, or a Subsidiary,
(ii) a breach of a fiduciary duty owed to the Company, the Partnership, or a Subsidiary,
(iii) a deliberate and serious disregard of rules of the Company, the Partnership, or a Subsidiary,
(iv) an unauthorized disclosure of any of the trade secrets or confidential information of the Company, the Partnership, or a Subsidiary,
(v) competition with the Company, the Partnership, or a Subsidiary, or
(vi) “cause” as defined in any other agreement between the Company, the Partnership, or a Subsidiary, on the one hand, and such Participant, on the other hand.
(bb) “New Shares” shall have the meaning set forth in Section 5(a).
(cc) “Non-Employee Director” shall mean a Director who is not also an Employee.
(dd) “Non-Employee Director Compensation Policy” shall have the meaning set forth in Section 13.
(ee) “Nonstatutory Stock Option” shall mean an Option that is not an Incentive Stock Option.
(ff) “Option” shall mean an option awarded pursuant to Section 8 to purchase a Common Share and may refer to an Incentive Stock Option or a Nonstatutory Stock Option.
(gg) “Participant” shall mean an Employee, Director, or Consultant who holds an outstanding Award under the Plan.
(hh) “Partnership Agreement” shall mean the Agreement of Limited Partnership of Parkway Operating Partnership LP, as amended from time to time.
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(ii) “Performance Goal” shall mean an objective test of performance based on one or more of the following criteria: (i) revenue; (ii) earnings; (iii) net earnings; (iv) operating earnings; (v) earnings before taxes; (vi) earnings before income tax expense, interest expense, and depreciation and amortization expense (EBITDA); (vii) earnings per Share; (viii) stock price; (ix) costs; (x) return on equity; (xi) return on assets; (xii) assets management; (xiii) asset quality; (xiv) asset growth; (xv) budget achievement; (xvi) net operating income (NOI); (xvii) average occupancy; (xviii) year-end occupancy; (xix) funds from operations (FFO); (xx) adjusted funds from operations (AFFO); (xxi) funds available for distribution (FAD); (xxii) dividend or FAD payment; (xxiii) total shareholder return on an absolute basis or a relative basis measured against comparable peers or a real estate index; (xxiv) leverage ratios; (xxv) capital expenditures; (xxvi) customer satisfaction survey results; (xxvii) property operating expense savings; (xxviii) design, development, permitting, or other progress on designated properties; (xxix) third-party fee generation; (xxx) leasing goals; (xxxi) goals relating to mergers and acquisitions or divestitures, targeted financing, or capital market objectives; (xxxii) lease retention; (xxxiii) liability management; (xxxiv) credit management; (xxxv) certain levels of operating expense; (xxxvi) growth in assets, unit volume, revenue, sales, or market share; or (xxxvii) strategic business criteria consisting of one or more objectives based on meeting specified revenue goals, market penetration goals, geographic business expansion goals, or cost targets. Performance Goals may differ from Participant to Participant and Award to Award and may be established for the Company as a whole, on a per Share basis, or for the Company’s various properties, groups, divisions, or Subsidiaries, or the Partnership, or a combination of them. Performance Goals may be based on absolute performance or on performance relative to performance of unrelated businesses specified by the Committee, on other external measures of the selected performance criteria, or on comparison to any prior period or to budget or target. All calculations and financial accounting matters relevant to this Plan and to which generally accepted accounting principles (GAAP) apply shall be determined in accordance with GAAP as in effect on the date of an Award, except as otherwise specified by the Committee. For example, the Committee may specify that the measurement of performance shall include or exclude particular items, such as losses from discontinued operations, debt prepayment penalties, extraordinary gains or losses, the cumulative effect of accounting changes, acquisitions or divestitures, or nonrecurring gains or losses.
(jj) “Performance Period” shall mean, with respect to an Award that vests based upon the attainment of Performance Goals or other performance-based objectives, the period of time, up to ten (10) years, during or over which the Performance Goals or other performance-based objectives applicable to such Award must be met in order to determine the degree of payout and/or vesting with respect to such Award.
(kk) “Person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a trust, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof; provided that, for purposes of Section 3(e)(i), Person shall have the meaning set forth in Sections 13(d) and 14(d)(2) of the Exchange Act.
(ll) “Permanent Disability” shall mean a medically determinable physical or mental impairment that may be expected to result in death or to last at least a year and that renders a Participant incapable of performing that Participant’s duties with the Company. A determination
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of Permanent Disability shall be made by the Committee in a uniform, nondiscriminatory manner on the basis of medical evidence. Notwithstanding the foregoing, in the case of a determination that would accelerate payment of Restricted Share Units or other Awards or amounts that are deferred compensation subject to Code section 409A, a Participant shall be considered to have a Permanent Disability only if the Participant is “disabled” within the meaning of Code section 409A or the regulations issued under that section.
(mm) “Profits Interest Unit” or “LTIP Unit” shall mean, to the extent authorized by the Partnership Agreement (as either a “Profits Interest Unit” or an “LTIP Unit”), a unit of the Partnership that is granted pursuant to Section 12(c) and is intended to constitute a “profits interest” within the meaning of the Code.
(nn) “Restricted Period” shall mean the period described in Section 10(b)(i) or Section 11(b)(i).
(oo) “Restricted Share” shall mean an Award granted pursuant to Section 10.
(pp) “Restricted Share Unit” or “RSU” shall mean an Award granted pursuant to Section 11.
(qq) “Separation and Distribution Agreement” shall mean that certain Separation and Distribution Agreement, by and between Cousins Properties Incorporated, Cousins Properties LP, Clinic Sub Inc., Parkway Properties, Inc., Parkway Properties LP, Parkway Properties General Partners, Inc., Parkway, Inc., and Parkway Operating Partnership LP, dated as of October 5, 2016.
(rr) “Service” shall mean service as an Employee, Director, or Consultant to the Company, the Partnership, or a Subsidiary. Unless otherwise stated in the applicable Award Agreement, a Participant’s change in position or duties shall not result in interrupted or terminated Service, so long as such Participant continues to be an Employee, a Director, or a Consultant to the Company, the Partnership, or a Subsidiary. Subject to the preceding sentence, whether a termination of Service shall have occurred for purposes of the Plan shall be determined by the Committee, which determination shall be final, binding, and conclusive.
(ss) “Share Limit” shall have the meaning set forth in Section 5(a).
(tt) “Stock Appreciation Right” or “SAR” shall mean an Award granted pursuant to Section 9.
(uu) “Subsidiary” shall mean a corporation, partnership, joint venture, or other entity in which the Company has an equity, profit, or voting interest of at least fifty percent (50%).
4. Administration.
The Committee shall administer the Plan. The Committee shall have all the powers vested in it by the terms of the Plan. The Committee shall have full authority to interpret the Plan and Award Agreements; to prescribe, amend, and rescind rules and regulations relating to the Plan; and to make any determinations it finds necessary or advisable for the administration of
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the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award Agreement in the manner and to the extent the Committee deems desirable. Any decision of the Committee in the administration and interpretation of the Plan shall be in its sole discretion and shall be final, binding, and conclusive on all Persons. The Committee may act only by a majority of its members in office, except that:
(a) The Committee may authorize any one or more of its members or any officer of the Company to execute and deliver documents on behalf of the Committee.
(b) The Committee may delegate ministerial duties and authority to interpret the Plan and respond to claims to a Vice President, Senior Vice President, or Executive Vice President, provided that the Committee may not delegate authority to (i) grant or amend Awards that are (A) held by individuals who are subject to Section 16 of the Exchange Act, (B) intended to qualify for the performance-based pay exception under Code section 162(m), or (C) held by officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated, or (ii) with respect to the certification of the satisfaction of Performance Goals.
No Committee member and no delegate of the Committee shall be liable for any determination made in good faith with respect to the Plan, an Award, or a Participant.
5. Shares Subject to Plan and Limits on Awards.
(a) Shares Available. Subject to adjustment pursuant to Section 14, the maximum number of Common Shares with respect to which Awards may be granted under the Plan shall be equal to the sum of (i) five million (5,000,000) Common Shares (the “New Shares”), plus (ii) the number of Common Shares issuable pursuant to Awards resulting from awards originally granted under the Legacy Parkway Equity Plan that were outstanding immediately prior to the Distribution, converted into awards with respect to shares of Cousins’ common stock pursuant to the Merger Agreement and further converted into Awards pursuant to and as described in the Separation and Distribution Agreement and the Employee Matters Agreement (the “Assumed Shares,” together with the New Shares, the “Share Limit”). Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Common Shares or Common Shares purchased on the open market.
(b) Limits on Awards. Subject to adjustment pursuant to Section 14, the following additional limits shall apply to Awards under the Plan:
(i) The maximum aggregate number of Common Shares that may be issued pursuant to Incentive Stock Options, other than Incentive Stock Options with respect to the Assumed Shares, granted under the Plan is five hundred thousand (500,000).
(ii) The maximum number of Common Shares that may be made subject to Options or SARs, other than Awards with respect to the Assumed Shares, granted under the Plan to any Participant (other than a Non-Employee Director) during any one calendar year is five hundred thousand (500,000).
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(iii) The maximum number of Common Shares that may be made subject to Awards, other than Options or SARs and other than Awards with respect to the Assumed Shares, granted under the Plan that are Share-denominated and are either Share- or cash-settled to any Participant (other than a Non-Employee Director) during any one calendar year is one million (1,000,000).
(iv) The maximum amount that may be paid as a cash-denominated Award (whether or not cash-settled) that vests based on the attainment of Performance Goals or other performance-based objectives for a Performance Period of twelve (12) months or less to any Participant (other than a Non-Employee Director) shall be five million dollars ($5,000,000), and the maximum amount that may be paid as a cash-denominated Award (whether or not cash-settled) that vests based on the attainment of Performance Goals or other performance-based objectives for a Performance Period of greater than twelve (12) months to any Participant (other than a Non-Employee Director) shall be ten million dollars ($10,000,000).
(c) Share Usage. Shares subject to an Award shall be counted as used for purposes of the Share Limit as of the date of grant. With respect to SARs, the number of Shares subject to an Award of SARs will be counted against the aggregate number of Common Shares available for issuance under the Plan in settlement of Options and Stock Appreciation Rights regardless of the number of Shares actually issued to settle the SAR upon exercise. The target number of Shares issuable under an Award that vests based upon the attainment of Performance Goals or other performance-based objectives shall be counted against the aggregate number of Common Shares available for issuance under the Plan as of the date of grant, but such number shall be adjusted to equal the actual number of Shares issued upon settlement of such Award to the extent different from such target number of Shares. If any Shares subject to an Award are forfeited or expire or such Award is settled for cash (in whole or in part), the Shares subject to such Award shall, to the extent of such forfeiture, expiration, or cash settlement, again be available for future grants of Awards under the Plan. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Share Limit and shall not be available for future grants of Awards: (i) Shares tendered by a Participant or withheld by the Company in payment of the exercise price of an Option; (ii) Shares tendered by a Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Option or a Stock Appreciation Right; (iii) Shares subject to a Stock Appreciation Right that are not issued in connection with the Share-settlement of the Stock Appreciation Right on exercise thereof; and (iv) Shares purchased on the open market with the cash proceeds from the exercise of Options. Any Shares repurchased by the Company at the same price paid by the Participant, so that such Shares are returned to the Company, shall again be available for future grants of Awards. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not be counted against the Shares available for issuance under the Plan. Notwithstanding the provisions of this Section 5(c), no Shares may again be optioned, granted, or awarded if such action would cause an ISO to fail to qualify as an incentive stock option under section 422 of the Code.
6. Eligibility.
Employees, Directors, and Consultants shall be eligible to receive Awards under the Plan, provided that no Employee, Director, or Consultant shall be entitled to an Award except as determined by the Committee or as provided by any Non-Employee Director Compensation Policy described in Section 13.
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7. Awards.
(a) Award Agreements. The Committee shall set forth the terms of each Award in an Award Agreement. An Award Agreement may contain any provision approved by the Committee, subject to the terms of the Plan. An Award Agreement may make provision for any matter that is within the discretion of the Committee or may reserve for the Committee discretion to approve or authorize any action with respect to the Award.
(b) Nonuniform Determinations. The Committee’s determinations under the Plan or Award Agreements, including, without limitation, the selection of Participants to receive Awards; the type, form, amount, and timing of Awards; and the terms of specific Award Agreements, need not be uniform, regardless of whether Participants are similarly situated.
(c) Qualification for Section 162(m) Exception.
(i) Committee’s Certification of Satisfaction of Performance Goals. If the exercisability, payment, or vesting of an Award is conditioned upon the satisfaction of Performance Goals, and the Award is intended to qualify for the exception under Code section 162(m) for performance-based pay, the condition shall not be considered satisfied, and the Award shall not be exercisable, payable, or vest, as applicable, unless the Committee certifies that the Performance Goal has been satisfied.
(ii) Satisfaction of Other Requirements. To the extent an Award is intended to qualify for the exception under Code section 162(m) for performance-based pay, the Committee shall make such provisions in Award Agreements and follow such procedures as may be required to satisfy the conditions of the exception. By way of example, the Committee shall establish any Performance Goal associated with such an Award by the time within the Performance Period required for such exception, and the payment terms for such an Award shall conform to the requirements of the exception.
(d) Discretion. The Committee shall have no discretion to increase the amount of an outstanding Award but may reserve discretion to decrease the amount of an outstanding Award or the extent to which it is exercisable or payable.
(e) Provisions Governing All Awards. All Awards will be subject to the following provisions:
(i) Transferability. Except for transfers pursuant to Section 8(b)(vi) or Section 9(b)(v), an Award shall not be transferable, other than by will or the laws of descent and distribution. Awards requiring exercise shall be exercisable during the lifetime of a Participant only by the Participant or, in the event the Participant becomes legally incompetent, by the Participant’s guardian or legal representative.
(ii) Continued Service Rights. Neither the adoption of the Plan nor the grant of an Award shall confer on a Participant the right to continued Service with the Company, the Partnership, or a Subsidiary, nor shall it interfere with the right of the Company, the Partnership, or a Subsidiary to terminate a Participant’s Service at any time for any reason, with or without Cause.
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(f) Prohibition on Repricing of Options and Stock Appreciation Rights. Except for adjustments pursuant to Section 14, the exercise price of an Option or a Stock Appreciation Right may not be repriced. For purposes of this Section 7(f), repricing means any of the following or any other action that has the same effect:
(i) reduction of the exercise price after the grant of the Option or Stock Appreciation Right;
(ii) any other action that is treated as a repricing under generally accepted accounting principles; or
(iii) cancellation of an Option or Stock Appreciation Right when its exercise price exceeds the Fair Market Value of the underlying Common Shares, in exchange for cash or another Option, Stock Appreciation Right, or other Award, unless the cancellation and exchange occur in connection with a merger, acquisition, spin-off, or other similar corporate transaction.
(g) Misconduct. Should the Committee determine that a Participant has committed Misconduct, then the Participant shall forfeit all rights under outstanding Awards and all further benefits under or attributable to the Plan, so neither the Participant nor his estate, successors, or beneficiaries shall be entitled to exercise outstanding Options and Stock Appreciation Rights; become vested in Restricted Shares, Restricted Share Units, Profits Interest Units, Dividend Equivalents, or other Awards; be paid any Shares or amounts remaining to be paid upon settlement of an Award or due under a deferred payment arrangement with respect to an Award; or otherwise be entitled to any further benefit under or attributable to the Plan, any Award, or any Award Agreement. Before making such a determination, the Committee shall give the Participant a reasonable opportunity to be heard.
(h) Recoupment of Awards.
(i) The Committee may provide in an Award Agreement or in a policy applicable to an Award under this Plan that, under conditions specified in the Award Agreement or policy, the Participant shall forfeit all rights under the Award and all further benefits under or attributable to the Award or the Plan, and the Participant shall be obliged to pay back or return to the Company amounts or Shares previously paid, distributed, or vested under the Award, including dividends and Dividend Equivalents. Such conditions may include, by way of illustration and not by way of limitation, the occurrence of an error in financial statements that results in the payment of a greater amount of performance-based compensation than would have been paid based on correct financial statements.
(ii) All Awards (including any proceeds, gains, or other economic benefit actually or constructively received by the Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the provisions of any claw-back policy implemented by the Company, including without limitation, any claw-back policy adopted to comply with the requirements of applicable law, including
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without limitation the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder, to the extent set forth in such claw-back policy and/or in the applicable Award Agreement.
(iii) This Section 7(h) and Section 7(g) shall be construed independently of each other; one shall not limit the application of the other.
(i) Share Issuance/Book Entry. Notwithstanding any provision of the Plan to the contrary, the ownership of the Common Shares issued under the Plan may be evidenced in such a manner as the Committee, in its discretion, deems appropriate, including, without limitation, book-entry or direct registration or the issuance of one or more certificates.
8. Options.
(a) Option Grants. The Company shall grant Options to Participants under the Plan in such number, upon such terms, and at such times as the Committee shall determine.
(b) Terms of Options. The Award Agreement for an Option shall set forth such terms and conditions as the Committee shall determine and as are consistent with the Plan, including the following:
(i) Exercise Price. The Committee shall determine the exercise price of each Common Share subject to an Option, which exercise price shall not be less than the Fair Market Value of a Common Share on the date the Option is granted; provided, however, that the Committee may designate an exercise price less than the Fair Market Value of a Common Share on the date of grant if the Option is granted upon assumption of, in substitution for, a stock option in connection with the Distribution or previously granted by an entity that is acquired by or merged with the Company or an affiliate.
(ii) Exercise Period. An Option may be exercised in whole or in part from time to time during such period as the Award Agreement shall specify, provided that no Option shall be exercisable more than ten (10) years after the date of the grant of the Option.
(iii) Payment of Price. The exercise price of each Share as to which an Option is exercised must be paid in full at the time of exercise. The Committee may, in its discretion, provide in an Award Agreement that payment of the exercise may be made:
(A) in cash;
(B) by tender of Common Shares owned by the Participant valued at Fair Market Value as of the date of exercise;
(C) in Common Shares otherwise issuable to the Participant upon exercise of the Option valued at Fair Market Value as of the date of exercise (“net exercise”);
(D) in such other form of consideration as the Committee deems appropriate; or
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(E) in a combination of cash, Shares (whether then owned or issuable on exercise), and such other consideration as the Committee deems appropriate.
(iv) Conditions on Exercise. An Option shall be exercisable at such times and subject to such restrictions and conditions as the Committee shall determine. The Committee may in its discretion accelerate or waive any condition applicable to the exercise of an Option.
(v) Termination of Service. The Award Agreement shall specify whether and, if so, the extent to which an Option shall remain exercisable after the termination of the Participant’s Service, whether by death or otherwise, provided that nothing in this Section 8(b)(v) shall authorize the exercise of an Option later than ten (10) years after the date of the grant of the Option.
(vi) Family Transfers. The Committee may, in the original Award Agreement or an amendment thereto, specify that a Participant may transfer, not for value, all or part of a Nonstatutory Stock Option to any Family Member. For the purpose of this Section 8(b)(vi), a “not for value” transfer is a transfer which is (A) a gift; (B) a transfer under a domestic relations order in settlement of marital property rights; or (C) unless applicable laws do not permit such transfer, a transfer to an entity in which more than fifty percent (50%) of the voting interests are owned by Family Members (and/or the Participant) in exchange for an interest in such entity. Following a transfer under this Section 8(b)(vi), any such Nonstatutory Stock Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to such transfer (including without limitation the provisions of Section 8(b)(v) relating to termination of Service as applied with respect to the original Participant), and Shares acquired pursuant to the Nonstatutory Stock Option shall be subject to the same restrictions with respect to transfer of such Shares as would have applied to the Participant. Subsequent transfers of transferred Nonstatutory Stock Options shall be prohibited except to Family Members of the original Participant in accordance with this Section 8(b)(vi) or by will or the laws of descent and distribution.
(vii) No Voting or Dividend Rights. An Option shall carry with it no voting or dividend or other rights associated with Common Share ownership until the Shares subject thereto are fully paid and issued to such Participant or other Person. In addition, no Dividend Equivalents shall be payable with respect to Options.
(viii) Incentive Stock Option or Nonstatutory Stock Option. The Award Agreement for an Option granted to an Employee shall state whether any part of the Option is intended to be an Incentive Stock Option.
(c) Additional Terms of Incentive Stock Options. An Incentive Stock Option may be granted only to an Employee of the Company or a subsidiary (within the meaning of Code section 424) and shall be subject to the following additional terms and conditions:
(i) 10 Percent Shareholder. The exercise price of each Common Share subject to an Incentive Stock Option granted to an Employee who, at the time the Option is granted, owns (directly and within the meaning of Code section 424(d)) Shares possessing more than ten percent (10%) of the combined voting power of all classes of Shares of the Company,
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shall not be less than one hundred ten percent (110%) of the Fair Market Value of a Share on the date the Option is granted, and the Option shall not be exercisable more than five (5) years after the date of grant.
(ii) ISO Limit. To the extent the aggregate Fair Market Value (determined as of the date an Option is granted) of the Common Shares for which an Employee is granted Options designated as Incentive Stock Options first exercisable in any calendar year (under this Plan and under all plans of the Company and its Subsidiaries) exceeds one hundred thousand dollars ($100,000), the Option or the lesser excess part shall be treated as a Nonstatutory Stock Option.
(iii) Disqualified Disposition. If a Participant disposes of Common Shares acquired pursuant to the exercise of an Incentive Stock Option in a disqualifying disposition within the time periods identified in Code section 422, the Participant shall notify the Company of such disposition and provide the Company with information as to the date of disposition, sales price, number of Shares involved, and any other information about the disposition that the Company may reasonably request.
9. Stock Appreciation Rights.
(a) Grant of Stock Appreciation Rights. A Stock Appreciation Right shall entitle a Participant to receive from the Company, on the exercise date of the SAR, with respect to each Share for which the SAR is exercised, an amount equal to any excess of the Fair Market Value of a Share on the exercise date over the exercise price of the SAR. The Company shall grant SARs to Participants under the Plan in such number, upon such terms, and at such times as the Committee shall determine.
(b) Terms of Stock Appreciation Rights. The Award Agreement for a Stock Appreciation Right shall set forth such terms and conditions as the Committee shall determine and as are consistent with the provisions of the Plan, including the following:
(i) Exercise Price. The Committee shall determine the exercise price of each Common Share subject to the Stock Appreciation Right, which price shall not be less than the Fair Market Value of a Common Share on the date the SAR is granted; provided, however, that the Committee may designate an exercise price less than the Fair Market Value of a Common Share on the date of grant if the SAR is granted upon assumption of, or in substitution for, a stock appreciation right in connection with the Distribution or previously granted by an entity that is acquired by or merged with the Company or an affiliate.
(ii) Exercise Period. A Stock Appreciation Right may be exercised in whole or in part from time to time during such period as the Award Agreement shall specify, provided that no SAR shall be exercisable more than ten (10) years after the date of the grant of the SAR.
(iii) Conditions on Exercise. A Stock Appreciation Right shall be exercisable at such times and subject to such restrictions and conditions as the Committee shall determine. The Committee may in its discretion accelerate or waive any condition applicable to the exercise of a SAR.
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(iv) Termination of Service. The Award Agreement shall specify whether and, if so, the extent to which a Stock Appreciation Right shall remain exercisable after the termination of the Participant’s Service, whether by death or otherwise, provided that nothing in this Section 9(b)(iv) shall authorize the exercise of a SAR later than ten (10) years after the date of the grant of the SAR.
(v) Family Transfers. The Committee may, in the original Award Agreement or an amendment thereto, specify that a Participant may transfer, not for value, all or part of a Stock Appreciation Right to any Family Member. For the purpose of this Section 9(b)(v), a “not for value” transfer is a transfer which is (A) a gift; (B) a transfer under a domestic relations order in settlement of marital property rights; or (C) unless applicable laws do not permit such transfer, a transfer to an entity in which more than fifty percent (50%) of the voting interests are owned by Family Members (and/or the Participant) in exchange for an interest in such entity. Following a transfer under this Section 9(b)(v), any such SAR shall continue to be subject to the same terms and conditions as were applicable immediately prior to such transfer (including without limitation the provisions of Section 9(b)(iv) relating to termination of Service as applied with respect to the original Participant), and Shares acquired pursuant to the SAR shall be subject to the same restrictions with respect to transfer of such Shares as would have applied to the Participant. Subsequent transfers of transferred SARs shall be prohibited except to Family Members of the original Participant in accordance with this Section 9(b)(v) or by will or the laws of descent and distribution.
(vi) No Voting or Dividend Rights. A SAR shall carry with it no voting or dividend or other rights associated with Common Share ownership until, if the SAR is fully or partially settled in Shares pursuant to Section 9(c), the Shares subject thereto are fully issued to such Participant or other Person. In addition, no Dividend Equivalents shall be payable with respect to SARs.
(c) Settlement of Stock Appreciation Rights. On the exercise date of a Stock Appreciation Right, the Company shall settle the SAR, to the extent exercised, by payment of the amount due in the form of cash, Common Shares valued at their Fair Market Value on the exercise date, or a combination of cash and Shares, as the Committee may determine.
10. Restricted Shares.
(a) Grant of Restricted Shares. The Company shall grant Restricted Shares to Participants under the Plan at such times, in such numbers, and upon such terms as the Committee shall determine.
(b) Terms of Restricted Shares. The Award Agreement for a grant of Restricted Shares shall set forth such terms, conditions, restrictions, and limits on the Restricted Shares as the Committee shall determine and as are consistent with the provisions of the Plan, including the following:
(i) Conditions on Vesting. The Participant’s interest in Restricted Shares shall be forfeitable when the Award is granted. In the Award Agreement, the Committee shall prescribe conditions that must be satisfied and the time by which, or time period during which, the conditions must be satisfied, in order for the Participant’s interest to become vested. The conditions may include one or more of the following:
(A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period,
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(B) the continuance of the Participant’s Service for a specified period, or
(C) the satisfaction of other specified conditions.
The Award Agreement may provide that the extent of the Participant’s vested interest shall be determined by the extent to which a condition is satisfied. The limited period of time provided for the satisfaction of the conditions on an Award shall be referred to as the “Restricted Period.”
(ii) Vesting. Upon the satisfaction, within the Restricted Period, of the conditions established by the Committee, or as provided in Section 10(b)(iii), the Participant’s interest in the Restricted Shares shall become vested to the extent provided in the Award Agreement; provided, however, Restricted Shares granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made. The restrictions applicable to those vested Restricted Shares shall lapse at that time, and the Company shall deliver evidence of ownership of the vested Shares, consistent with Section 7(i), to the Participant or the Participant’s estate or the Person to whom the Participant’s rights are transferred by will or under the laws of descent and distribution, as the case may be, free of all restrictions, subject to the satisfaction of the Company’s withholding obligations as described in Section 18(c).
(iii) Accelerated Vesting. The Committee may provide in an Award Agreement that upon the termination of the Participant’s Service during the Restricted Period by reason of death, Permanent Disability, retirement, or any other specified termination of Service, or upon the consummation of a Change in Control, the conditions and restrictions on all or a portion of the Restricted Shares shall lapse, and the Participant’s interest in those Shares shall become vested.
(iv) Forfeiture. Except as provided by the Committee in accordance with Section 10(b)(iii), the Participant shall forfeit Restricted Shares upon the expiration of the Restricted Period, to the extent the conditions prescribed by the Committee have not been satisfied. Upon such a forfeiture, all of the Participant’s interest in the forfeited Restricted Shares shall automatically revert to the Company.
(v) Registration; Restricted Share Certificate. Pursuant to Section 7(i), to the extent that ownership of Restricted Shares is evidenced by a book-entry registration or direct registration, such registration shall be notated to evidence the restrictions imposed on such Award of Restricted Shares under the Plan and the applicable Award Agreement. Subject to
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Section 7(i) and the immediately following sentence, the Company may issue, in the name of each Participant to whom Restricted Shares have been granted, certificates representing the total number of Restricted Shares granted to the Participant, as soon as reasonably practicable after the date of grant of such Restricted Shares. The Committee may provide in an Award Agreement with respect to an Award of Restricted Shares that either (A) the Company shall hold such certificates for the Participant’s benefit until such time as the Restricted Shares are forfeited to the Company or the restrictions applicable thereto lapse and such Participant shall deliver a stock power to the Company with respect to each certificate, or (B) such certificates shall be delivered to the Participant; provided, however, that such certificates shall bear a legend or legends that comply with the applicable securities laws and regulations and make appropriate reference to the restrictions imposed on such Restricted Shares under the Plan and the applicable Award Agreement.
(vi) Voting and Dividend Rights. Unless otherwise provided by the Committee in the Award Agreement, the Participant to whom Restricted Shares have been granted shall be entitled, during the Restricted Period, to vote those Shares and to receive the dividends payable with respect to those Shares. If the vesting of an Award of Restricted Shares is conditioned on the satisfaction of Performance Goals or other performance-related conditions, dividends on such Restricted Shares shall be deferred and held in escrow or deemed reinvested in additional Restricted Shares during the Restricted Period and shall not vest unless the Performance Goals or other performance-related conditions for the underlying Award of Restricted Shares are achieved, and if such Performance Goals or other performance-related conditions are not achieved, the Participant shall promptly forfeit such deferred or reinvested dividend payments.
11. Restricted Share Units.
(a) Grant of Restricted Share Units. A Restricted Share Unit shall entitle a Participant to a Share, the Fair Market Value of a Share in cash, or a combination of the two, at a future date, subject to the satisfaction of any terms and conditions specified by the Committee. The Company shall grant Restricted Share Units to Participants under the Plan at such times, in such numbers, and upon such terms as the Committee shall determine.
(b) Terms of Restricted Share Units. The Award Agreement for Restricted Share Units shall set forth such terms, conditions, restrictions, and limits on the RSUs as the Committee shall determine and as are consistent with the provisions of the Plan, including the following:
(i) Conditions on Vesting. The Participant’s interest in an Award of Restricted Share Units shall be forfeitable when the Award is granted. In the Award Agreement, the Committee shall prescribe conditions that must be satisfied and the time by which, or time period during which, the conditions must be satisfied, in order for the Participant’s interest to become vested. The conditions may include one or more of the following:
(A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period,
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(B) the continuance of the Participant’s Service for a specified period, or
(C) the satisfaction of other specified conditions.
The Award Agreement may provide that the extent of the Participant’s vested interest shall be determined by the extent to which a condition is satisfied. The limited period of time provided for the satisfaction of the conditions on an Award shall be referred to as the “Restricted Period.”
(ii) Vesting. Upon the satisfaction, within the Restricted Period, of the conditions established by the Committee, or as provided in Section 11(b)(iii), the Participant’s interest in the Restricted Share Units shall become vested to the extent provided in the Award Agreement; provided, however, Restricted Share Units granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made.
(iii) Accelerated Vesting. The Committee may provide that upon the termination of the Participant’s Service during the Restricted Period by reason of death, Permanent Disability, retirement, or any other specified termination of Service, or upon the consummation of a Change in Control, the conditions and restrictions on all or a portion of the Restricted Share Units shall lapse, and the Restricted Period with respect to those RSUs shall expire.
(iv) Forfeiture. Except as provided by the Committee in accordance with Section 11(b)(iii), the Participant shall forfeit Restricted Share Units upon the expiration of the Restricted Period or upon an earlier termination of Service, to the extent the conditions prescribed by the Committee have not been satisfied. Upon such a forfeiture, all of the Participant’s interest in the forfeited Restricted Share Units shall automatically revert to the Company.
(v) No Voting or Dividend Rights. A Restricted Share Unit shall carry with it no voting or dividend or other rights associated with Common Share ownership.
(vi) Dividend Equivalents. Notwithstanding Section 11(b)(v), and subject to Section 12(b), the Committee may but need not provide that a bookkeeping account established for a Participant shall be credited with an amount equivalent to the amount of dividends that would be payable with respect to a number of Shares equal to the number of Restricted Share Units awarded to the Participant. The Committee may provide for the crediting of interest on any Dividend Equivalents credited to a Participant’s account or may provide that the Dividend Equivalent credit be adjusted for hypothetical investment experience in such manner as the Committee may determine. If the Participant forfeits his or her interest in a Restricted Share Unit, the Participant shall simultaneously forfeit any Dividend Equivalents (as adjusted) attributable to those Restricted Share Units.
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(c) Payment of Vested Restricted Share Units.
(i) Payment of vested Restricted Share Units and other amounts credited to a Participant’s account shall be made at such time or times after the expiration of the Restricted Period as the Committee may establish. The Committee may but need not provide that a Participant may elect to defer payment until such time or times as the Committee may allow. The Committee may provide for payments in lump sums or installments or both. The Committee shall establish procedures for its establishment of the time of payment and for the form and timing of a Participant’s deferral and payment elections. All elections shall conform to the Committee’s procedures. The Committee’s procedures shall conform to the requirements of Code section 409A.
(ii) The Committee may, in its discretion, change the procedures for elections, change the time to which payment may be deferred, and change the availability of lump sum or installment payments. The Committee may provide that such changes will apply to Restricted Share Units and other amounts already credited to a Participant’s account, with respect to which a Participant may have already made deferral and payment elections, but only to the extent such changes would not cause the Plan to fail to conform to the requirements of Code section 409A.
(iii) The Company shall not establish any special fund with respect to a Participant’s account. Any credit entries made to a Participant’s account shall constitute a mere promise by the Company to make payments to the Participant, subject to and in accordance with the Plan, from the general assets of the Company, when the payments become due.
(iv) To the extent that any Person acquires a right to receive payments from the Company under this Plan, such right shall be no greater than the right of any unsecured general creditor of the Company.
12. Other Awards.
(a) General. The Committee may determine, subject to the terms of the Plan, that the Company shall grant Awards that are not described in Sections 8 through 11, but that provide for the issuance of Common Shares, or that are denominated in or measured by the Fair Market Value of a Share, or that provide for payment in the form of Shares, rather than cash under any Company bonus or incentive program. The Committee shall determine the terms and conditions of any such other Awards and the Participants to whom and the numbers in which such other Awards shall be granted. The Committee may condition the exercisability, vesting, and payment of such other Awards upon the satisfaction of Performance Goals or other performance-based objectives.
(b) Dividend Equivalents. Subject to Section 8(b)(vii) and Section 9(b)(vi), Dividend Equivalents may be granted by the Committee, either alone or in tandem with another Award, based on dividends declared on the Common Shares, to be credited as of dividend payment dates during the period between the date the Dividend Equivalents are granted to a Participant and the date such Dividend Equivalents terminate or expire, as determined by the Committee. Such Dividend Equivalents shall be converted to cash or additional Shares by such formula, at such time, and subject to such limitations as may be determined by the Committee. Dividend
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Equivalents with respect to Shares covered by an Award whose vesting is conditioned on the satisfaction of a Performance Goal, other performance-related objectives, or Service vesting shall only be paid out to the Participant at the same time or times and to the same extent that such vesting conditions are subsequently satisfied and the Award vests with respect to such Shares. Nothing in this Section 12(b) or otherwise under the Plan shall be construed to prohibit the payment of distributions from the Partnership in respect of Profits Interests Units as provided for by the Committee in the Award Agreement for such Profits Interests Units (or which otherwise may apply to Awards of Profits Interest Units under the Partnership Agreement).
(c) Profits Interest Units (LTIP Units).
(i) The Committee is authorized to grant Profits Interest Units in such amount and subject to such terms and conditions as may be determined by the Committee; provided, however, that Profits Interest Units may only be issued to a Participant for the performance of services to or for the benefit of the Partnership (A) in the Participant’s capacity as a partner of the Partnership, (B) in anticipation of the Participant becoming a partner of the Partnership, or (C) as otherwise determined by the Committee, provided that the Profits Interest Units are intended to constitute “profits interests” within the meaning of the Code, including, to the extent applicable, Revenue Procedure 93-27, 1993-2 C.B. 343, and Revenue Procedure 2001-43, 2001-2 C.B. 191.
(ii) The Committee shall specify the conditions and dates upon which the Profits Interest Units shall vest and become nonforfeitable. The conditions may include one or more of the following: (A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period, (B) the continuance of the Participant’s Service for a specified period, or (C) the satisfaction of other specified conditions. Notwithstanding the foregoing, Profits Interest Units granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made; provided further, that the Committee may provide that such vesting restrictions may lapse or be waived upon the Participant’s death, Permanent Disability, retirement, or any other specified termination of Service or upon the consummation of a Change in Control. Profits Interest Units shall be subject to the terms and conditions of the Partnership Agreement and such other restrictions, including restrictions on transferability, as the Committee may impose. These restrictions may lapse separately or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Award or thereafter.
13. Awards to Non-Employee Directors. Notwithstanding any other provision of the Plan, the grant of any Award to a Non-Employee Director shall be made by the Board only pursuant to a written nondiscretionary formula established by the Board (a “Non-Employee Director Compensation Policy”). A Non-Employee Director Compensation Policy shall set forth the type of Awards to be granted to Non-Employee Directors; the number of Shares to be subject to Awards to be granted to Non-Employee Directors; the conditions on which such Awards shall be granted, become exercisable, payable, and expire; and such other terms and conditions as the Board determines in its discretion. Awards granted to Non-Employee Directors shall be subject
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to all of the limits set forth in this Plan. Notwithstanding any provision to the contrary in the Plan or in a Non-Employee Director Compensation Policy, the maximum aggregate grant date fair value of one or more Awards granted to a Non-Employee Director during any calendar year shall be one million dollars ($1,000,000).
14. Required Adjustments in Authorized Shares. In the event of any change in corporate capitalization, such as a stock split, or a corporate transaction, such as a merger, consolidation, separation, including a spin off, or other distribution of stock or property of the Company, any reorganization (whether or not such reorganization comes within the definition of such term in Code section 368), or any partial or complete liquidation of the Company, in each case following the Effective Date, such adjustment shall be made in the number and class of Shares available for Awards under Section 5, in the number of Shares subject to outstanding Awards, in the exercise or purchase price under outstanding Awards, and in the limits on Awards and the issuance of Shares set forth in Section 5, as determined by the Committee to be appropriate and equitable to prevent dilution or enlargement of the benefits available under the Plan and of the rights of Participants; provided, however, that the number of Shares subject to an Award shall always be a whole number. In a stock-for-stock acquisition of the Company, the Committee may, in its discretion, substitute securities of another issuer for any Shares subject to outstanding Awards.
Except as expressly provided in this Section 14, the issuance by the Company of shares of any class or securities convertible into shares of any class, for cash, property, labor, or services, upon direct sale, upon the exercise of rights or warrants, or upon the conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect, and no adjustment shall be made with respect to, the number of Shares subject to Awards previously granted or the exercise or purchase price per Share under outstanding Awards.
15. Change in Control.
The following provisions shall apply in the event of a Change in Control following the Effective Date:
(a) If and to the extent that outstanding Awards under the Plan (i) are assumed by the successor corporation (or an affiliate of the successor) or continued or (ii) are replaced with equity awards that preserve the existing value of the Awards at the time of the Change in Control and provide for subsequent payout in accordance with a vesting schedule and Performance Goals or other performance-based objectives, as applicable, that are the same or more favorable to the Participants than the vesting schedule and Performance Goals or other performance-based objectives applicable to the Awards, then all such Awards or such substitutes for them shall remain outstanding and be governed by their respective terms and the provisions of the Plan subject to Section 15(d).
(b) If and to the extent that outstanding Awards under the Plan are not assumed, continued, or replaced in accordance with Section 15(a), then upon the Change in Control, the Committee may, in its sole discretion, provide that: (i) outstanding Options and SARs shall immediately vest and become exercisable; and (ii) the restrictions and other conditions applicable to outstanding Restricted Shares, Restricted Share Units, and other Share-based
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Awards, including vesting requirements, shall immediately lapse, and any Performance Goals or other performance-based objectives relevant to such Awards shall be deemed to have been achieved at the target performance level, such that such Awards shall be free of all restrictions, fully vested, and settled or payable immediately in accordance with their terms or, if later, as of the earliest permissible date under Code section 409A (collectively, the “Change in Control Treatment”). Notwithstanding anything in the Plan to the contrary, unless the Change in Control is a change in the ownership or effective control or of ownership of a substantial portion of the assets of the Company (within the meaning of Code section 409A), a Change in Control shall not accelerate the time of payment of Restricted Share Units and other Awards and amounts payable under the Plan that are deferred compensation subject to Code section 409A.
(c) In addition, if and to the extent that outstanding Awards under the Plan are not assumed, continued, or replaced in accordance with Section 15(a), then in connection with the Committee determination in Section 15(b) above, the Committee may, in its sole discretion, provide for cancellation of such outstanding Awards at the time of the Change in Control in which case a payment of cash, property, or a combination of cash and property shall be made to each such Participant upon the consummation of the Change in Control that is determined by the Committee in its sole discretion and that is at least equal to the excess (if any) of the value of the consideration that would be received in such Change in Control by the holders of the Company’s securities relating to such Awards over the exercise or purchase price (if any) for such Awards (except that, in the case of an Option or SAR, such payment shall be limited as necessary to prevent the Option or SAR from being subject to Code section 409A).
(d) If and to the extent that (i) outstanding Awards are assumed, continued, or replaced in accordance with Section 15(a) above and (ii) a Participant’s Service is terminated by the Company (or a successor corporation or an affiliate of such successor) for any reason other than Cause or by such Participant for Good Reason, in each case, within the two (2)-year period commencing on the Change in Control, then, as of the date of such Participant’s termination, the Change in Control Treatment set forth in Section 15(b) above shall automatically apply to all assumed or replaced Awards of such Participant then outstanding.
(e) Outstanding Options or SARs that are assumed, continued, or replaced in accordance with Section 15(a) may be exercised by the Participant in accordance with the applicable terms and conditions of such Award as set forth in the applicable Award Agreement or elsewhere; provided, however, that Options or SARs that become exercisable in accordance with Section 15(d) may be exercised until the expiration of the original full term of such Option or SAR notwithstanding the other original terms and conditions of such Award.
16. Amendment of Awards. Subject to Section 7(f) (prohibition against repricing of Options and Stock Appreciation Rights), the Committee may at any time unilaterally amend any outstanding Award to the extent the Committee determines necessary or desirable; provided, however, that an amendment that would be adverse to the interests of the Participant or, with respect to an Incentive Stock Option, that would prevent the Option from qualifying as an ISO, shall not be effective without the holder’s consent.
17. Term; Amendment and Termination of Plan. The Plan shall terminate automatically on the day before the tenth (10th) anniversary of the Effective Date, unless terminated earlier in
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accordance with this Section 17. Notwithstanding anything herein to the contrary, no ISO shall be granted under the Plan after the tenth (10th) anniversary of the Board’s initial adoption of the Plan. The Board may amend, suspend, or terminate the Plan or any portion of the Plan at any time; provided no amendment may be made without shareholder approval if such approval is required by applicable law or the requirements of an applicable stock exchange, or if such amendment would allow the grant of Options or Stock Appreciation Rights at an exercise price below Fair Market Value at the date of grant, contrary to the provisions of Section 8(b)(i) and Section 9(b)(i); provided further that no such amendment, suspension, or termination shall adversely affect the rights under any outstanding Award without the holder’s consent.
18. Miscellaneous.
(a) Beneficiary Designation. Each Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in case of the Participant’s death before the Participant receives any or all of such benefit. Each such designation shall revoke all prior designations by the same Participant with respect to such benefit, shall be in a form prescribed by the Company, and shall be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. In the absence of any such designation, any benefits remaining payable under the Plan at the Participant’s death shall be paid when due to the Participant’s estate unless otherwise provided in the Award Agreement.
(b) Deferrals. Pursuant to the applicable requirements of Code section 409A, the Committee may permit or require a Participant to defer receipt of the payment of cash or the delivery of Shares that would otherwise be due pursuant to the lapse or waiver of restrictions with respect to Restricted Shares or Restricted Share Units, or in connection with any other Awards. If any such deferral is required or permitted, the Committee shall establish rules and procedures for such deferrals in compliance with the requirements of Code section 409A.
(c) Satisfaction of Tax Liabilities.
(i) The Company, the Partnership, and its Subsidiaries shall have the power and the right to deduct or withhold, or to require a Participant to remit to the Company, the Partnership, or a Subsidiary, an amount that the Company, the Partnership, or a Subsidiary reasonably determines to be required to comply with federal, state, local, or foreign tax withholding requirements with respect to the vesting, settlement, or exercise of, or payment with respect to, an Award. The Company, the Partnership, or a Subsidiary may require the payment of such taxes before Shares or cash deliverable pursuant to such Award are transferred to the holder of the Award.
(ii) The Committee may allow a Participant to elect to pay the Company’s, the Partnership’s, or a Subsidiary’s minimum required statutory withholding tax obligation with respect to an Award to be settled in Shares by the withholding of Shares from the total number of Shares deliverable pursuant to the Award, or by delivering to the Company a sufficient number of previously-acquired Shares, in each case in accordance with rules and procedures established by the Committee. Previously-acquired Shares delivered in payment for such taxes may be subject to such conditions as the Committee may require. The value of each Share withheld, or
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delivered, shall be the Fair Market Value of a Share on the date on which the amount of tax to be withheld is to be determined. The Committee, subject to its having considered the applicable accounting impact of any such determination, has full discretion to allow Participants to satisfy, in whole or in part, any additional income, employment and/or other applicable taxes payable by them with respect to an Award by electing to have the Company withhold from the Common Shares otherwise issuable or deliverable to, or that would otherwise be retained by, a Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, Common Shares having an aggregate Fair Market Value that is greater than the applicable minimum required statutory withholding liability (but such withholding may in no event be in excess of the maximum statutory withholding amount(s) in a Participant’s relevant tax jurisdictions).
(d) No Alienation. Except to the extent required by law, the right of a Participant or beneficiary to payment under this Plan shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant or beneficiary.
19. Restrictions on Issuance of Common Shares.
(a) General. Should the Board of Directors determine that the listing, registration, or qualification of Common Shares upon any securities exchange or under any state or federal law or the consent or approval of any governmental regulatory body is necessary or desirable as a condition to or in connection with the issuance or delivery of Common Shares under the Plan, no such Common Shares shall be issued or delivered unless such listing, registration, qualification, consent, or approval has been effected or obtained free of any conditions not acceptable to the Board of Directors. The Company shall not be required to offer, sell, or issue any Common Shares under any Award, whether pursuant to the exercise of an Option or SAR or otherwise, if the offer, sale, or issuance of such Shares would constitute a violation by the Participant, any other individual or entity exercising an Option or SAR, or the Company, the Partnership, or a Subsidiary of any provision of applicable laws, including without limitation any federal or state securities laws or regulations.
(b) Legends. The certificates representing Common Shares issued by the Company under the Plan may bear a legend describing any restrictions on resale of such Common Shares under applicable securities laws, and stop transfer orders with respect to such certificates may be entered on the Company’s stock transfer records.
20. Construction. The Plan shall be construed in accordance with the law of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan, the Awards, and any Award Agreement to the substantive laws of any other jurisdiction. With respect to Options granted under the Plan that are intended to qualify as Incentive Stock Options, the terms of the Plan and of each Incentive Stock Option granted pursuant to the Plan shall be construed to give effect to such intention. With respect to Awards granted under the Plan that are intended to qualify for the exception under Code section 162(m) for performance-based pay, the terms of the Plan and the Award Agreement shall be construed and administered to give effect to such intention, unless the Committee determines to waive the application of such exception. With respect to Awards granted under the Plan that provide for the payment of deferred compensation (within the
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meaning of Code section 409A), the terms of the Plan and the Award Agreement shall be construed to conform to the requirements of Code section 409A for the deferral (until payment) of the inclusion of the compensation in gross income.
21. Section 83(b) Election. No Participant may make an election under Code section 83(b) with respect to any Award under the Plan without the consent of the Committee, which the Committee may grant or withhold in its sole discretion. If, with the consent of the Committee, a Participant makes an election under Code section 83(b) to be taxed with respect to an Award as of the date of transfer of the Award, rather than as of the date or dates upon which the Award would otherwise be taxable under Code section 83(a), the Participant shall be required to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service.
22. Grant of Awards to Certain Employees or Consultants. The Company, the Partnership, or any Subsidiary may provide, through the establishment of a formal written policy or otherwise, for the method by which Shares or other securities and/or payment therefor may be exchanged or contributed among such entities, or may be returned upon any forfeiture of Shares or other securities by the Participant, for the purpose of ensuring that the relationship between the Company, the Partnership, and any Subsidiary remains at arm’s-length.
23. REIT Status. The Plan shall be interpreted and construed in a manner consistent with the Company’s status as a real estate investment trust (REIT). No Award shall be granted or awarded, and with respect to any Award granted under the Plan, such Award shall not vest, be exercisable, or be settled:
(a) to the extent that the grant, vesting, exercise, or settlement of such Award could cause the Participant or any other Person to be in violation of the Common Stock Ownership Limit (as defined in the Company’s Articles of Amendment and Restatement, dated October 4, 2016, as it may be amended and supplemented from time to time) or any other provision of the Company’s charter; or
(b) if, in the discretion of the Committee, the grant, vesting, exercise, or settlement of such Award could impair the Company’s status as a REIT.
* * *
25 | [
"Exhibit 10.16 PARKWAY, INC. AND PARKWAY OPERATING PARTNERSHIP LP 2016 OMNIBUS EQUITY INCENTIVE PLAN 1. Introduction. Parkway, Inc., a Maryland real estate investment trust (and its successors, the “Company”), established this Parkway, Inc. and Parkway Operating Partnership LP 2016 Omnibus Equity Incentive Plan (as it may be amended from time to time, the “Plan”), effective as of immediately prior to the Distribution (as defined below). 2. Purpose. The purposes of the Plan are to promote the growth and success of the Company and Parkway Operating Partnership LP (the “Partnership”) by aligning the interests of Employees, Directors, and Consultants with those of the Company’s shareholders and to attract, retain, and reward Employees, Directors, and Consultants. To serve these purposes, the Plan offers equity-based incentive awards. 3.",
"Definitions. As used in this Plan: (a) “Assumed Shares” shall have the meaning set forth in Section 5(a). (b) “Award” shall mean a grant under the Plan of Options (either Incentive Stock Options or Nonstatutory Stock Options), Stock Appreciation Rights, Restricted Shares, Restricted Share Units, Profits Interest Units, Dividend Equivalents, other Share-based awards (as described in Section 12), or cash. (c) “Award Agreement” shall mean a written agreement entered into between the Company and a Participant or other documentation issued by the Company, in either case setting forth the terms and conditions applicable to an Award granted under the Plan. An Award Agreement shall be subject to the terms of the Plan. (d) “Board of Directors” or “Board” shall mean the Board of Directors of the Company. (e) “Cause” shall mean, with respect to a Participant, unless otherwise provided in an applicable agreement between such Participant and the Company, the Partnership, or a Subsidiary, (i) the Participant’s continued failure to perform material responsibilities and duties toward the Company (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness); (ii) the Participant’s engaging in willful or reckless conduct that is demonstrably injurious to the Company monetarily or otherwise; (iii) the Participant’s conviction of, or pleading guilty or nolo contendere to, a felony; or (iv) the Participant’s commission or omission of any act that is materially inimical to the best interests of the Company and that constitutes on the part of the Participant common law fraud or malfeasance, misfeasance, or -------------------------------------------------------------------------------- nonfeasance of duty; provided, however, that Cause shall not include the Participant’s lack of professional qualifications.",
"For purposes of this Plan, an act, or failure to act, on the Participant’s part shall be considered “willful” or “reckless” only if done, or omitted, by the Participant not in good faith and without reasonable belief that the action or omission was in the best interest of the Company. (f) “Change in Control” of the Company shall mean and shall be deemed to have occurred if (i) any Person is or becomes a beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing forty-five percent (45%) or more of the combined voting power of the Company’s then outstanding securities; or (ii) the Company closes on a merger or consolidation with any other Person, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately before the merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of such surviving entity) more than fifty-five percent (55%) of the combined voting power of the voting securities of the Company or of such surviving entity outstanding immediately after such merger or consolidation; or (iii) the Company closes on an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or (iv) there has been a change in fifty percent (50%) or more of the voting power of the members of the Board in any rolling twelve (12)-month period, provided that any new directors whose election by the Board or whose nomination by the Board for election by the shareholders of the Company was approved by a vote of at least a majority of the members of the Board shall not constitute a change in voting power of the members of the Board.",
"(g) “Change in Control Treatment” shall have the meaning set forth in Section 15(b). (h) “Committee” shall mean a committee of the Board of Directors of the Company, which committee shall be composed of those members of the Compensation Committee of the Board of Directors who are (i) non-employee directors, as that term is defined in Rule 16b-3 under the Exchange Act, (ii) outside directors, as that term is defined for the purposes of Internal Revenue Code section 162(m), and (iii) for so long as the Shares are listed on the New York Stock Exchange, independent directors, as that term is defined in Section 303A of the New York Stock Exchange Listed Company Manual; provided that, should there be fewer than two (2) members of the Compensation Committee who are non-employee directors, outside directors, and independent directors, the Committee shall be composed of two (2) or more members of the Board of Directors designated by the Board who are non-employee directors, outside directors, and independent directors, including anyone who is a member of the Compensation Committee. (i) “Common Shares” or “Shares” shall mean the shares of common stock, par value $0.001 per share, of the Company, or such other securities or property as may become subject to Awards pursuant to an adjustment made under Section 14.",
"(j) “Consultant” shall mean any consultant or advisor of the Company, the Partnership, or any Subsidiary who qualifies as a consultant or advisor under the applicable rules of the Form S-8 Registration Statement. 2 -------------------------------------------------------------------------------- (k) “Cousins” shall mean Cousins Properties Incorporated, a Georgia corporation. (l) “Director” shall mean a member of the Board of Directors of the Company. (m) “Distribution” shall mean the distribution by Cousins to the shareholders of Cousins (which includes the legacy shareholders of Legacy Parkway) of all of the outstanding Common Shares of the Company owned by Cousins pursuant to the Separation and Distribution Agreement. (n) “Dividend Equivalent” shall mean a right to receive the equivalent value (in cash or Shares) of dividends paid on Shares, awarded under Section 12(b) hereof.",
"(o) “Effective Date” shall have the meaning of the “Distribution Date,” as it is defined in the Separation and Distribution Agreement. (p) “Employee” shall mean, for Awards other than Incentive Stock Options, an employee of the Company, the Partnership, or a Subsidiary, and for Incentive Stock Options, an employee of the Company or a subsidiary (within the meaning of Code section 424). (q) “Employee Matters Agreement” shall mean that certain Employee Matters Agreement, by and between Cousins Properties Incorporated, Cousins Properties LP, Clinic Sub, Inc., Parkway Properties, Inc., Parkway Properties LP, Parkway Properties General Partners, Inc., the Company, and the Partnership, dated as of October 5, 2016.",
"(r) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor thereto. (s) “Fair Market Value” of a Common Share shall mean, on a given date: (i) If the Common Shares are (A) listed on any established securities exchange (such as the New York Stock Exchange, the NASDAQ Global Market, and the NASDAQ Global Select Market), (B) listed on any national market system, or (C) listed, quoted, or traded on any automated quotation system, the Fair Market Value shall be the closing sales price for a Share as quoted on such exchange or system for such date or, if there is no closing sales price for a Share on the date in question, the closing sales price for a Share on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the Committee deems reliable; (ii) If the Common Shares are not listed on an established securities exchange, national market system, or automated quotation system, but the Common Shares are regularly quoted by a recognized securities dealer, the Fair Market Value shall be the average of the mean of the high bid and low asked prices for such date or, if there are no high bid and low asked prices for a Share on such date, the high bid and low asked prices for a Share on the last preceding date for which such information exists, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or (iii) If the Common Shares are neither listed on an established securities exchange, national market system, or automated quotation system nor regularly quoted by a 3 -------------------------------------------------------------------------------- recognized securities dealer, the Fair Market Value shall be established by the Committee in good faith by the reasonable application of a reasonable valuation method, in a manner consistent with Code section 409A.",
"(t) “Family Member” shall mean, with respect to any Participant as of any date of determination, (i) a person who is a spouse, former spouse, child, stepchild, grandchild, parent, stepparent, grandparent, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister, brother-in-law, or sister-in-law, including adoptive relationships, of the Participant; (ii) any person sharing the Participant’s household (other than a tenant or employee); (iii) a trust in which any one or more of the persons specified in clauses (i) and (ii) above (and such Participant) own more than fifty percent (50%) of the beneficial interest; (iv) a foundation in which any one or more of the persons specified in clauses (i) and (ii) above (and such Participant) control the management of assets; and (v) any other entity in which one or more of the persons specified in clauses (i) and (ii) above (and such Participant) own more than fifty percent (50%) of the voting interests.",
"(u) “Good Reason” shall mean, with respect to a Participant, unless otherwise provided in an applicable agreement between such Participant and the Company, the Partnership, or a Subsidiary, the occurrence of any of the following: (i) the material diminution, following a Change in Control, of the Participant’s authority, duties, or responsibilities; (ii) a material diminution by the Company in the Participant’s base salary in effect immediately before a Change in Control; or (iii) a change of the Participant’s principal place of employment to a location more than fifty (50) miles from such principal place of employment as of immediately before a Change in Control, except for required travel on the Company’s business to an extent substantially consistent with the business travel obligations which the Participant undertook on behalf of the Company as of immediately before a Change in Control. A termination for Good Reason must be communicated by the Participant to the Company by written notice that specifies the event or events claimed to provide a basis for termination for Good Reason; provided that the Participant’s written notice must be tendered within ninety (90) days of the first occurrence of such event or events and provided further that the Company shall have failed to remedy such act or omission within thirty (30) days following its receipt of such notice and the Participant actually terminates Service within fourteen (14) days after the Company’s failure to timely remedy such act or omission.",
"(v) “Incentive Stock Option” or “ISO” shall mean an incentive stock option as defined in Internal Revenue Code section 422. (w) “Internal Revenue Code” or “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto, and any regulations promulgated thereunder. 4 -------------------------------------------------------------------------------- (x) “Legacy Parkway” shall mean Parkway Properties, Inc., a Maryland real estate investment trust.",
"(y) “Legacy Parkway Equity Plan” shall mean the Parkway Properties, Inc. and Parkway Properties LP 2015 Omnibus Equity Incentive Plan, as amended, and any successor thereto. (z) “Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated as of April 28, 2016, by and among Legacy Parkway, Parkway Properties LP, Cousins, and Clinic Sub Inc. (aa) “Misconduct” shall mean conduct of a Participant that, in the Committee’s judgment, constitutes: (i) a commission of an act of theft, embezzlement, fraud, dishonesty, or other criminal act, harmful to the Company, the Partnership, or a Subsidiary, (ii) a breach of a fiduciary duty owed to the Company, the Partnership, or a Subsidiary, (iii) a deliberate and serious disregard of rules of the Company, the Partnership, or a Subsidiary, (iv) an unauthorized disclosure of any of the trade secrets or confidential information of the Company, the Partnership, or a Subsidiary, (v) competition with the Company, the Partnership, or a Subsidiary, or (vi) “cause” as defined in any other agreement between the Company, the Partnership, or a Subsidiary, on the one hand, and such Participant, on the other hand.",
"(bb) “New Shares” shall have the meaning set forth in Section 5(a). (cc) “Non-Employee Director” shall mean a Director who is not also an Employee. (dd) “Non-Employee Director Compensation Policy” shall have the meaning set forth in Section 13. (ee) “Nonstatutory Stock Option” shall mean an Option that is not an Incentive Stock Option. (ff) “Option” shall mean an option awarded pursuant to Section 8 to purchase a Common Share and may refer to an Incentive Stock Option or a Nonstatutory Stock Option. (gg) “Participant” shall mean an Employee, Director, or Consultant who holds an outstanding Award under the Plan. (hh) “Partnership Agreement” shall mean the Agreement of Limited Partnership of Parkway Operating Partnership LP, as amended from time to time. 5 -------------------------------------------------------------------------------- (ii) “Performance Goal” shall mean an objective test of performance based on one or more of the following criteria: (i) revenue; (ii) earnings; (iii) net earnings; (iv) operating earnings; (v) earnings before taxes; (vi) earnings before income tax expense, interest expense, and depreciation and amortization expense (EBITDA); (vii) earnings per Share; (viii) stock price; (ix) costs; (x) return on equity; (xi) return on assets; (xii) assets management; (xiii) asset quality; (xiv) asset growth; (xv) budget achievement; (xvi) net operating income (NOI); (xvii) average occupancy; (xviii) year-end occupancy; (xix) funds from operations (FFO); (xx) adjusted funds from operations (AFFO); (xxi) funds available for distribution (FAD); (xxii) dividend or FAD payment; (xxiii) total shareholder return on an absolute basis or a relative basis measured against comparable peers or a real estate index; (xxiv) leverage ratios; (xxv) capital expenditures; (xxvi) customer satisfaction survey results; (xxvii) property operating expense savings; (xxviii) design, development, permitting, or other progress on designated properties; (xxix) third-party fee generation; (xxx) leasing goals; (xxxi) goals relating to mergers and acquisitions or divestitures, targeted financing, or capital market objectives; (xxxii) lease retention; (xxxiii) liability management; (xxxiv) credit management; (xxxv) certain levels of operating expense; (xxxvi) growth in assets, unit volume, revenue, sales, or market share; or (xxxvii) strategic business criteria consisting of one or more objectives based on meeting specified revenue goals, market penetration goals, geographic business expansion goals, or cost targets.",
"Performance Goals may differ from Participant to Participant and Award to Award and may be established for the Company as a whole, on a per Share basis, or for the Company’s various properties, groups, divisions, or Subsidiaries, or the Partnership, or a combination of them. Performance Goals may be based on absolute performance or on performance relative to performance of unrelated businesses specified by the Committee, on other external measures of the selected performance criteria, or on comparison to any prior period or to budget or target.",
"All calculations and financial accounting matters relevant to this Plan and to which generally accepted accounting principles (GAAP) apply shall be determined in accordance with GAAP as in effect on the date of an Award, except as otherwise specified by the Committee. For example, the Committee may specify that the measurement of performance shall include or exclude particular items, such as losses from discontinued operations, debt prepayment penalties, extraordinary gains or losses, the cumulative effect of accounting changes, acquisitions or divestitures, or nonrecurring gains or losses. (jj) “Performance Period” shall mean, with respect to an Award that vests based upon the attainment of Performance Goals or other performance-based objectives, the period of time, up to ten (10) years, during or over which the Performance Goals or other performance-based objectives applicable to such Award must be met in order to determine the degree of payout and/or vesting with respect to such Award.",
"(kk) “Person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a trust, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof; provided that, for purposes of Section 3(e)(i), Person shall have the meaning set forth in Sections 13(d) and 14(d)(2) of the Exchange Act. (ll) “Permanent Disability” shall mean a medically determinable physical or mental impairment that may be expected to result in death or to last at least a year and that renders a Participant incapable of performing that Participant’s duties with the Company.",
"A determination 6 -------------------------------------------------------------------------------- of Permanent Disability shall be made by the Committee in a uniform, nondiscriminatory manner on the basis of medical evidence. Notwithstanding the foregoing, in the case of a determination that would accelerate payment of Restricted Share Units or other Awards or amounts that are deferred compensation subject to Code section 409A, a Participant shall be considered to have a Permanent Disability only if the Participant is “disabled” within the meaning of Code section 409A or the regulations issued under that section. (mm) “Profits Interest Unit” or “LTIP Unit” shall mean, to the extent authorized by the Partnership Agreement (as either a “Profits Interest Unit” or an “LTIP Unit”), a unit of the Partnership that is granted pursuant to Section 12(c) and is intended to constitute a “profits interest” within the meaning of the Code.",
"(nn) “Restricted Period” shall mean the period described in Section 10(b)(i) or Section 11(b)(i). (oo) “Restricted Share” shall mean an Award granted pursuant to Section 10. (pp) “Restricted Share Unit” or “RSU” shall mean an Award granted pursuant to Section 11. (qq) “Separation and Distribution Agreement” shall mean that certain Separation and Distribution Agreement, by and between Cousins Properties Incorporated, Cousins Properties LP, Clinic Sub Inc., Parkway Properties, Inc., Parkway Properties LP, Parkway Properties General Partners, Inc., Parkway, Inc., and Parkway Operating Partnership LP, dated as of October 5, 2016. (rr) “Service” shall mean service as an Employee, Director, or Consultant to the Company, the Partnership, or a Subsidiary.",
"Unless otherwise stated in the applicable Award Agreement, a Participant’s change in position or duties shall not result in interrupted or terminated Service, so long as such Participant continues to be an Employee, a Director, or a Consultant to the Company, the Partnership, or a Subsidiary. Subject to the preceding sentence, whether a termination of Service shall have occurred for purposes of the Plan shall be determined by the Committee, which determination shall be final, binding, and conclusive. (ss) “Share Limit” shall have the meaning set forth in Section 5(a). (tt) “Stock Appreciation Right” or “SAR” shall mean an Award granted pursuant to Section 9.",
"(uu) “Subsidiary” shall mean a corporation, partnership, joint venture, or other entity in which the Company has an equity, profit, or voting interest of at least fifty percent (50%). 4. Administration. The Committee shall administer the Plan. The Committee shall have all the powers vested in it by the terms of the Plan. The Committee shall have full authority to interpret the Plan and Award Agreements; to prescribe, amend, and rescind rules and regulations relating to the Plan; and to make any determinations it finds necessary or advisable for the administration of 7 -------------------------------------------------------------------------------- the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award Agreement in the manner and to the extent the Committee deems desirable.",
"Any decision of the Committee in the administration and interpretation of the Plan shall be in its sole discretion and shall be final, binding, and conclusive on all Persons. The Committee may act only by a majority of its members in office, except that: (a) The Committee may authorize any one or more of its members or any officer of the Company to execute and deliver documents on behalf of the Committee. (b) The Committee may delegate ministerial duties and authority to interpret the Plan and respond to claims to a Vice President, Senior Vice President, or Executive Vice President, provided that the Committee may not delegate authority to (i) grant or amend Awards that are (A) held by individuals who are subject to Section 16 of the Exchange Act, (B) intended to qualify for the performance-based pay exception under Code section 162(m), or (C) held by officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated, or (ii) with respect to the certification of the satisfaction of Performance Goals. No Committee member and no delegate of the Committee shall be liable for any determination made in good faith with respect to the Plan, an Award, or a Participant. 5.",
"Shares Subject to Plan and Limits on Awards. (a) Shares Available. Subject to adjustment pursuant to Section 14, the maximum number of Common Shares with respect to which Awards may be granted under the Plan shall be equal to the sum of (i) five million (5,000,000) Common Shares (the “New Shares”), plus (ii) the number of Common Shares issuable pursuant to Awards resulting from awards originally granted under the Legacy Parkway Equity Plan that were outstanding immediately prior to the Distribution, converted into awards with respect to shares of Cousins’ common stock pursuant to the Merger Agreement and further converted into Awards pursuant to and as described in the Separation and Distribution Agreement and the Employee Matters Agreement (the “Assumed Shares,” together with the New Shares, the “Share Limit”).",
"Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Common Shares or Common Shares purchased on the open market. (b) Limits on Awards. Subject to adjustment pursuant to Section 14, the following additional limits shall apply to Awards under the Plan: (i) The maximum aggregate number of Common Shares that may be issued pursuant to Incentive Stock Options, other than Incentive Stock Options with respect to the Assumed Shares, granted under the Plan is five hundred thousand (500,000). (ii) The maximum number of Common Shares that may be made subject to Options or SARs, other than Awards with respect to the Assumed Shares, granted under the Plan to any Participant (other than a Non-Employee Director) during any one calendar year is five hundred thousand (500,000). 8 -------------------------------------------------------------------------------- (iii) The maximum number of Common Shares that may be made subject to Awards, other than Options or SARs and other than Awards with respect to the Assumed Shares, granted under the Plan that are Share-denominated and are either Share- or cash-settled to any Participant (other than a Non-Employee Director) during any one calendar year is one million (1,000,000).",
"(iv) The maximum amount that may be paid as a cash-denominated Award (whether or not cash-settled) that vests based on the attainment of Performance Goals or other performance-based objectives for a Performance Period of twelve (12) months or less to any Participant (other than a Non-Employee Director) shall be five million dollars ($5,000,000), and the maximum amount that may be paid as a cash-denominated Award (whether or not cash-settled) that vests based on the attainment of Performance Goals or other performance-based objectives for a Performance Period of greater than twelve (12) months to any Participant (other than a Non-Employee Director) shall be ten million dollars ($10,000,000). (c) Share Usage.",
"Shares subject to an Award shall be counted as used for purposes of the Share Limit as of the date of grant. With respect to SARs, the number of Shares subject to an Award of SARs will be counted against the aggregate number of Common Shares available for issuance under the Plan in settlement of Options and Stock Appreciation Rights regardless of the number of Shares actually issued to settle the SAR upon exercise. The target number of Shares issuable under an Award that vests based upon the attainment of Performance Goals or other performance-based objectives shall be counted against the aggregate number of Common Shares available for issuance under the Plan as of the date of grant, but such number shall be adjusted to equal the actual number of Shares issued upon settlement of such Award to the extent different from such target number of Shares.",
"If any Shares subject to an Award are forfeited or expire or such Award is settled for cash (in whole or in part), the Shares subject to such Award shall, to the extent of such forfeiture, expiration, or cash settlement, again be available for future grants of Awards under the Plan. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Share Limit and shall not be available for future grants of Awards: (i) Shares tendered by a Participant or withheld by the Company in payment of the exercise price of an Option; (ii) Shares tendered by a Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Option or a Stock Appreciation Right; (iii) Shares subject to a Stock Appreciation Right that are not issued in connection with the Share-settlement of the Stock Appreciation Right on exercise thereof; and (iv) Shares purchased on the open market with the cash proceeds from the exercise of Options.",
"Any Shares repurchased by the Company at the same price paid by the Participant, so that such Shares are returned to the Company, shall again be available for future grants of Awards. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not be counted against the Shares available for issuance under the Plan. Notwithstanding the provisions of this Section 5(c), no Shares may again be optioned, granted, or awarded if such action would cause an ISO to fail to qualify as an incentive stock option under section 422 of the Code. 6. Eligibility. Employees, Directors, and Consultants shall be eligible to receive Awards under the Plan, provided that no Employee, Director, or Consultant shall be entitled to an Award except as determined by the Committee or as provided by any Non-Employee Director Compensation Policy described in Section 13. 9 -------------------------------------------------------------------------------- 7. Awards. (a) Award Agreements. The Committee shall set forth the terms of each Award in an Award Agreement.",
"An Award Agreement may contain any provision approved by the Committee, subject to the terms of the Plan. An Award Agreement may make provision for any matter that is within the discretion of the Committee or may reserve for the Committee discretion to approve or authorize any action with respect to the Award. (b) Nonuniform Determinations. The Committee’s determinations under the Plan or Award Agreements, including, without limitation, the selection of Participants to receive Awards; the type, form, amount, and timing of Awards; and the terms of specific Award Agreements, need not be uniform, regardless of whether Participants are similarly situated. (c) Qualification for Section 162(m) Exception. (i) Committee’s Certification of Satisfaction of Performance Goals.",
"If the exercisability, payment, or vesting of an Award is conditioned upon the satisfaction of Performance Goals, and the Award is intended to qualify for the exception under Code section 162(m) for performance-based pay, the condition shall not be considered satisfied, and the Award shall not be exercisable, payable, or vest, as applicable, unless the Committee certifies that the Performance Goal has been satisfied. (ii) Satisfaction of Other Requirements. To the extent an Award is intended to qualify for the exception under Code section 162(m) for performance-based pay, the Committee shall make such provisions in Award Agreements and follow such procedures as may be required to satisfy the conditions of the exception.",
"By way of example, the Committee shall establish any Performance Goal associated with such an Award by the time within the Performance Period required for such exception, and the payment terms for such an Award shall conform to the requirements of the exception. (d) Discretion. The Committee shall have no discretion to increase the amount of an outstanding Award but may reserve discretion to decrease the amount of an outstanding Award or the extent to which it is exercisable or payable. (e) Provisions Governing All Awards. All Awards will be subject to the following provisions: (i) Transferability.",
"Except for transfers pursuant to Section 8(b)(vi) or Section 9(b)(v), an Award shall not be transferable, other than by will or the laws of descent and distribution. Awards requiring exercise shall be exercisable during the lifetime of a Participant only by the Participant or, in the event the Participant becomes legally incompetent, by the Participant’s guardian or legal representative. (ii) Continued Service Rights. Neither the adoption of the Plan nor the grant of an Award shall confer on a Participant the right to continued Service with the Company, the Partnership, or a Subsidiary, nor shall it interfere with the right of the Company, the Partnership, or a Subsidiary to terminate a Participant’s Service at any time for any reason, with or without Cause. 10 -------------------------------------------------------------------------------- (f) Prohibition on Repricing of Options and Stock Appreciation Rights. Except for adjustments pursuant to Section 14, the exercise price of an Option or a Stock Appreciation Right may not be repriced. For purposes of this Section 7(f), repricing means any of the following or any other action that has the same effect: (i) reduction of the exercise price after the grant of the Option or Stock Appreciation Right; (ii) any other action that is treated as a repricing under generally accepted accounting principles; or (iii) cancellation of an Option or Stock Appreciation Right when its exercise price exceeds the Fair Market Value of the underlying Common Shares, in exchange for cash or another Option, Stock Appreciation Right, or other Award, unless the cancellation and exchange occur in connection with a merger, acquisition, spin-off, or other similar corporate transaction.",
"(g) Misconduct. Should the Committee determine that a Participant has committed Misconduct, then the Participant shall forfeit all rights under outstanding Awards and all further benefits under or attributable to the Plan, so neither the Participant nor his estate, successors, or beneficiaries shall be entitled to exercise outstanding Options and Stock Appreciation Rights; become vested in Restricted Shares, Restricted Share Units, Profits Interest Units, Dividend Equivalents, or other Awards; be paid any Shares or amounts remaining to be paid upon settlement of an Award or due under a deferred payment arrangement with respect to an Award; or otherwise be entitled to any further benefit under or attributable to the Plan, any Award, or any Award Agreement. Before making such a determination, the Committee shall give the Participant a reasonable opportunity to be heard.",
"(h) Recoupment of Awards. (i) The Committee may provide in an Award Agreement or in a policy applicable to an Award under this Plan that, under conditions specified in the Award Agreement or policy, the Participant shall forfeit all rights under the Award and all further benefits under or attributable to the Award or the Plan, and the Participant shall be obliged to pay back or return to the Company amounts or Shares previously paid, distributed, or vested under the Award, including dividends and Dividend Equivalents.",
"Such conditions may include, by way of illustration and not by way of limitation, the occurrence of an error in financial statements that results in the payment of a greater amount of performance-based compensation than would have been paid based on correct financial statements. (ii) All Awards (including any proceeds, gains, or other economic benefit actually or constructively received by the Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the provisions of any claw-back policy implemented by the Company, including without limitation, any claw-back policy adopted to comply with the requirements of applicable law, including 11 -------------------------------------------------------------------------------- without limitation the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder, to the extent set forth in such claw-back policy and/or in the applicable Award Agreement. (iii) This Section 7(h) and Section 7(g) shall be construed independently of each other; one shall not limit the application of the other.",
"(i) Share Issuance/Book Entry. Notwithstanding any provision of the Plan to the contrary, the ownership of the Common Shares issued under the Plan may be evidenced in such a manner as the Committee, in its discretion, deems appropriate, including, without limitation, book-entry or direct registration or the issuance of one or more certificates. 8. Options. (a) Option Grants. The Company shall grant Options to Participants under the Plan in such number, upon such terms, and at such times as the Committee shall determine. (b) Terms of Options. The Award Agreement for an Option shall set forth such terms and conditions as the Committee shall determine and as are consistent with the Plan, including the following: (i) Exercise Price.",
"The Committee shall determine the exercise price of each Common Share subject to an Option, which exercise price shall not be less than the Fair Market Value of a Common Share on the date the Option is granted; provided, however, that the Committee may designate an exercise price less than the Fair Market Value of a Common Share on the date of grant if the Option is granted upon assumption of, in substitution for, a stock option in connection with the Distribution or previously granted by an entity that is acquired by or merged with the Company or an affiliate. (ii) Exercise Period. An Option may be exercised in whole or in part from time to time during such period as the Award Agreement shall specify, provided that no Option shall be exercisable more than ten (10) years after the date of the grant of the Option.",
"(iii) Payment of Price. The exercise price of each Share as to which an Option is exercised must be paid in full at the time of exercise. The Committee may, in its discretion, provide in an Award Agreement that payment of the exercise may be made: (A) in cash; (B) by tender of Common Shares owned by the Participant valued at Fair Market Value as of the date of exercise; (C) in Common Shares otherwise issuable to the Participant upon exercise of the Option valued at Fair Market Value as of the date of exercise (“net exercise”); (D) in such other form of consideration as the Committee deems appropriate; or 12 -------------------------------------------------------------------------------- (E) in a combination of cash, Shares (whether then owned or issuable on exercise), and such other consideration as the Committee deems appropriate.",
"(iv) Conditions on Exercise. An Option shall be exercisable at such times and subject to such restrictions and conditions as the Committee shall determine. The Committee may in its discretion accelerate or waive any condition applicable to the exercise of an Option. (v) Termination of Service. The Award Agreement shall specify whether and, if so, the extent to which an Option shall remain exercisable after the termination of the Participant’s Service, whether by death or otherwise, provided that nothing in this Section 8(b)(v) shall authorize the exercise of an Option later than ten (10) years after the date of the grant of the Option. (vi) Family Transfers. The Committee may, in the original Award Agreement or an amendment thereto, specify that a Participant may transfer, not for value, all or part of a Nonstatutory Stock Option to any Family Member. For the purpose of this Section 8(b)(vi), a “not for value” transfer is a transfer which is (A) a gift; (B) a transfer under a domestic relations order in settlement of marital property rights; or (C) unless applicable laws do not permit such transfer, a transfer to an entity in which more than fifty percent (50%) of the voting interests are owned by Family Members (and/or the Participant) in exchange for an interest in such entity. Following a transfer under this Section 8(b)(vi), any such Nonstatutory Stock Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to such transfer (including without limitation the provisions of Section 8(b)(v) relating to termination of Service as applied with respect to the original Participant), and Shares acquired pursuant to the Nonstatutory Stock Option shall be subject to the same restrictions with respect to transfer of such Shares as would have applied to the Participant.",
"Subsequent transfers of transferred Nonstatutory Stock Options shall be prohibited except to Family Members of the original Participant in accordance with this Section 8(b)(vi) or by will or the laws of descent and distribution. (vii) No Voting or Dividend Rights. An Option shall carry with it no voting or dividend or other rights associated with Common Share ownership until the Shares subject thereto are fully paid and issued to such Participant or other Person. In addition, no Dividend Equivalents shall be payable with respect to Options. (viii) Incentive Stock Option or Nonstatutory Stock Option.",
"The Award Agreement for an Option granted to an Employee shall state whether any part of the Option is intended to be an Incentive Stock Option. (c) Additional Terms of Incentive Stock Options. An Incentive Stock Option may be granted only to an Employee of the Company or a subsidiary (within the meaning of Code section 424) and shall be subject to the following additional terms and conditions: (i) 10 Percent Shareholder. The exercise price of each Common Share subject to an Incentive Stock Option granted to an Employee who, at the time the Option is granted, owns (directly and within the meaning of Code section 424(d)) Shares possessing more than ten percent (10%) of the combined voting power of all classes of Shares of the Company, 13 -------------------------------------------------------------------------------- shall not be less than one hundred ten percent (110%) of the Fair Market Value of a Share on the date the Option is granted, and the Option shall not be exercisable more than five (5) years after the date of grant. (ii) ISO Limit. To the extent the aggregate Fair Market Value (determined as of the date an Option is granted) of the Common Shares for which an Employee is granted Options designated as Incentive Stock Options first exercisable in any calendar year (under this Plan and under all plans of the Company and its Subsidiaries) exceeds one hundred thousand dollars ($100,000), the Option or the lesser excess part shall be treated as a Nonstatutory Stock Option.",
"(iii) Disqualified Disposition. If a Participant disposes of Common Shares acquired pursuant to the exercise of an Incentive Stock Option in a disqualifying disposition within the time periods identified in Code section 422, the Participant shall notify the Company of such disposition and provide the Company with information as to the date of disposition, sales price, number of Shares involved, and any other information about the disposition that the Company may reasonably request. 9.",
"Stock Appreciation Rights. (a) Grant of Stock Appreciation Rights. A Stock Appreciation Right shall entitle a Participant to receive from the Company, on the exercise date of the SAR, with respect to each Share for which the SAR is exercised, an amount equal to any excess of the Fair Market Value of a Share on the exercise date over the exercise price of the SAR. The Company shall grant SARs to Participants under the Plan in such number, upon such terms, and at such times as the Committee shall determine. (b) Terms of Stock Appreciation Rights. The Award Agreement for a Stock Appreciation Right shall set forth such terms and conditions as the Committee shall determine and as are consistent with the provisions of the Plan, including the following: (i) Exercise Price. The Committee shall determine the exercise price of each Common Share subject to the Stock Appreciation Right, which price shall not be less than the Fair Market Value of a Common Share on the date the SAR is granted; provided, however, that the Committee may designate an exercise price less than the Fair Market Value of a Common Share on the date of grant if the SAR is granted upon assumption of, or in substitution for, a stock appreciation right in connection with the Distribution or previously granted by an entity that is acquired by or merged with the Company or an affiliate. (ii) Exercise Period.",
"A Stock Appreciation Right may be exercised in whole or in part from time to time during such period as the Award Agreement shall specify, provided that no SAR shall be exercisable more than ten (10) years after the date of the grant of the SAR. (iii) Conditions on Exercise. A Stock Appreciation Right shall be exercisable at such times and subject to such restrictions and conditions as the Committee shall determine. The Committee may in its discretion accelerate or waive any condition applicable to the exercise of a SAR. 14 -------------------------------------------------------------------------------- (iv) Termination of Service. The Award Agreement shall specify whether and, if so, the extent to which a Stock Appreciation Right shall remain exercisable after the termination of the Participant’s Service, whether by death or otherwise, provided that nothing in this Section 9(b)(iv) shall authorize the exercise of a SAR later than ten (10) years after the date of the grant of the SAR. (v) Family Transfers.",
"The Committee may, in the original Award Agreement or an amendment thereto, specify that a Participant may transfer, not for value, all or part of a Stock Appreciation Right to any Family Member. For the purpose of this Section 9(b)(v), a “not for value” transfer is a transfer which is (A) a gift; (B) a transfer under a domestic relations order in settlement of marital property rights; or (C) unless applicable laws do not permit such transfer, a transfer to an entity in which more than fifty percent (50%) of the voting interests are owned by Family Members (and/or the Participant) in exchange for an interest in such entity.",
"Following a transfer under this Section 9(b)(v), any such SAR shall continue to be subject to the same terms and conditions as were applicable immediately prior to such transfer (including without limitation the provisions of Section 9(b)(iv) relating to termination of Service as applied with respect to the original Participant), and Shares acquired pursuant to the SAR shall be subject to the same restrictions with respect to transfer of such Shares as would have applied to the Participant. Subsequent transfers of transferred SARs shall be prohibited except to Family Members of the original Participant in accordance with this Section 9(b)(v) or by will or the laws of descent and distribution.",
"(vi) No Voting or Dividend Rights. A SAR shall carry with it no voting or dividend or other rights associated with Common Share ownership until, if the SAR is fully or partially settled in Shares pursuant to Section 9(c), the Shares subject thereto are fully issued to such Participant or other Person. In addition, no Dividend Equivalents shall be payable with respect to SARs. (c) Settlement of Stock Appreciation Rights. On the exercise date of a Stock Appreciation Right, the Company shall settle the SAR, to the extent exercised, by payment of the amount due in the form of cash, Common Shares valued at their Fair Market Value on the exercise date, or a combination of cash and Shares, as the Committee may determine. 10. Restricted Shares. (a) Grant of Restricted Shares. The Company shall grant Restricted Shares to Participants under the Plan at such times, in such numbers, and upon such terms as the Committee shall determine.",
"(b) Terms of Restricted Shares. The Award Agreement for a grant of Restricted Shares shall set forth such terms, conditions, restrictions, and limits on the Restricted Shares as the Committee shall determine and as are consistent with the provisions of the Plan, including the following: (i) Conditions on Vesting. The Participant’s interest in Restricted Shares shall be forfeitable when the Award is granted. In the Award Agreement, the Committee shall prescribe conditions that must be satisfied and the time by which, or time period during which, the conditions must be satisfied, in order for the Participant’s interest to become vested. The conditions may include one or more of the following: (A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period, 15 -------------------------------------------------------------------------------- (B) the continuance of the Participant’s Service for a specified period, or (C) the satisfaction of other specified conditions.",
"The Award Agreement may provide that the extent of the Participant’s vested interest shall be determined by the extent to which a condition is satisfied. The limited period of time provided for the satisfaction of the conditions on an Award shall be referred to as the “Restricted Period.” (ii) Vesting. Upon the satisfaction, within the Restricted Period, of the conditions established by the Committee, or as provided in Section 10(b)(iii), the Participant’s interest in the Restricted Shares shall become vested to the extent provided in the Award Agreement; provided, however, Restricted Shares granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made.",
"The restrictions applicable to those vested Restricted Shares shall lapse at that time, and the Company shall deliver evidence of ownership of the vested Shares, consistent with Section 7(i), to the Participant or the Participant’s estate or the Person to whom the Participant’s rights are transferred by will or under the laws of descent and distribution, as the case may be, free of all restrictions, subject to the satisfaction of the Company’s withholding obligations as described in Section 18(c). (iii) Accelerated Vesting. The Committee may provide in an Award Agreement that upon the termination of the Participant’s Service during the Restricted Period by reason of death, Permanent Disability, retirement, or any other specified termination of Service, or upon the consummation of a Change in Control, the conditions and restrictions on all or a portion of the Restricted Shares shall lapse, and the Participant’s interest in those Shares shall become vested.",
"(iv) Forfeiture. Except as provided by the Committee in accordance with Section 10(b)(iii), the Participant shall forfeit Restricted Shares upon the expiration of the Restricted Period, to the extent the conditions prescribed by the Committee have not been satisfied. Upon such a forfeiture, all of the Participant’s interest in the forfeited Restricted Shares shall automatically revert to the Company. (v) Registration; Restricted Share Certificate. Pursuant to Section 7(i), to the extent that ownership of Restricted Shares is evidenced by a book-entry registration or direct registration, such registration shall be notated to evidence the restrictions imposed on such Award of Restricted Shares under the Plan and the applicable Award Agreement. Subject to 16 -------------------------------------------------------------------------------- Section 7(i) and the immediately following sentence, the Company may issue, in the name of each Participant to whom Restricted Shares have been granted, certificates representing the total number of Restricted Shares granted to the Participant, as soon as reasonably practicable after the date of grant of such Restricted Shares. The Committee may provide in an Award Agreement with respect to an Award of Restricted Shares that either (A) the Company shall hold such certificates for the Participant’s benefit until such time as the Restricted Shares are forfeited to the Company or the restrictions applicable thereto lapse and such Participant shall deliver a stock power to the Company with respect to each certificate, or (B) such certificates shall be delivered to the Participant; provided, however, that such certificates shall bear a legend or legends that comply with the applicable securities laws and regulations and make appropriate reference to the restrictions imposed on such Restricted Shares under the Plan and the applicable Award Agreement.",
"(vi) Voting and Dividend Rights. Unless otherwise provided by the Committee in the Award Agreement, the Participant to whom Restricted Shares have been granted shall be entitled, during the Restricted Period, to vote those Shares and to receive the dividends payable with respect to those Shares. If the vesting of an Award of Restricted Shares is conditioned on the satisfaction of Performance Goals or other performance-related conditions, dividends on such Restricted Shares shall be deferred and held in escrow or deemed reinvested in additional Restricted Shares during the Restricted Period and shall not vest unless the Performance Goals or other performance-related conditions for the underlying Award of Restricted Shares are achieved, and if such Performance Goals or other performance-related conditions are not achieved, the Participant shall promptly forfeit such deferred or reinvested dividend payments. 11. Restricted Share Units.",
"(a) Grant of Restricted Share Units. A Restricted Share Unit shall entitle a Participant to a Share, the Fair Market Value of a Share in cash, or a combination of the two, at a future date, subject to the satisfaction of any terms and conditions specified by the Committee. The Company shall grant Restricted Share Units to Participants under the Plan at such times, in such numbers, and upon such terms as the Committee shall determine. (b) Terms of Restricted Share Units. The Award Agreement for Restricted Share Units shall set forth such terms, conditions, restrictions, and limits on the RSUs as the Committee shall determine and as are consistent with the provisions of the Plan, including the following: (i) Conditions on Vesting.",
"The Participant’s interest in an Award of Restricted Share Units shall be forfeitable when the Award is granted. In the Award Agreement, the Committee shall prescribe conditions that must be satisfied and the time by which, or time period during which, the conditions must be satisfied, in order for the Participant’s interest to become vested. The conditions may include one or more of the following: (A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period, 17 -------------------------------------------------------------------------------- (B) the continuance of the Participant’s Service for a specified period, or (C) the satisfaction of other specified conditions.",
"The Award Agreement may provide that the extent of the Participant’s vested interest shall be determined by the extent to which a condition is satisfied. The limited period of time provided for the satisfaction of the conditions on an Award shall be referred to as the “Restricted Period.” (ii) Vesting. Upon the satisfaction, within the Restricted Period, of the conditions established by the Committee, or as provided in Section 11(b)(iii), the Participant’s interest in the Restricted Share Units shall become vested to the extent provided in the Award Agreement; provided, however, Restricted Share Units granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made.",
"(iii) Accelerated Vesting. The Committee may provide that upon the termination of the Participant’s Service during the Restricted Period by reason of death, Permanent Disability, retirement, or any other specified termination of Service, or upon the consummation of a Change in Control, the conditions and restrictions on all or a portion of the Restricted Share Units shall lapse, and the Restricted Period with respect to those RSUs shall expire. (iv) Forfeiture. Except as provided by the Committee in accordance with Section 11(b)(iii), the Participant shall forfeit Restricted Share Units upon the expiration of the Restricted Period or upon an earlier termination of Service, to the extent the conditions prescribed by the Committee have not been satisfied. Upon such a forfeiture, all of the Participant’s interest in the forfeited Restricted Share Units shall automatically revert to the Company.",
"(v) No Voting or Dividend Rights. A Restricted Share Unit shall carry with it no voting or dividend or other rights associated with Common Share ownership. (vi) Dividend Equivalents. Notwithstanding Section 11(b)(v), and subject to Section 12(b), the Committee may but need not provide that a bookkeeping account established for a Participant shall be credited with an amount equivalent to the amount of dividends that would be payable with respect to a number of Shares equal to the number of Restricted Share Units awarded to the Participant. The Committee may provide for the crediting of interest on any Dividend Equivalents credited to a Participant’s account or may provide that the Dividend Equivalent credit be adjusted for hypothetical investment experience in such manner as the Committee may determine. If the Participant forfeits his or her interest in a Restricted Share Unit, the Participant shall simultaneously forfeit any Dividend Equivalents (as adjusted) attributable to those Restricted Share Units.",
"18 -------------------------------------------------------------------------------- (c) Payment of Vested Restricted Share Units. (i) Payment of vested Restricted Share Units and other amounts credited to a Participant’s account shall be made at such time or times after the expiration of the Restricted Period as the Committee may establish. The Committee may but need not provide that a Participant may elect to defer payment until such time or times as the Committee may allow. The Committee may provide for payments in lump sums or installments or both. The Committee shall establish procedures for its establishment of the time of payment and for the form and timing of a Participant’s deferral and payment elections. All elections shall conform to the Committee’s procedures.",
"The Committee’s procedures shall conform to the requirements of Code section 409A. (ii) The Committee may, in its discretion, change the procedures for elections, change the time to which payment may be deferred, and change the availability of lump sum or installment payments. The Committee may provide that such changes will apply to Restricted Share Units and other amounts already credited to a Participant’s account, with respect to which a Participant may have already made deferral and payment elections, but only to the extent such changes would not cause the Plan to fail to conform to the requirements of Code section 409A. (iii) The Company shall not establish any special fund with respect to a Participant’s account. Any credit entries made to a Participant’s account shall constitute a mere promise by the Company to make payments to the Participant, subject to and in accordance with the Plan, from the general assets of the Company, when the payments become due. (iv) To the extent that any Person acquires a right to receive payments from the Company under this Plan, such right shall be no greater than the right of any unsecured general creditor of the Company.",
"12. Other Awards. (a) General. The Committee may determine, subject to the terms of the Plan, that the Company shall grant Awards that are not described in Sections 8 through 11, but that provide for the issuance of Common Shares, or that are denominated in or measured by the Fair Market Value of a Share, or that provide for payment in the form of Shares, rather than cash under any Company bonus or incentive program. The Committee shall determine the terms and conditions of any such other Awards and the Participants to whom and the numbers in which such other Awards shall be granted.",
"The Committee may condition the exercisability, vesting, and payment of such other Awards upon the satisfaction of Performance Goals or other performance-based objectives. (b) Dividend Equivalents. Subject to Section 8(b)(vii) and Section 9(b)(vi), Dividend Equivalents may be granted by the Committee, either alone or in tandem with another Award, based on dividends declared on the Common Shares, to be credited as of dividend payment dates during the period between the date the Dividend Equivalents are granted to a Participant and the date such Dividend Equivalents terminate or expire, as determined by the Committee. Such Dividend Equivalents shall be converted to cash or additional Shares by such formula, at such time, and subject to such limitations as may be determined by the Committee. Dividend 19 -------------------------------------------------------------------------------- Equivalents with respect to Shares covered by an Award whose vesting is conditioned on the satisfaction of a Performance Goal, other performance-related objectives, or Service vesting shall only be paid out to the Participant at the same time or times and to the same extent that such vesting conditions are subsequently satisfied and the Award vests with respect to such Shares. Nothing in this Section 12(b) or otherwise under the Plan shall be construed to prohibit the payment of distributions from the Partnership in respect of Profits Interests Units as provided for by the Committee in the Award Agreement for such Profits Interests Units (or which otherwise may apply to Awards of Profits Interest Units under the Partnership Agreement).",
"(c) Profits Interest Units (LTIP Units). (i) The Committee is authorized to grant Profits Interest Units in such amount and subject to such terms and conditions as may be determined by the Committee; provided, however, that Profits Interest Units may only be issued to a Participant for the performance of services to or for the benefit of the Partnership (A) in the Participant’s capacity as a partner of the Partnership, (B) in anticipation of the Participant becoming a partner of the Partnership, or (C) as otherwise determined by the Committee, provided that the Profits Interest Units are intended to constitute “profits interests” within the meaning of the Code, including, to the extent applicable, Revenue Procedure 93-27, 1993-2 C.B. 343, and Revenue Procedure 2001-43, 2001-2 C.B.",
"191. (ii) The Committee shall specify the conditions and dates upon which the Profits Interest Units shall vest and become nonforfeitable. The conditions may include one or more of the following: (A) the satisfaction of specified Performance Goals or other performance-based objectives by a specified time or during a specified period, (B) the continuance of the Participant’s Service for a specified period, or (C) the satisfaction of other specified conditions. Notwithstanding the foregoing, Profits Interest Units granted to Employees shall become vested over a period of not less than three (3) years (or, in the case of vesting based upon the attainment of Performance Goals or other performance-based objectives, over a period of not less than one year measured from the commencement of the period over which performance is evaluated) following the date the Award is made; provided further, that the Committee may provide that such vesting restrictions may lapse or be waived upon the Participant’s death, Permanent Disability, retirement, or any other specified termination of Service or upon the consummation of a Change in Control.",
"Profits Interest Units shall be subject to the terms and conditions of the Partnership Agreement and such other restrictions, including restrictions on transferability, as the Committee may impose. These restrictions may lapse separately or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Award or thereafter. 13. Awards to Non-Employee Directors. Notwithstanding any other provision of the Plan, the grant of any Award to a Non-Employee Director shall be made by the Board only pursuant to a written nondiscretionary formula established by the Board (a “Non-Employee Director Compensation Policy”).",
"A Non-Employee Director Compensation Policy shall set forth the type of Awards to be granted to Non-Employee Directors; the number of Shares to be subject to Awards to be granted to Non-Employee Directors; the conditions on which such Awards shall be granted, become exercisable, payable, and expire; and such other terms and conditions as the Board determines in its discretion. Awards granted to Non-Employee Directors shall be subject 20 -------------------------------------------------------------------------------- to all of the limits set forth in this Plan. Notwithstanding any provision to the contrary in the Plan or in a Non-Employee Director Compensation Policy, the maximum aggregate grant date fair value of one or more Awards granted to a Non-Employee Director during any calendar year shall be one million dollars ($1,000,000). 14.",
"Required Adjustments in Authorized Shares. In the event of any change in corporate capitalization, such as a stock split, or a corporate transaction, such as a merger, consolidation, separation, including a spin off, or other distribution of stock or property of the Company, any reorganization (whether or not such reorganization comes within the definition of such term in Code section 368), or any partial or complete liquidation of the Company, in each case following the Effective Date, such adjustment shall be made in the number and class of Shares available for Awards under Section 5, in the number of Shares subject to outstanding Awards, in the exercise or purchase price under outstanding Awards, and in the limits on Awards and the issuance of Shares set forth in Section 5, as determined by the Committee to be appropriate and equitable to prevent dilution or enlargement of the benefits available under the Plan and of the rights of Participants; provided, however, that the number of Shares subject to an Award shall always be a whole number.",
"In a stock-for-stock acquisition of the Company, the Committee may, in its discretion, substitute securities of another issuer for any Shares subject to outstanding Awards. Except as expressly provided in this Section 14, the issuance by the Company of shares of any class or securities convertible into shares of any class, for cash, property, labor, or services, upon direct sale, upon the exercise of rights or warrants, or upon the conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect, and no adjustment shall be made with respect to, the number of Shares subject to Awards previously granted or the exercise or purchase price per Share under outstanding Awards. 15. Change in Control. The following provisions shall apply in the event of a Change in Control following the Effective Date: (a) If and to the extent that outstanding Awards under the Plan (i) are assumed by the successor corporation (or an affiliate of the successor) or continued or (ii) are replaced with equity awards that preserve the existing value of the Awards at the time of the Change in Control and provide for subsequent payout in accordance with a vesting schedule and Performance Goals or other performance-based objectives, as applicable, that are the same or more favorable to the Participants than the vesting schedule and Performance Goals or other performance-based objectives applicable to the Awards, then all such Awards or such substitutes for them shall remain outstanding and be governed by their respective terms and the provisions of the Plan subject to Section 15(d).",
"(b) If and to the extent that outstanding Awards under the Plan are not assumed, continued, or replaced in accordance with Section 15(a), then upon the Change in Control, the Committee may, in its sole discretion, provide that: (i) outstanding Options and SARs shall immediately vest and become exercisable; and (ii) the restrictions and other conditions applicable to outstanding Restricted Shares, Restricted Share Units, and other Share-based 21 -------------------------------------------------------------------------------- Awards, including vesting requirements, shall immediately lapse, and any Performance Goals or other performance-based objectives relevant to such Awards shall be deemed to have been achieved at the target performance level, such that such Awards shall be free of all restrictions, fully vested, and settled or payable immediately in accordance with their terms or, if later, as of the earliest permissible date under Code section 409A (collectively, the “Change in Control Treatment”). Notwithstanding anything in the Plan to the contrary, unless the Change in Control is a change in the ownership or effective control or of ownership of a substantial portion of the assets of the Company (within the meaning of Code section 409A), a Change in Control shall not accelerate the time of payment of Restricted Share Units and other Awards and amounts payable under the Plan that are deferred compensation subject to Code section 409A.",
"(c) In addition, if and to the extent that outstanding Awards under the Plan are not assumed, continued, or replaced in accordance with Section 15(a), then in connection with the Committee determination in Section 15(b) above, the Committee may, in its sole discretion, provide for cancellation of such outstanding Awards at the time of the Change in Control in which case a payment of cash, property, or a combination of cash and property shall be made to each such Participant upon the consummation of the Change in Control that is determined by the Committee in its sole discretion and that is at least equal to the excess (if any) of the value of the consideration that would be received in such Change in Control by the holders of the Company’s securities relating to such Awards over the exercise or purchase price (if any) for such Awards (except that, in the case of an Option or SAR, such payment shall be limited as necessary to prevent the Option or SAR from being subject to Code section 409A).",
"(d) If and to the extent that (i) outstanding Awards are assumed, continued, or replaced in accordance with Section 15(a) above and (ii) a Participant’s Service is terminated by the Company (or a successor corporation or an affiliate of such successor) for any reason other than Cause or by such Participant for Good Reason, in each case, within the two (2)-year period commencing on the Change in Control, then, as of the date of such Participant’s termination, the Change in Control Treatment set forth in Section 15(b) above shall automatically apply to all assumed or replaced Awards of such Participant then outstanding. (e) Outstanding Options or SARs that are assumed, continued, or replaced in accordance with Section 15(a) may be exercised by the Participant in accordance with the applicable terms and conditions of such Award as set forth in the applicable Award Agreement or elsewhere; provided, however, that Options or SARs that become exercisable in accordance with Section 15(d) may be exercised until the expiration of the original full term of such Option or SAR notwithstanding the other original terms and conditions of such Award.",
"16. Amendment of Awards. Subject to Section 7(f) (prohibition against repricing of Options and Stock Appreciation Rights), the Committee may at any time unilaterally amend any outstanding Award to the extent the Committee determines necessary or desirable; provided, however, that an amendment that would be adverse to the interests of the Participant or, with respect to an Incentive Stock Option, that would prevent the Option from qualifying as an ISO, shall not be effective without the holder’s consent. 17. Term; Amendment and Termination of Plan. The Plan shall terminate automatically on the day before the tenth (10th) anniversary of the Effective Date, unless terminated earlier in 22 -------------------------------------------------------------------------------- accordance with this Section 17. Notwithstanding anything herein to the contrary, no ISO shall be granted under the Plan after the tenth (10th) anniversary of the Board’s initial adoption of the Plan. The Board may amend, suspend, or terminate the Plan or any portion of the Plan at any time; provided no amendment may be made without shareholder approval if such approval is required by applicable law or the requirements of an applicable stock exchange, or if such amendment would allow the grant of Options or Stock Appreciation Rights at an exercise price below Fair Market Value at the date of grant, contrary to the provisions of Section 8(b)(i) and Section 9(b)(i); provided further that no such amendment, suspension, or termination shall adversely affect the rights under any outstanding Award without the holder’s consent.",
"18. Miscellaneous. (a) Beneficiary Designation. Each Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in case of the Participant’s death before the Participant receives any or all of such benefit. Each such designation shall revoke all prior designations by the same Participant with respect to such benefit, shall be in a form prescribed by the Company, and shall be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. In the absence of any such designation, any benefits remaining payable under the Plan at the Participant’s death shall be paid when due to the Participant’s estate unless otherwise provided in the Award Agreement. (b) Deferrals. Pursuant to the applicable requirements of Code section 409A, the Committee may permit or require a Participant to defer receipt of the payment of cash or the delivery of Shares that would otherwise be due pursuant to the lapse or waiver of restrictions with respect to Restricted Shares or Restricted Share Units, or in connection with any other Awards. If any such deferral is required or permitted, the Committee shall establish rules and procedures for such deferrals in compliance with the requirements of Code section 409A.",
"(c) Satisfaction of Tax Liabilities. (i) The Company, the Partnership, and its Subsidiaries shall have the power and the right to deduct or withhold, or to require a Participant to remit to the Company, the Partnership, or a Subsidiary, an amount that the Company, the Partnership, or a Subsidiary reasonably determines to be required to comply with federal, state, local, or foreign tax withholding requirements with respect to the vesting, settlement, or exercise of, or payment with respect to, an Award. The Company, the Partnership, or a Subsidiary may require the payment of such taxes before Shares or cash deliverable pursuant to such Award are transferred to the holder of the Award. (ii) The Committee may allow a Participant to elect to pay the Company’s, the Partnership’s, or a Subsidiary’s minimum required statutory withholding tax obligation with respect to an Award to be settled in Shares by the withholding of Shares from the total number of Shares deliverable pursuant to the Award, or by delivering to the Company a sufficient number of previously-acquired Shares, in each case in accordance with rules and procedures established by the Committee. Previously-acquired Shares delivered in payment for such taxes may be subject to such conditions as the Committee may require. The value of each Share withheld, or 23 -------------------------------------------------------------------------------- delivered, shall be the Fair Market Value of a Share on the date on which the amount of tax to be withheld is to be determined.",
"The Committee, subject to its having considered the applicable accounting impact of any such determination, has full discretion to allow Participants to satisfy, in whole or in part, any additional income, employment and/or other applicable taxes payable by them with respect to an Award by electing to have the Company withhold from the Common Shares otherwise issuable or deliverable to, or that would otherwise be retained by, a Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, Common Shares having an aggregate Fair Market Value that is greater than the applicable minimum required statutory withholding liability (but such withholding may in no event be in excess of the maximum statutory withholding amount(s) in a Participant’s relevant tax jurisdictions).",
"(d) No Alienation. Except to the extent required by law, the right of a Participant or beneficiary to payment under this Plan shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant or beneficiary. 19. Restrictions on Issuance of Common Shares. (a) General. Should the Board of Directors determine that the listing, registration, or qualification of Common Shares upon any securities exchange or under any state or federal law or the consent or approval of any governmental regulatory body is necessary or desirable as a condition to or in connection with the issuance or delivery of Common Shares under the Plan, no such Common Shares shall be issued or delivered unless such listing, registration, qualification, consent, or approval has been effected or obtained free of any conditions not acceptable to the Board of Directors.",
"The Company shall not be required to offer, sell, or issue any Common Shares under any Award, whether pursuant to the exercise of an Option or SAR or otherwise, if the offer, sale, or issuance of such Shares would constitute a violation by the Participant, any other individual or entity exercising an Option or SAR, or the Company, the Partnership, or a Subsidiary of any provision of applicable laws, including without limitation any federal or state securities laws or regulations. (b) Legends.",
"The certificates representing Common Shares issued by the Company under the Plan may bear a legend describing any restrictions on resale of such Common Shares under applicable securities laws, and stop transfer orders with respect to such certificates may be entered on the Company’s stock transfer records. 20. Construction. The Plan shall be construed in accordance with the law of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan, the Awards, and any Award Agreement to the substantive laws of any other jurisdiction. With respect to Options granted under the Plan that are intended to qualify as Incentive Stock Options, the terms of the Plan and of each Incentive Stock Option granted pursuant to the Plan shall be construed to give effect to such intention.",
"With respect to Awards granted under the Plan that are intended to qualify for the exception under Code section 162(m) for performance-based pay, the terms of the Plan and the Award Agreement shall be construed and administered to give effect to such intention, unless the Committee determines to waive the application of such exception. With respect to Awards granted under the Plan that provide for the payment of deferred compensation (within the 24 -------------------------------------------------------------------------------- meaning of Code section 409A), the terms of the Plan and the Award Agreement shall be construed to conform to the requirements of Code section 409A for the deferral (until payment) of the inclusion of the compensation in gross income. 21. Section 83(b) Election. No Participant may make an election under Code section 83(b) with respect to any Award under the Plan without the consent of the Committee, which the Committee may grant or withhold in its sole discretion.",
"If, with the consent of the Committee, a Participant makes an election under Code section 83(b) to be taxed with respect to an Award as of the date of transfer of the Award, rather than as of the date or dates upon which the Award would otherwise be taxable under Code section 83(a), the Participant shall be required to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service.",
"22. Grant of Awards to Certain Employees or Consultants. The Company, the Partnership, or any Subsidiary may provide, through the establishment of a formal written policy or otherwise, for the method by which Shares or other securities and/or payment therefor may be exchanged or contributed among such entities, or may be returned upon any forfeiture of Shares or other securities by the Participant, for the purpose of ensuring that the relationship between the Company, the Partnership, and any Subsidiary remains at arm’s-length.",
"23. REIT Status. The Plan shall be interpreted and construed in a manner consistent with the Company’s status as a real estate investment trust (REIT). No Award shall be granted or awarded, and with respect to any Award granted under the Plan, such Award shall not vest, be exercisable, or be settled: (a) to the extent that the grant, vesting, exercise, or settlement of such Award could cause the Participant or any other Person to be in violation of the Common Stock Ownership Limit (as defined in the Company’s Articles of Amendment and Restatement, dated October 4, 2016, as it may be amended and supplemented from time to time) or any other provision of the Company’s charter; or (b) if, in the discretion of the Committee, the grant, vesting, exercise, or settlement of such Award could impair the Company’s status as a REIT. * * * 25"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Name: COMMISSION REGULATION (EC) No 876/95 of 20 April 1995 fixing the aid for cotton Type: Regulation Subject Matter: plant product; cooperation policy Date Published: nan
21 . 4. 95No L 89/24 I EN I Official Journal of the European Communities COMMISSION REGULATION (EC) No 876/95 of 20 April 1995 fixing the aid for cotton THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to the Act of Accession of Greece, and in particular paragraphs 3 and 10 of Protocol 4 thereto, as amended by the Act of Accession of Spain and Portugal, and in particular Protocol 14 annexed thereto, and Commission Regulation (EEC) No 4006/87 ('), Having regard to Council Regulation (EEC) No 2169/81 of 27 July 1981 laying down the general rules for the system of aid for cotton (2), as last amended by Regulation (EEC) No 1554/93 (3), and in particular Article 5 ( 1 ) thereof, Whereas the amount of the additional aid referred to in Article 5 ( 1 ) of Regulation (EEC) No 2169/81 was fixed by Commission Regulation (EC) No 195/95 (4), as last amended by Regulation (EC) No 81 5/95 (^ ; Whereas it follows from applying the rules and other provisions contained in Regulation (EC) No 195/95 to the information at present available to the Commission that the amount of the aid at present in force should be altered as shown in Article 1 to this Regulation, HAS ADOPTED THIS REGULATION : Article 1 The aid for unginned cotton provided for in Article 5 of Regulation (EEC) No 2169/81 shall be ECU 45,464 per 100 kilograms. Article 2 This Regulation shall enter into force on 21 April 1995. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 20 April 1995. For the Commission Franz FISCHLER Member of the Commission 0 OJ No L 377, 31 . 12. 1987, p. 49 . 0 OJ No L 211 , 31 . 7. 1981 , p. 2. (3) OJ No L 154, 25. 6. 1993, p. 23. (4) OJ No L 24, 1 . 2. 1995, p. 109. ¥) OJ No L 82, 12. 4. 1995, p. 19. | nan | [
"Name: COMMISSION REGULATION (EC) No 876/95 of 20 April 1995 fixing the aid for cotton Type: Regulation Subject Matter: plant product; cooperation policy Date Published: nan 21 . 4. 95No L 89/24 I EN I Official Journal of the European Communities COMMISSION REGULATION (EC) No 876/95 of 20 April 1995 fixing the aid for cotton THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to the Act of Accession of Greece, and in particular paragraphs 3 and 10 of Protocol 4 thereto, as amended by the Act of Accession of Spain and Portugal, and in particular Protocol 14 annexed thereto, and Commission Regulation (EEC) No 4006/87 ('), Having regard to Council Regulation (EEC) No 2169/81 of 27 July 1981 laying down the general rules for the system of aid for cotton (2), as last amended by Regulation (EEC) No 1554/93 (3), and in particular Article 5 ( 1 ) thereof, Whereas the amount of the additional aid referred to in Article 5 ( 1 ) of Regulation (EEC) No 2169/81 was fixed by Commission Regulation (EC) No 195/95 (4), as last amended by Regulation (EC) No 81 5/95 (^ ; Whereas it follows from applying the rules and other provisions contained in Regulation (EC) No 195/95 to the information at present available to the Commission that the amount of the aid at present in force should be altered as shown in Article 1 to this Regulation, HAS ADOPTED THIS REGULATION : Article 1 The aid for unginned cotton provided for in Article 5 of Regulation (EEC) No 2169/81 shall be ECU 45,464 per 100 kilograms.",
"Article 2 This Regulation shall enter into force on 21 April 1995. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 20 April 1995. For the Commission Franz FISCHLER Member of the Commission 0 OJ No L 377, 31 . 12. 1987, p. 49 . 0 OJ No L 211 , 31 . 7. 1981 , p. 2. (3) OJ No L 154, 25. 6. 1993, p. 23. (4) OJ No L 24, 1 . 2. 1995, p. 109. ¥) OJ No L 82, 12. 4. 1995, p. 19."
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
202 F.2d 150 Rodrigo MORALES Rosario et al., Plaintiffs, Appellants,v.BLYTHE-MILLS COMPANY OF PUERTO RICO, Inc., Defendant, Appellee. No. 4684. United States Court of Appeals First Circuit. February 20, 1953.
Appeal from the United States District Court for the District of Puerto Rico; Clemente Ruiz-Nazario, Judge. Francisco Ponsa-Feliú, San Juan, Puerto Rico, for appellants. A. Castro Fernández, San Juan, Puerto Rico (McConnell & Valdés, San Juan, Puerto Rico, on brief), for appellee. Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges. PER CURIAM.
1 The judgment of the District Court is affirmed on the memorandum by Judge Ruiz-Nazario, 110 F.Supp. 259. | 08-23-2011 | [
"202 F.2d 150 Rodrigo MORALES Rosario et al., Plaintiffs, Appellants,v.BLYTHE-MILLS COMPANY OF PUERTO RICO, Inc., Defendant, Appellee. No. 4684. United States Court of Appeals First Circuit. February 20, 1953. Appeal from the United States District Court for the District of Puerto Rico; Clemente Ruiz-Nazario, Judge. Francisco Ponsa-Feliú, San Juan, Puerto Rico, for appellants. A. Castro Fernández, San Juan, Puerto Rico (McConnell & Valdés, San Juan, Puerto Rico, on brief), for appellee. Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges. PER CURIAM. 1 The judgment of the District Court is affirmed on the memorandum by Judge Ruiz-Nazario, 110 F.Supp. 259."
]
| https://www.courtlistener.com/api/rest/v3/opinions/231101/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Detailed Action 1. This Office Action is responsive to the Amendment filed 01/03/2022. Claims 1, 7 and 13 have been amended. Claims 1-17 are presented for examination. 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 2. The information disclosure statement (IDS) submitted on 01/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Terminal Disclaimer 3. The terminal disclaimer filed on 01/03/2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of the full statutory term of prior patent number 10,848,528 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Allowable Subject Matter 4. Claims 1-17 are allowed.
5. The following is an examiner’s statement of reasons for allowance:
Prior Art NEFF et al. (US 2020/0066414 A1) teaches that while voice only calls may be useful in certain situations, the ability to convert a traditional voice call to a video call by pressing a button during the call to initiate the video call increases the value of the telehealth appointment. For example, during a voice call, the patient wishes to elect a video call and can press a button, the system initiates a video call instantly. Upon pressing said button, the system initiates a video call, wherein the caller can transfer or hang up the voice call and accept the video call (paragraph [0088]). Prior Art SONG et al. (US 2015/0111535 A1) teaches a method and apparatus for providing service based on voice session authentication, wherein when the video call service button 423 of the available services 419 on the user device 401A (caller) is selected, a communication session for a video call service between the user devices 401A and 401B (callee) may be established based on authentication of the user devices 401A and 401B from the voice session (paragraph [0046]). Prior Art Garg et al. (US 10,708,383) teaches a network system provides options within a messaging application for additional communication functionalities. For example, having identified a profile for the sender of a direct digital message, the networking system optionally provides the client device a video-call option for the recipient of the direct digital message to initiate a video call with the sender associated with the second account (col. 4, lines 44-56).
6. 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 clearly labeled “Comments on Examiner’s Statement of Reasons for Allowance”.
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Quang N. Nguyen whose telephone number is (571) 272-3886. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s SPE, Wing Chan, can be reached at (571) 272-7493. The fax phone number for the organization 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.
/QUANG N NGUYEN/Primary Examiner, Art Unit 2441 | 2022-01-30T15:35:10 | [
"Detailed Action 1. This Office Action is responsive to the Amendment filed 01/03/2022. Claims 1, 7 and 13 have been amended. Claims 1-17 are presented for examination. 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 2. The information disclosure statement (IDS) submitted on 01/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Terminal Disclaimer 3. The terminal disclaimer filed on 01/03/2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of the full statutory term of prior patent number 10,848,528 has been reviewed and is accepted. The terminal disclaimer has been recorded. Allowable Subject Matter 4. Claims 1-17 are allowed.",
"5. The following is an examiner’s statement of reasons for allowance: Prior Art NEFF et al. (US 2020/0066414 A1) teaches that while voice only calls may be useful in certain situations, the ability to convert a traditional voice call to a video call by pressing a button during the call to initiate the video call increases the value of the telehealth appointment. For example, during a voice call, the patient wishes to elect a video call and can press a button, the system initiates a video call instantly.",
"Upon pressing said button, the system initiates a video call, wherein the caller can transfer or hang up the voice call and accept the video call (paragraph [0088]). Prior Art SONG et al. (US 2015/0111535 A1) teaches a method and apparatus for providing service based on voice session authentication, wherein when the video call service button 423 of the available services 419 on the user device 401A (caller) is selected, a communication session for a video call service between the user devices 401A and 401B (callee) may be established based on authentication of the user devices 401A and 401B from the voice session (paragraph [0046]). Prior Art Garg et al. (US 10,708,383) teaches a network system provides options within a messaging application for additional communication functionalities. For example, having identified a profile for the sender of a direct digital message, the networking system optionally provides the client device a video-call option for the recipient of the direct digital message to initiate a video call with the sender associated with the second account (col. 4, lines 44-56).",
"6. 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 clearly labeled “Comments on Examiner’s Statement of Reasons for Allowance”. 7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Quang N. Nguyen whose telephone number is (571) 272-3886. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s SPE, Wing Chan, can be reached at (571) 272-7493. The fax phone number for the organization 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.",
"/QUANG N NGUYEN/Primary Examiner, Art Unit 2441"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-30.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. | 11-27-2022 | [
"Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9064027/ | 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 .
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, 2, 4, 5, 7 and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zelkha et al. US 2012/0258182 A1. Zelkha teaches a composition comprising a synergistic combination of lycopene and at least one phytosterol. See abstract. The composition further comprises phytoene and phytofluene, beta-carotene, and tocopherols (vitamin E). See paragraph 0016. Concentration of lycopene ranging from about 2 wt%, and concentration of phytosterol ranging from 5 wt% are found in paragraph 0017. Concentration of phytoene and/or phytofluene ranging between 1.5-3 wt% is found in paragraph 0018. Thus, the ratio between lycopene and phytoene or phytoene and phytoflyene falls within a 1:1 ratio. Response to Arguments Applicant's arguments filed 02/19/2021 have been fully considered but they are not persuasive. Applicant argues that Zelkha ‘182 does not teach both of the concentrations of phytosterols and vitamin E as recited in claim 1. However, Applicant’s attention is called to paragraphs 0022-0023, where Zelkha ‘182 teaches the concentration of phytosterols of at least 2%, and vitamin E in a concentration of 1.5-4%, thus, falls within the claimed ranges. As such the rejection is maintained for at least the above reason.
Claims 1 and 3-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zelkha et al. US 2010/0233256 A1. This rejection has been withdrawn in view of the Amendment filed 02/19/2021.
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.
Claims 1 and 4-12 are rejected under 35 U.S.C. 103 as being unpatentable over Zelkha et al. US 2012/0258182 and Zelkha et al. US 2010/0233256, in view of Zelkha et al. US 2003/0044499 A1. Zelkha ‘182 is relied upon for the reason stated above. Zelkha teaches a composition comprising lycopene in a concentration of between 0.025-5 wt%. See paragraphs 0030-0031. The composition further comprises phytosterols, phytoene and phytofluene, beta-carotene, carnosic acid, and vitamin E. See paragraphs 0020, 0041, 0045-0055. Phytoene and phytofluene are present in a concentration 0.0025-1.25 wt%. See paragraph 0050. Thus, the ratio between lycopene and phytoene or phytoene and phytoflyene can fall within a 1:1 ratio. The claimed amount of vitamin E can be found in paragraph 0055. The Zelkha references do not expressly teach the claimed extracting process. Zelkha ‘499 teaches a process for extracting comprising Pulp contains lipids, carotenoids and other components which are not soluble in water. The aqueous phase obtained from decantation is also called serum and contains water soluble constituents such as polysaccharides, anthocyanines and polyphenols. Part of said water soluble constituents may be of commercial value e.g., anthocyanines and polyphenols. Thus, the serum is further processed to isolate said valuable materials. The pulp is extracted in a multi-stage extracting process, A suitable extracting solvent, preferably selected from among a group comprising of ethyl acetate, iso-propanol, ethanol and acetone or mixtures thereof is added to the pulp in the first extracting stage (FIG. 2, IV) and the pulp is extracted, preferably at a temperature in the range of about 40.degree. C. to 65.degree. C., more preferably about 60.degree. C. The weight ratio between the pulp extract) collected from the extraction stages (FIG. 2, VI) is evaporated (FIG. 2, XI) to obtain oleoresin of 10%-20% zeaxanthin fatty acid diester. The oleoresin is subjected to saponification conditions (FIG. 2, XII) in order to hydrolyze the zeaxanthin diester to obtain zeaxanthin. The saponification is carried out at a temperature of about 70.degree. C. to 80.degree. C. in a mixture containing an aqueous solution of KOH, ethanol and hexane for about 1 hour. Upon hydrolysis of the zeaxanthin diester-containing oleoresin, zeaxanthin crystals precipitate and the mixture is filtered (FIG. 2, XIII). The solid fraction obtained contains about 70% to 90% zeaxanthin. Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to extract tomato using the carotenoid extraction process in view of Zelkha ‘499 with the expect of at least similar result. This is because Zelkha ‘499 teaches the claimed extracting process is known in the art.
Response to Arguments Applicant's arguments filed 02/19/2021 have been fully considered but they are not persuasive.
However, in response to applicant's argument that the ‘499 reference does not teach or suggest a composition comprising lycopene, one or both of phytoene and phytofluene, and phytosterols, and vitamin E, let alone a comprising having the recited concentrations of components of claims 1 and 9, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Here, as mentioned above, under the 102 rejection, Zelkha ‘182 teaches the concentrations that fall within the claimed ranges, namely, phytosterols of at least 2%, and vitamin E in a concentration of 1.5-4%. See paragraphs 0022-0023. Thus, for at least the above reasons, the 103(a) rejection is maintained.
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).
Correspondence Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSAN T TRAN whose telephone number is (571)272-0606. The examiner can normally be reached on Monday-Friday, 8:30 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, ROBERT A. WAX can be reached on 571-272-0623. 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
/SUSAN T TRAN/Primary Examiner, Art Unit 1615 | 2021-04-14T05:34:57 | [
"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 . 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, 2, 4, 5, 7 and 8 are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Zelkha et al. US 2012/0258182 A1. Zelkha teaches a composition comprising a synergistic combination of lycopene and at least one phytosterol. See abstract. The composition further comprises phytoene and phytofluene, beta-carotene, and tocopherols (vitamin E). See paragraph 0016. Concentration of lycopene ranging from about 2 wt%, and concentration of phytosterol ranging from 5 wt% are found in paragraph 0017. Concentration of phytoene and/or phytofluene ranging between 1.5-3 wt% is found in paragraph 0018. Thus, the ratio between lycopene and phytoene or phytoene and phytoflyene falls within a 1:1 ratio. Response to Arguments Applicant's arguments filed 02/19/2021 have been fully considered but they are not persuasive. Applicant argues that Zelkha ‘182 does not teach both of the concentrations of phytosterols and vitamin E as recited in claim 1. However, Applicant’s attention is called to paragraphs 0022-0023, where Zelkha ‘182 teaches the concentration of phytosterols of at least 2%, and vitamin E in a concentration of 1.5-4%, thus, falls within the claimed ranges. As such the rejection is maintained for at least the above reason. Claims 1 and 3-8 are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Zelkha et al. US 2010/0233256 A1. This rejection has been withdrawn in view of the Amendment filed 02/19/2021. 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. Claims 1 and 4-12 are rejected under 35 U.S.C.",
"103 as being unpatentable over Zelkha et al. US 2012/0258182 and Zelkha et al. US 2010/0233256, in view of Zelkha et al. US 2003/0044499 A1. Zelkha ‘182 is relied upon for the reason stated above. Zelkha teaches a composition comprising lycopene in a concentration of between 0.025-5 wt%. See paragraphs 0030-0031. The composition further comprises phytosterols, phytoene and phytofluene, beta-carotene, carnosic acid, and vitamin E. See paragraphs 0020, 0041, 0045-0055. Phytoene and phytofluene are present in a concentration 0.0025-1.25 wt%. See paragraph 0050. Thus, the ratio between lycopene and phytoene or phytoene and phytoflyene can fall within a 1:1 ratio. The claimed amount of vitamin E can be found in paragraph 0055. The Zelkha references do not expressly teach the claimed extracting process. Zelkha ‘499 teaches a process for extracting comprising Pulp contains lipids, carotenoids and other components which are not soluble in water.",
"The aqueous phase obtained from decantation is also called serum and contains water soluble constituents such as polysaccharides, anthocyanines and polyphenols. Part of said water soluble constituents may be of commercial value e.g., anthocyanines and polyphenols. Thus, the serum is further processed to isolate said valuable materials. The pulp is extracted in a multi-stage extracting process, A suitable extracting solvent, preferably selected from among a group comprising of ethyl acetate, iso-propanol, ethanol and acetone or mixtures thereof is added to the pulp in the first extracting stage (FIG. 2, IV) and the pulp is extracted, preferably at a temperature in the range of about 40.degree.",
"C. to 65.degree. C., more preferably about 60.degree. C. The weight ratio between the pulp extract) collected from the extraction stages (FIG. 2, VI) is evaporated (FIG. 2, XI) to obtain oleoresin of 10%-20% zeaxanthin fatty acid diester. The oleoresin is subjected to saponification conditions (FIG. 2, XII) in order to hydrolyze the zeaxanthin diester to obtain zeaxanthin. The saponification is carried out at a temperature of about 70.degree. C. to 80.degree. C. in a mixture containing an aqueous solution of KOH, ethanol and hexane for about 1 hour. Upon hydrolysis of the zeaxanthin diester-containing oleoresin, zeaxanthin crystals precipitate and the mixture is filtered (FIG. 2, XIII). The solid fraction obtained contains about 70% to 90% zeaxanthin. Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to extract tomato using the carotenoid extraction process in view of Zelkha ‘499 with the expect of at least similar result.",
"This is because Zelkha ‘499 teaches the claimed extracting process is known in the art. Response to Arguments Applicant's arguments filed 02/19/2021 have been fully considered but they are not persuasive. However, in response to applicant's argument that the ‘499 reference does not teach or suggest a composition comprising lycopene, one or both of phytoene and phytofluene, and phytosterols, and vitamin E, let alone a comprising having the recited concentrations of components of claims 1 and 9, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Here, as mentioned above, under the 102 rejection, Zelkha ‘182 teaches the concentrations that fall within the claimed ranges, namely, phytosterols of at least 2%, and vitamin E in a concentration of 1.5-4%. See paragraphs 0022-0023. Thus, for at least the above reasons, the 103(a) rejection is maintained. 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). Correspondence Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSAN T TRAN whose telephone number is (571)272-0606. The examiner can normally be reached on Monday-Friday, 8:30 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, ROBERT A. WAX can be reached on 571-272-0623. 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 /SUSAN T TRAN/Primary Examiner, Art Unit 1615"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-18.zip | 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 .
Allowable Subject Matter Claims 9-13, 16-18, 20-21, and 23-24 allowed. The following is an examiner’s statement of reasons for allowance: The prior art of record that comes closest to teaching the limitations is Pedrotto (US 5,931,279) teaches a egg transfer device having mounting elements, suction lifting elements displaceable between suction and delivery position, but fails to teach the mounting elements having a first position parallel and a second position non-perpendicular and not parallel. Rasmussen (US 5,112,181) teaches rotating mounting elements perpendicular, but fails to teach non-perpendicular and not parallel. Therefore, it would require an unreasonable combination of references that would not suffice for a realistic case of obviousness. 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 KATIE L GERTH whose telephone number is (303)297-4602. The examiner can normally be reached Monday-Thursday 9am-4pm (MST). 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, Thanh Truong can be reached on (571)272-4472. 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.
/KATIE L GERTH/Examiner, Art Unit 3731 /THOMAS M WITTENSCHLAEGER/Examiner, Art Unit 3731 | 2022-08-10T02:07:50 | [
"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 . Allowable Subject Matter Claims 9-13, 16-18, 20-21, and 23-24 allowed. The following is an examiner’s statement of reasons for allowance: The prior art of record that comes closest to teaching the limitations is Pedrotto (US 5,931,279) teaches a egg transfer device having mounting elements, suction lifting elements displaceable between suction and delivery position, but fails to teach the mounting elements having a first position parallel and a second position non-perpendicular and not parallel. Rasmussen (US 5,112,181) teaches rotating mounting elements perpendicular, but fails to teach non-perpendicular and not parallel.",
"Therefore, it would require an unreasonable combination of references that would not suffice for a realistic case of obviousness. 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 KATIE L GERTH whose telephone number is (303)297-4602. The examiner can normally be reached Monday-Thursday 9am-4pm (MST). 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, Thanh Truong can be reached on (571)272-4472.",
"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.",
"/KATIE L GERTH/Examiner, Art Unit 3731 /THOMAS M WITTENSCHLAEGER/Examiner, Art Unit 3731"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Claims 1-20 are pending in the Instant Application. Claims 1-3, 5-10, 12-20 are rejected (Final Rejection). Claims 4 and 11 are objected.
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 .
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.
Claims 1-3, 5-10, 12-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kemp, United States Patent Application Publication No. 2007/0131094, in view of Master et al. (“Master”), United States Patent Application Publication No. 2010/0211693, in further view of Kawashima, United States Patent No. 6,549,767. As per claim 1, Kemp discloses a melody information processing method, a comprising: ([0050] and [0054] wherein database 103 has MIDI data stored on it (“previously stored”) corresponding to songs, which inherently must be received if stored); obtaining a song identifier of the song ([0050] wherein the database stores (obtains) textual background information and [0025] wherein the text background information can include song identifiers such as the title); generating first melody information according to the MIDI data ([Fig. 1a] wherein the MIDI database files go through MIDI processing to create a comparable version of the MIDI file (first melody information)); storing the first melody information in association with the song identifier in a melody database ([Fig. 1c] wherein melody database 105 is described that stores the feature file database information after processing as shown in [Fig. 1a]); receiving a user unaccompanied-singing audio data set that is uploaded from a user terminal ([0050] wherein a sung, hummed tune is received); extracting, by processing circuitry according to the user unaccompanied-singing audio data set, second melody information corresponding to the song identifier ([Fig. 1a] wherein the melody is processed in order to be matched wherein the processed melody corresponds to a song identifier in the ranked list), the second melody information including second pitch information and second timing information corresponding to the second pitch information ([0057] wherein the pitch level is determined for the hummed melody, wherein one dimension of the file is timing information); but does not disclose storing the second melody information in including first pitch information and first timing information corresponding to the first pitch information. However, Master teaches storing the second melody information in association with the song identifier in the melody database ([0031] wherein melody information associated with a song that was sung is stored for recognition), but does not disclose the first melody information including first pitch information and first timing information corresponding to the first pitch information. However, Kawashima teaches melody information including pitch information and timing information corresponding to the pitch information ([Col 20, lines 60-67] wherein pitch information is combined with timing information in a file). Both Kemp and Master describe a method of recognizing unaccompanied-singing audio. One could store the audio from Kemp in the database described by Master to teach the claimed invention. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of recognizing singing audio by using a melody database in Kemp, with the storing of singing audio in a database in Master in order to increase the number of types of recognizable information. The combination of Kemp and Masters describes the first and second melody information. While Kemp expressly describes melody information including pitch information and timing information corresponding to the pitch information for the second melody information, it does not for the first. Kawashima teaches this limitation. One could replace the melody information in Kemp and Masters with the melody information in Kawashima to teach the claimed invention. The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) identified a Graham. One such rationale is (B) Simple substitution of one known element for another to obtain predictable results. In this case, both are a type of sound formats and a computer could be programmed to handle either. The results would be predictable since they both store the same information. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of recognizing singing audio by using a melody database with storing the audio in the combination of Kemp and Master with the melody information format in Kawashima for compression and encoding.
As per claim 2, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1. Kemp further discloses before the second melody information corresponding to the song identifier is extracted: filtering out at least one of the following types of user unaccompanied-singing audio data from the user unaccompanied-singing audio data set: a piece of user unaccompanied-singing audio data that corresponds to an incomplete rendition of a corresponding song; a piece of user unaccompanied-singing audio data that is identified as a rendition of a corresponding song recorded without using a headset for feeding a corresponding instrumental accompaniment; and a piece of user unaccompanied-singing audio data that is determined to include noise or an instrumental accompaniment ([0018] wherein “at least one” is claimed and deletion is described, wherein deletion is the filtering out of “noise” i.e. missing cells).
As per claim 3, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1. Kemp further discloses wherein the extracting the second melody information corresponding to the song identifier comprises: traversing a piece of the user unaccompanied-singing audio data set that corresponds to the song identifier to obtain pitch information ([0057] wherein the pitch level is determined for the hummed melody); performing note onset detection on the traversed piece of the user unaccompanied-singing audio data set to obtain note onset timing information corresponding to the second pitch information as the second timing information ([0061] wherein the set is the notes of the hummed melody and the previous stored song and [0061] wherein the alignment is the onset detection and [0057] wherein time is a dimension); and combining the second pitch information and the corresponding note onset timing information into the second melody information corresponding to the song identifier ([0057] wherein the combining of pitch information and time is described that corresponds to a song identifier).
As per claim 5, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1. Kemp further ([0061] wherein the previously stored songs represent the music service); extracting, according to the audio data set, third melody information corresponding to the song identifier ([0061] wherein the matching melody is extracted to be compared); and storing the third melody information in association with the song identifier in the melody database ([0061] wherein the melody information is previously stored as described).
As per claim 6, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 5. Kemp further discloses wherein the extracting, according to the audio data set, the third melody information corresponding to the song identifier comprises: traversing a piece of the audio data set that corresponds to the song identifier to obtain a main- melody pitch contour of the traversed piece of song audio data ([0061] wherein the set is the notes of the hummed melody and the previous stored song); merging pitch values in the main-melody pitch contour within respective time intervals that are defined according to a fixed time length to obtain merged pitch information and corresponding note onset timing information ([0061] wherein the Viterbi search finds the best timing alignment); and combining the merged pitch information and the corresponding note onset timing information into third melody information corresponding to the song identifier ([0057] wherein the combining of pitch information and time is described that corresponds to a song identifier).
([0050] wherein a humming feature data is determined as the analyzed sound data as described in [0059]); determining similarities between the piece of humming feature data and pieces of melody information in the melody database ([Fig. 1a] wherein the matching is the determining of similarity); identifying one or more pieces of melody information that correspond to the determined similarities greater than a preset similarity threshold ([0064] wherein only the “best” combined scores are retained, wherein “best” is the threshold, along with scores that only differ by a delta PC); obtaining one or more song identifiers corresponding to the identified one or more pieces of melody information ([0075] wherein the ranked list is determined); and generating a humming recognition result according to the obtained one or more song identifiers([0075] wherein the ranked list is returned).
As per claim 8, claim 8 describes a server performing the method of claim 1 and is rejected for the same rationale and reasoning.
As per claim 9, claim 9 describes a server performing the method of claim 2 and is rejected for the same rationale and reasoning.
As per claim 12, claim 12 describes a server performing the method of claim 5 and is rejected for the same rationale and reasoning.
As per claim 13, claim 13 describes a server performing the method of claim 6 and is rejected for the same rationale and reasoning. . As per claim 14, claim 14 describes a server performing the method of claim 7 and is rejected for the same rationale and reasoning.
As per claim 15, claim 15 is the product that performs the method of claim 1 and is rejected for the same rationale and reasoning.
As per claim 16, claim 16 is the product that performs the method of claim 2 and is rejected for the same rationale and reasoning.
As per claim 17, claim 17 is the product that performs the method of claim 3 and is rejected for the same rationale and reasoning.
As per claim 18, claim 18 is the product that performs the method of claim 5 and is rejected for the same rationale and reasoning.
As per claim 20, claim 20 is the product that performs the method of claim 7 and is rejected for the same rationale and reasoning.
Allowable Subject Matter Claims 4, and 11 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments Applicant’s arguments with respect to claim(s) 1-3, 5-10, 12-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KANNAN SHANMUGASUNDARAM whose telephone number is (571)270-7763. The examiner can normally be reached on M-F 9:00 AM -6:00 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, Boris Gorney can be reached on (571) 270-5626. 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.
/KANNAN SHANMUGASUNDARAM/Primary Examiner, Art Unit 2158 | 2021-06-09T14:53:44 | [
"DETAILED ACTION Claims 1-20 are pending in the Instant Application. Claims 1-3, 5-10, 12-20 are rejected (Final Rejection). Claims 4 and 11 are objected. 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 . 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.",
"Claims 1-3, 5-10, 12-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kemp, United States Patent Application Publication No. 2007/0131094, in view of Master et al. (“Master”), United States Patent Application Publication No. 2010/0211693, in further view of Kawashima, United States Patent No. 6,549,767. As per claim 1, Kemp discloses a melody information processing method, a comprising: ([0050] and [0054] wherein database 103 has MIDI data stored on it (“previously stored”) corresponding to songs, which inherently must be received if stored); obtaining a song identifier of the song ([0050] wherein the database stores (obtains) textual background information and [0025] wherein the text background information can include song identifiers such as the title); generating first melody information according to the MIDI data ([Fig. 1a] wherein the MIDI database files go through MIDI processing to create a comparable version of the MIDI file (first melody information)); storing the first melody information in association with the song identifier in a melody database ([Fig.",
"1c] wherein melody database 105 is described that stores the feature file database information after processing as shown in [Fig. 1a]); receiving a user unaccompanied-singing audio data set that is uploaded from a user terminal ([0050] wherein a sung, hummed tune is received); extracting, by processing circuitry according to the user unaccompanied-singing audio data set, second melody information corresponding to the song identifier ([Fig. 1a] wherein the melody is processed in order to be matched wherein the processed melody corresponds to a song identifier in the ranked list), the second melody information including second pitch information and second timing information corresponding to the second pitch information ([0057] wherein the pitch level is determined for the hummed melody, wherein one dimension of the file is timing information); but does not disclose storing the second melody information in including first pitch information and first timing information corresponding to the first pitch information.",
"However, Master teaches storing the second melody information in association with the song identifier in the melody database ([0031] wherein melody information associated with a song that was sung is stored for recognition), but does not disclose the first melody information including first pitch information and first timing information corresponding to the first pitch information. However, Kawashima teaches melody information including pitch information and timing information corresponding to the pitch information ([Col 20, lines 60-67] wherein pitch information is combined with timing information in a file). Both Kemp and Master describe a method of recognizing unaccompanied-singing audio. One could store the audio from Kemp in the database described by Master to teach the claimed invention. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of recognizing singing audio by using a melody database in Kemp, with the storing of singing audio in a database in Master in order to increase the number of types of recognizable information. The combination of Kemp and Masters describes the first and second melody information.",
"While Kemp expressly describes melody information including pitch information and timing information corresponding to the pitch information for the second melody information, it does not for the first. Kawashima teaches this limitation. One could replace the melody information in Kemp and Masters with the melody information in Kawashima to teach the claimed invention. The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) identified a Graham. One such rationale is (B) Simple substitution of one known element for another to obtain predictable results. In this case, both are a type of sound formats and a computer could be programmed to handle either. The results would be predictable since they both store the same information.",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of recognizing singing audio by using a melody database with storing the audio in the combination of Kemp and Master with the melody information format in Kawashima for compression and encoding. As per claim 2, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1. Kemp further discloses before the second melody information corresponding to the song identifier is extracted: filtering out at least one of the following types of user unaccompanied-singing audio data from the user unaccompanied-singing audio data set: a piece of user unaccompanied-singing audio data that corresponds to an incomplete rendition of a corresponding song; a piece of user unaccompanied-singing audio data that is identified as a rendition of a corresponding song recorded without using a headset for feeding a corresponding instrumental accompaniment; and a piece of user unaccompanied-singing audio data that is determined to include noise or an instrumental accompaniment ([0018] wherein “at least one” is claimed and deletion is described, wherein deletion is the filtering out of “noise” i.e.",
"missing cells). As per claim 3, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1. Kemp further discloses wherein the extracting the second melody information corresponding to the song identifier comprises: traversing a piece of the user unaccompanied-singing audio data set that corresponds to the song identifier to obtain pitch information ([0057] wherein the pitch level is determined for the hummed melody); performing note onset detection on the traversed piece of the user unaccompanied-singing audio data set to obtain note onset timing information corresponding to the second pitch information as the second timing information ([0061] wherein the set is the notes of the hummed melody and the previous stored song and [0061] wherein the alignment is the onset detection and [0057] wherein time is a dimension); and combining the second pitch information and the corresponding note onset timing information into the second melody information corresponding to the song identifier ([0057] wherein the combining of pitch information and time is described that corresponds to a song identifier). As per claim 5, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 1.",
"Kemp further ([0061] wherein the previously stored songs represent the music service); extracting, according to the audio data set, third melody information corresponding to the song identifier ([0061] wherein the matching melody is extracted to be compared); and storing the third melody information in association with the song identifier in the melody database ([0061] wherein the melody information is previously stored as described). As per claim 6, note the rejection of claim 1 where Kemp, Master and Kawashima are combined. The combination teaches the method according to claim 5.",
"Kemp further discloses wherein the extracting, according to the audio data set, the third melody information corresponding to the song identifier comprises: traversing a piece of the audio data set that corresponds to the song identifier to obtain a main- melody pitch contour of the traversed piece of song audio data ([0061] wherein the set is the notes of the hummed melody and the previous stored song); merging pitch values in the main-melody pitch contour within respective time intervals that are defined according to a fixed time length to obtain merged pitch information and corresponding note onset timing information ([0061] wherein the Viterbi search finds the best timing alignment); and combining the merged pitch information and the corresponding note onset timing information into third melody information corresponding to the song identifier ([0057] wherein the combining of pitch information and time is described that corresponds to a song identifier). ([0050] wherein a humming feature data is determined as the analyzed sound data as described in [0059]); determining similarities between the piece of humming feature data and pieces of melody information in the melody database ([Fig. 1a] wherein the matching is the determining of similarity); identifying one or more pieces of melody information that correspond to the determined similarities greater than a preset similarity threshold ([0064] wherein only the “best” combined scores are retained, wherein “best” is the threshold, along with scores that only differ by a delta PC); obtaining one or more song identifiers corresponding to the identified one or more pieces of melody information ([0075] wherein the ranked list is determined); and generating a humming recognition result according to the obtained one or more song identifiers([0075] wherein the ranked list is returned).",
"As per claim 8, claim 8 describes a server performing the method of claim 1 and is rejected for the same rationale and reasoning. As per claim 9, claim 9 describes a server performing the method of claim 2 and is rejected for the same rationale and reasoning. As per claim 12, claim 12 describes a server performing the method of claim 5 and is rejected for the same rationale and reasoning. As per claim 13, claim 13 describes a server performing the method of claim 6 and is rejected for the same rationale and reasoning. . As per claim 14, claim 14 describes a server performing the method of claim 7 and is rejected for the same rationale and reasoning. As per claim 15, claim 15 is the product that performs the method of claim 1 and is rejected for the same rationale and reasoning.",
"As per claim 16, claim 16 is the product that performs the method of claim 2 and is rejected for the same rationale and reasoning. As per claim 17, claim 17 is the product that performs the method of claim 3 and is rejected for the same rationale and reasoning. As per claim 18, claim 18 is the product that performs the method of claim 5 and is rejected for the same rationale and reasoning. As per claim 20, claim 20 is the product that performs the method of claim 7 and is rejected for the same rationale and reasoning. Allowable Subject Matter Claims 4, and 11 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Response to Arguments Applicant’s arguments with respect to claim(s) 1-3, 5-10, 12-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.",
"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). Any inquiry concerning this communication or earlier communications from the examiner should be directed to KANNAN SHANMUGASUNDARAM whose telephone number is (571)270-7763. The examiner can normally be reached on M-F 9:00 AM -6:00 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, Boris Gorney can be reached on (571) 270-5626. 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. /KANNAN SHANMUGASUNDARAM/Primary Examiner, Art Unit 2158"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-13.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
RESPONSE TO AMENDMENTS 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 Claims 1, 19, 24–39 and 46-51 are pending. Claims 2–18, 20–23 and 40-45 are canceled. Claims 46-51 are new. Claim 39 is objected to. Claims 1, 19, 24–38 and 46–51 are rejected. Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/31/2022 has been entered. Response to Arguments Applicant’s arguments, see pages 8–12, filed 7/19/2021, with respect to the rejection(s) of claim(s) 1–19 AND 24–45 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 Gilbert (2019/0290215), Lisogurski et al. (2011/0034783), Welch Allyn reference ("Welch Allyn 1500 Patient Monitor User Manual", December 31, 2011), Urtti (2014/0073860), and Edelman et al. (2018/0078159). 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.
Claims 1, 19, 24, 28-33, and 46–51 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), and further in view of Welch Allyn reference ("Welch Allyn 1500 Patient Monitor User Manual", December 31, 2011). Regarding claims 1, 19 and 24, Gilbert substantially teaches A medical device monitoring system/method/non-transitory computer-readable medium comprising: receive, via a computer network, from at least one medical device controller of a plurality of medical device controllers, at least one image of contents displayed on a screen of the at least one medical device controller (Fig. 10; ¶120, image recording system can capture image and send it to a processing unit in a remote location for further processing, such as the console; Fig. 2B, for example, camera 100 or 102 is attached to a device which can be used to send said images obtained to the processing device 122; plurality of devices sending images is shown in Fig. 2B as well; see also ¶¶76-78); send a request to an optical character recognition (OCR) engine to extract textual information from at least a portion of the at least one image (¶119, at least one processing unit can be programmed to extract instrument data for defined regions of interest in an image, including extraction based on an OCR of said image in a form of text data indicative of, for example, pressure, temperature, flow rate, etc.); receive, from the OCR engine, extracted textual information (¶95; ¶119, OCR techniques; Fig. 10, different units can process such OCR data and send to another destination as shown); and However, Gilbert does not explicitly teach send, in response to at least two trigger conditions of a plurality of trigger conditions being met, a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, the first and second rates being non-zero, wherein the plurality of trigger conditions comprises: a first condition based on whether the extracted textual information comprises alarm text; a second condition based on whether the extracted textual information comprises an indication that a medical device is connected to the at least one medical device controller; or a third condition based on the results of a validation test performed on the extracted textual information, wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the server, and wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions. Lisogurski from the same field of endeavor teaches send, in response to at least two trigger conditions of a plurality of trigger conditions being met (Figs. 3 and 4; ¶¶37 and 40, for example, the update intervals can be changed based on "update factors" which is similar to trigger conditions as claimed; the said update intervals can be updated based on plurality of the update factors [such as shown in Fig. 4] being satisfied which includes the "two trigger conditions" as claimed), a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, the first and second rates being non-zero, (¶¶3-5, medical sensors can provide information that can obtain a raw measurement from a patient which can be transmitted; update intervals of such receipt/transmission of raw measurements can be based at least on a predetermined update factor associated with a status of the patient; see Figs. 3 and 4; Fig. 4; ¶37, for example, update interval of the raw measurement data can be increased or decreased based on data that would be "medically significant" such as rapid change including increased/decreased pulse rate, respiration rate, etc.; the update intervals can be varied anywhere from every one second, minutes, hours, etc. [the rates can be updated from, for example, every second to every minute, which can be a first rate and second rate both being non-zero]; however, Lisogurski teaches that these rates are updated based on triggering condition being met where the medical device controller sends raw data stream images to a particular destination; instead, Gilbert the primary reference teaches the act of sending images to the analyzing server/console for OCR recognition, whereas Gilbert does not teach the adjustment of the rate at which it sends the images), wherein the plurality of trigger conditions comprises: a first condition based on whether the extracted textual information comprises alarm text; a second condition based on whether the extracted textual information comprises an indication that a medical device is connected to the at least one medical device controller (Fig. 4; ¶48, upon initialization of the sensor, update rate of the sensor may be temporarily increased dramatically); or a third condition based on the results of a validation test performed on the extracted textual information (Fig. 4; ¶40, for example, factor 88 identifies a "data of interest"; determination of whether to change the update interval/update rate can be based on the received and extracted raw stream of data being within a particular range which would identify such extracted data as "data of interest" [i.e. patient's heart rate suddenly changing from 70-75 bpm to 120 bpm, update interval becomes shorter]), wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the server (Figs. 3 and 4; ¶37, when evaluating the update factors, the update interval to be selected is based on predetermined rates such as the periodic update intervals of every 1 second, 2 seconds, 5 seconds, 10 seconds, etc. for all the update factors; Lisogurski does not teach the sending of images but rather sending of raw data; instead, Gilbert teaches such limitations of sending images), and It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Lisogurski to implement the dynamic update rate of the monitoring of patient vital information based on multiple factors. By enabling OCR'ed image data of displayed patient monitored data and updating the rate of information received regarding the contents of such monitored data, for example increased rate of measurement with respect to blood pressure or pulse rate amongst other vital information, would have resulted in a greater chance of survival of the patient being monitored overall. However, the teachings do not explicitly teach wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions. Welch Allyn reference from the same field of endeavor teaches wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (p. 29, for example, the user of a medical monitoring device has the ability to preset desired intervals for purposes of trend value displaying on the monitoring device itself; the preset desired intervals are finite and limited and thus include the rate which may be the fastest or the slowest of the predetermined rates). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Welch Allyn reference to ensure that user operating the monitoring device of Gilbert has the ability to more easily operate the user interface of the monitoring device of Gilbert including the ability to set intervals for various purposes within the monitoring device itself. By having preset intervals already defined within the device, the user would have found it quicker and easier to operate the device for its ultimate purpose of monitoring vital information of patients in hospitals.
Regarding claim 28, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the at least two trigger conditions comprise the second condition (Fig. 4; ¶48).
Regarding claim 29, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 28. Lisogurski further teaches wherein the second rate is slower than the first rate (Figs. 3 and 4; ¶34; for example, based on various update factors, sensor may increase or decrease the interval at which the data of interest are transmitted to a patient monitor; see also ¶37, ¶48, ¶55, etc.). However, the teachings do not explicitly teach wherein the second condition is a determination that the extracted textual information comprises an indication that a medical device is not connected to the at least one medical device controller. Welch Allyn reference from the same field of endeavor teaches wherein the second condition is a determination that the extracted textual information comprises an indication that a medical device is not connected to the at least one medical device controller (p. 39, sensor disconnected alarm status can be displayed on screen by, for example, no longer displaying on the patient monitor the sensor values; p. 35, alarm symbol can also be displayed in a measurement field where a sensor is physically disconnected as well), and It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Welch Allyn reference to effectively manage instances where the underlying sensor transmitting data when disconnected reduces the rate of transmission of such sensor so that such sensor can achieve various advantages, such as the sensor's usage of battery life. By decreasing rate of transmission for a sensor that is disconnected, said sensor would save batteries thereby prolonging its ability to submit future data upon being connected again to the same or different monitor (Lisogurski, Fig. 4; ¶49, battery life of sensor as a factor for data updates).
Regarding claim 30, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the at least two trigger conditions comprise the third condition (Fig. 4; ¶40).
Regarding claim 31, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 30. Lisogurski further teaches wherein the third condition is a determination that the validation test failed, and wherein the second rate is faster than the first rate (Fig. 4; ¶41, for example, factor 90 may be an absolute data value of data of interest obtained by the sensor; if it is not within a predetermined acceptable range of values, update interval is shortened).
Regarding claim 32, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 31. Lisogurski further teaches wherein the validation test checks that the extracted textual information consists of numeric characters or decimal points (Fig. 4; ¶41, an absolute value to be checked is numerical value).
Regarding claim 33, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 31. Lisogurski further teaches wherein the validation test checks that a numeric field is within a predetermined range (Fig. 4; ¶41).
Regarding claim 46, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the second rate is the fastest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends data at a slow rate as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the first rate as claimed would be 5 hours] and such rate is increased to the fastest possible update interval in the monitor, for example continuous rate [second rate as claimed]), and wherein each one of the predetermined rates associated with one or more of the at least two trigger conditions is faster than the first rate (Figs. 3 and 4; ¶¶37 and 40, the predetermined rate as identified by the button or switch having discrete data transfer level setting such as low, medium or high; for example the initial predetermined rate of a discrete data transfer level setting such as low [for example equating to 5 hours] can be increased to a faster rate). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased in the event where fast update rates are desired. Such situations, for example a patient's vital stats are appearing to be outside normal/expected ranges, the rate of monitoring can be increased in order to provide better identify possible patient emergency health issues.
Regarding claim 47, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 46. Lisogurski further teaches wherein the fastest of the predetermined rates with one or more of the at least two trigger conditions is associated with two or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, for example, button/switch setting that can set a discrete data transfer level such as low, medium or high can be associated as part of the plurality of update factors that can affect the update interval setting that the underlying monitoring device can use for updating data). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased in the event where fast update rates are desired. Such situations, for example a patient's vital stats are appearing to be outside normal/expected ranges, the rate of monitoring can be increased in order to provide better identify possible patient emergency health issues.
Regarding claim 48, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 47. Lisogurski further teaches wherein the plurality of predetermined rates comprises a set of individual rates, wherein each one of the rates within the set of individual rates is associated with only one of the plurality of trigger conditions, and wherein the set of individual rates comprises a rate for each one of the plurality of trigger conditions (Figs. 3 and 4; ¶¶37 and 40, each individual low, medium and high discrete levels of data transfer can be associated with actual update intervals used by the underlying system; the data transfer level switch can be one of the update factors in determining the actual update interval rates). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased or decreased by a user setting as initially required. By having the baseline update rates from which the machine can adapt to, the end user of the monitoring system of Gilbert would have found more effective when attempting proper interpretation of the data that the monitoring system is spewing to the doctors and nurses that monitor them.
Regarding claim 49, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the second rate is the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends raw data stream or continuous stream or processed values [where the first rate as claimed would be continuous/infinite as identified by Lisogurski] and such rate is decreased to the slowest possible update interval in the monitor as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the second rate as claimed would be 5 hours] and such predefined update intervals where the evaluate update factors can affect the rate of data transmission is used as discrete values for actual update rates), and wherein each one of the predetermined rates associated with one or more of the at least two trigger conditions is slower than the first rate (¶¶37 and 40, rate goes from continuous/infinite to 5 hours, which is slower than the initial continuous/infinite rate where predetermined rate is set by the button/switch with discrete data transfer level setting such as low, medium or high). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired. Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions.
Regarding claim 50, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 29. Lisogurski further teaches wherein the second rate is the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends raw data stream or continuous stream or processed values [where the first rate as claimed would be continuous/infinite as identified by Lisogurski] and such rate is decreased to the slowest possible update interval in the monitor as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the second rate as claimed would be 5 hours] and such predefined update intervals where the evaluate update factors can affect the rate of data transmission is used as discrete values for actual update rates). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired. Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions.
Regarding claim 51, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 50. Lisogurski further teaches wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined priority values, and wherein the second condition is associated with a higher predetermined priority value than another one of the at least two trigger conditions (Figs. 3 and 4; ¶45, for example, sixth factor for update rate determination can factor in patient setting, where a update interval for a particular patient that is critically ill can be prioritized higher than patients who are relatively stable; such determination is made based on “weigh”-ing of the patient setting in context of determination of update intervals for the patient monitoring data being collected). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired. Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions.
Claims 25-27 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), further in view of Welch Allyn reference ("Welch Allyn 1500 Patient Monitor User Manual", December 31, 2011), and further in view of Urtti (2014/0073860). Regarding claim 25, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches the second condition (Fig. 4; ¶48), and the third condition (Fig. 4; ¶40). However, the teachings do not explicitly teach wherein the plurality of trigger conditions comprises the first condition. Urtti from the same field of endeavor teaches wherein the plurality of trigger conditions comprises the first condition (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Urtti to use well-known alarming methods of patient monitors such as the alarm text displayed on patient monitors as a basis upon increasing or decreasing of the update rate factor as disclosed in Lisogurski. By implementing increased update rate of the patient vitals on patient monitors as disclosed in Lisogurski and Gilbert when alarm is detected, the patient being monitored would have a greater chance of survival.
Regarding claim 26, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Urtti further teaches wherein the at least two trigger conditions comprise the first condition (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Urtti to use well-known alarming methods of patient monitors such as the alarm text displayed on patient monitors as a basis upon increasing or decreasing of the update rate factor as disclosed in Lisogurski. By implementing increased update rate of the patient vitals on patient monitors as disclosed in Lisogurski and Gilbert when alarm is detected, the patient being monitored would have a greater chance of survival.
Regarding claim 27, Gilbert, Lisogurski, Welch Allyn reference and Urtti teach the limitations of claim 26. Urtti further teaches wherein the first condition is a determination that the extracted textual information comprises alarm text (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue), and Lisogurski further teaches wherein the requested adjustment is a request to increase the rate at which the at least one medical device controller sends images to the server (Figs. 3 and 4; ¶34; for example, based on various update factors, sensor may increase or decrease the interval at which the data of interest are transmitted to a patient monitor; see also ¶37, ¶48, ¶55, etc.).
Claim 34-38 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), further in view of Welch Allyn reference ("Welch Allyn 1500 Patient Monitor User Manual", December 31, 2011), and further in view of Edelman et al. (2018/0078159). Regarding claim 34, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 33. However, the teachings do not explicitly teach the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump. Edelman from the same field of endeavor teaches the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump (Fig. 9; patient monitor 902 can measure and control a pump controller 906 for proper blood flow to the heart; ¶124, heart pump is included as part of the system). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract).
Regarding claim 35, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a placement signal value (Fig. 20B, placement signal 2003). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract).
Regarding claim 36, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a motor current value (Fig. 20B, motor current value 2005). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract).
Regarding claim 37, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a blood flow rate (Fig. 20B, blood flow rate 2006). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract).
Regarding claim 38, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. However, the teachings do not explicitly teach the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump, and wherein the plurality of trigger conditions further comprises: a fourth condition based on whether the extracted textual information comprises a placement signal value within a first predetermined range; a fifth condition based on whether the extracted textual information comprises a motor current value within a second predetermined range; or a sixth condition based on whether the extracted textual information comprises a blood flow rate within a third predetermined range. Edelman from the same field of endeavor teaches the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump (Fig. 9; patient monitor 902 can measure and control a pump controller 906 for proper blood flow to the heart; ¶124, heart pump is included as part of the system), and wherein the plurality of trigger conditions further comprises: a fourth condition based on whether the extracted textual information comprises a placement signal value within a first predetermined range (Fig. 20B, 2003); a fifth condition based on whether the extracted textual information comprises a motor current value within a second predetermined range (Fig. 20B, 2005); or a sixth condition based on whether the extracted textual information comprises a blood flow rate within a third predetermined range (Fig. 20B, 2006). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Allowable Subject Matter Claim 39 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Harsdorff et al. (10,325,472) discloses the ability of medical sensors programmed with rules to trigger action based on combination of multiple sensor inputs.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAE KIM whose telephone number is (571)270-0621. The examiner can normally be reached Monday-Friday 8AM-5PM 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, Kevin Bates can be reached on (571) 272-3980. 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.
/DAE KIM/ Examiner, Art Unit 2458
/KEVIN T BATES/ Supervisory Patent Examiner, Art Unit 2458 | 2022-06-10T15:45:17 | [
"RESPONSE TO AMENDMENTS 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 Claims 1, 19, 24–39 and 46-51 are pending. Claims 2–18, 20–23 and 40-45 are canceled. Claims 46-51 are new. Claim 39 is objected to. Claims 1, 19, 24–38 and 46–51 are rejected. Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.",
"Applicant's submission filed on 3/31/2022 has been entered. Response to Arguments Applicant’s arguments, see pages 8–12, filed 7/19/2021, with respect to the rejection(s) of claim(s) 1–19 AND 24–45 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 Gilbert (2019/0290215), Lisogurski et al. (2011/0034783), Welch Allyn reference (\"Welch Allyn 1500 Patient Monitor User Manual\", December 31, 2011), Urtti (2014/0073860), and Edelman et al. (2018/0078159). 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. Claims 1, 19, 24, 28-33, and 46–51 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), and further in view of Welch Allyn reference (\"Welch Allyn 1500 Patient Monitor User Manual\", December 31, 2011). Regarding claims 1, 19 and 24, Gilbert substantially teaches A medical device monitoring system/method/non-transitory computer-readable medium comprising: receive, via a computer network, from at least one medical device controller of a plurality of medical device controllers, at least one image of contents displayed on a screen of the at least one medical device controller (Fig. 10; ¶120, image recording system can capture image and send it to a processing unit in a remote location for further processing, such as the console; Fig. 2B, for example, camera 100 or 102 is attached to a device which can be used to send said images obtained to the processing device 122; plurality of devices sending images is shown in Fig. 2B as well; see also ¶¶76-78); send a request to an optical character recognition (OCR) engine to extract textual information from at least a portion of the at least one image (¶119, at least one processing unit can be programmed to extract instrument data for defined regions of interest in an image, including extraction based on an OCR of said image in a form of text data indicative of, for example, pressure, temperature, flow rate, etc.",
"); receive, from the OCR engine, extracted textual information (¶95; ¶119, OCR techniques; Fig. 10, different units can process such OCR data and send to another destination as shown); and However, Gilbert does not explicitly teach send, in response to at least two trigger conditions of a plurality of trigger conditions being met, a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, the first and second rates being non-zero, wherein the plurality of trigger conditions comprises: a first condition based on whether the extracted textual information comprises alarm text; a second condition based on whether the extracted textual information comprises an indication that a medical device is connected to the at least one medical device controller; or a third condition based on the results of a validation test performed on the extracted textual information, wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the server, and wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions. Lisogurski from the same field of endeavor teaches send, in response to at least two trigger conditions of a plurality of trigger conditions being met (Figs.",
"3 and 4; ¶¶37 and 40, for example, the update intervals can be changed based on \"update factors\" which is similar to trigger conditions as claimed; the said update intervals can be updated based on plurality of the update factors [such as shown in Fig. 4] being satisfied which includes the \"two trigger conditions\" as claimed), a request to the at least one medical device controller to change a first rate at which the at least one medical device controller sends images to the server to a second rate, the first and second rates being non-zero, (¶¶3-5, medical sensors can provide information that can obtain a raw measurement from a patient which can be transmitted; update intervals of such receipt/transmission of raw measurements can be based at least on a predetermined update factor associated with a status of the patient; see Figs.",
"3 and 4; Fig. 4; ¶37, for example, update interval of the raw measurement data can be increased or decreased based on data that would be \"medically significant\" such as rapid change including increased/decreased pulse rate, respiration rate, etc. ; the update intervals can be varied anywhere from every one second, minutes, hours, etc. [the rates can be updated from, for example, every second to every minute, which can be a first rate and second rate both being non-zero]; however, Lisogurski teaches that these rates are updated based on triggering condition being met where the medical device controller sends raw data stream images to a particular destination; instead, Gilbert the primary reference teaches the act of sending images to the analyzing server/console for OCR recognition, whereas Gilbert does not teach the adjustment of the rate at which it sends the images), wherein the plurality of trigger conditions comprises: a first condition based on whether the extracted textual information comprises alarm text; a second condition based on whether the extracted textual information comprises an indication that a medical device is connected to the at least one medical device controller (Fig.",
"4; ¶48, upon initialization of the sensor, update rate of the sensor may be temporarily increased dramatically); or a third condition based on the results of a validation test performed on the extracted textual information (Fig. 4; ¶40, for example, factor 88 identifies a \"data of interest\"; determination of whether to change the update interval/update rate can be based on the received and extracted raw stream of data being within a particular range which would identify such extracted data as \"data of interest\" [i.e. patient's heart rate suddenly changing from 70-75 bpm to 120 bpm, update interval becomes shorter]), wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined rates at which the at least one medical device controller sends images to the server (Figs. 3 and 4; ¶37, when evaluating the update factors, the update interval to be selected is based on predetermined rates such as the periodic update intervals of every 1 second, 2 seconds, 5 seconds, 10 seconds, etc. for all the update factors; Lisogurski does not teach the sending of images but rather sending of raw data; instead, Gilbert teaches such limitations of sending images), and It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Lisogurski to implement the dynamic update rate of the monitoring of patient vital information based on multiple factors.",
"By enabling OCR'ed image data of displayed patient monitored data and updating the rate of information received regarding the contents of such monitored data, for example increased rate of measurement with respect to blood pressure or pulse rate amongst other vital information, would have resulted in a greater chance of survival of the patient being monitored overall. However, the teachings do not explicitly teach wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions. Welch Allyn reference from the same field of endeavor teaches wherein the second rate is the fastest or the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (p. 29, for example, the user of a medical monitoring device has the ability to preset desired intervals for purposes of trend value displaying on the monitoring device itself; the preset desired intervals are finite and limited and thus include the rate which may be the fastest or the slowest of the predetermined rates).",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Welch Allyn reference to ensure that user operating the monitoring device of Gilbert has the ability to more easily operate the user interface of the monitoring device of Gilbert including the ability to set intervals for various purposes within the monitoring device itself. By having preset intervals already defined within the device, the user would have found it quicker and easier to operate the device for its ultimate purpose of monitoring vital information of patients in hospitals.",
"Regarding claim 28, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the at least two trigger conditions comprise the second condition (Fig. 4; ¶48). Regarding claim 29, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 28. Lisogurski further teaches wherein the second rate is slower than the first rate (Figs. 3 and 4; ¶34; for example, based on various update factors, sensor may increase or decrease the interval at which the data of interest are transmitted to a patient monitor; see also ¶37, ¶48, ¶55, etc.). However, the teachings do not explicitly teach wherein the second condition is a determination that the extracted textual information comprises an indication that a medical device is not connected to the at least one medical device controller.",
"Welch Allyn reference from the same field of endeavor teaches wherein the second condition is a determination that the extracted textual information comprises an indication that a medical device is not connected to the at least one medical device controller (p. 39, sensor disconnected alarm status can be displayed on screen by, for example, no longer displaying on the patient monitor the sensor values; p. 35, alarm symbol can also be displayed in a measurement field where a sensor is physically disconnected as well), and It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Welch Allyn reference to effectively manage instances where the underlying sensor transmitting data when disconnected reduces the rate of transmission of such sensor so that such sensor can achieve various advantages, such as the sensor's usage of battery life.",
"By decreasing rate of transmission for a sensor that is disconnected, said sensor would save batteries thereby prolonging its ability to submit future data upon being connected again to the same or different monitor (Lisogurski, Fig. 4; ¶49, battery life of sensor as a factor for data updates). Regarding claim 30, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the at least two trigger conditions comprise the third condition (Fig. 4; ¶40). Regarding claim 31, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 30. Lisogurski further teaches wherein the third condition is a determination that the validation test failed, and wherein the second rate is faster than the first rate (Fig. 4; ¶41, for example, factor 90 may be an absolute data value of data of interest obtained by the sensor; if it is not within a predetermined acceptable range of values, update interval is shortened). Regarding claim 32, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 31. Lisogurski further teaches wherein the validation test checks that the extracted textual information consists of numeric characters or decimal points (Fig. 4; ¶41, an absolute value to be checked is numerical value). Regarding claim 33, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 31.",
"Lisogurski further teaches wherein the validation test checks that a numeric field is within a predetermined range (Fig. 4; ¶41). Regarding claim 46, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the second rate is the fastest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends data at a slow rate as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the first rate as claimed would be 5 hours] and such rate is increased to the fastest possible update interval in the monitor, for example continuous rate [second rate as claimed]), and wherein each one of the predetermined rates associated with one or more of the at least two trigger conditions is faster than the first rate (Figs. 3 and 4; ¶¶37 and 40, the predetermined rate as identified by the button or switch having discrete data transfer level setting such as low, medium or high; for example the initial predetermined rate of a discrete data transfer level setting such as low [for example equating to 5 hours] can be increased to a faster rate).",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased in the event where fast update rates are desired. Such situations, for example a patient's vital stats are appearing to be outside normal/expected ranges, the rate of monitoring can be increased in order to provide better identify possible patient emergency health issues. Regarding claim 47, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 46. Lisogurski further teaches wherein the fastest of the predetermined rates with one or more of the at least two trigger conditions is associated with two or more of the at least two trigger conditions (Figs.",
"3 and 4; ¶¶37 and 40, for example, button/switch setting that can set a discrete data transfer level such as low, medium or high can be associated as part of the plurality of update factors that can affect the update interval setting that the underlying monitoring device can use for updating data). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased in the event where fast update rates are desired. Such situations, for example a patient's vital stats are appearing to be outside normal/expected ranges, the rate of monitoring can be increased in order to provide better identify possible patient emergency health issues. Regarding claim 48, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 47.",
"Lisogurski further teaches wherein the plurality of predetermined rates comprises a set of individual rates, wherein each one of the rates within the set of individual rates is associated with only one of the plurality of trigger conditions, and wherein the set of individual rates comprises a rate for each one of the plurality of trigger conditions (Figs. 3 and 4; ¶¶37 and 40, each individual low, medium and high discrete levels of data transfer can be associated with actual update intervals used by the underlying system; the data transfer level switch can be one of the update factors in determining the actual update interval rates). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be increased or decreased by a user setting as initially required. By having the baseline update rates from which the machine can adapt to, the end user of the monitoring system of Gilbert would have found more effective when attempting proper interpretation of the data that the monitoring system is spewing to the doctors and nurses that monitor them.",
"Regarding claim 49, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches wherein the second rate is the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs. 3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends raw data stream or continuous stream or processed values [where the first rate as claimed would be continuous/infinite as identified by Lisogurski] and such rate is decreased to the slowest possible update interval in the monitor as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the second rate as claimed would be 5 hours] and such predefined update intervals where the evaluate update factors can affect the rate of data transmission is used as discrete values for actual update rates), and wherein each one of the predetermined rates associated with one or more of the at least two trigger conditions is slower than the first rate (¶¶37 and 40, rate goes from continuous/infinite to 5 hours, which is slower than the initial continuous/infinite rate where predetermined rate is set by the button/switch with discrete data transfer level setting such as low, medium or high).",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired. Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions. Regarding claim 50, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 29. Lisogurski further teaches wherein the second rate is the slowest of the predetermined rates associated with one or more of the at least two trigger conditions (Figs.",
"3 and 4; ¶¶37 and 40, rates can be updated based on evaluate update factors; a possibility where monitor sends raw data stream or continuous stream or processed values [where the first rate as claimed would be continuous/infinite as identified by Lisogurski] and such rate is decreased to the slowest possible update interval in the monitor as set by a button or switch with discrete data transfer level setting such as low, medium or high; setting such as “low” could comprise, for example 5 hours as identified [where the second rate as claimed would be 5 hours] and such predefined update intervals where the evaluate update factors can affect the rate of data transmission is used as discrete values for actual update rates). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired.",
"Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions. Regarding claim 51, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 50. Lisogurski further teaches wherein each one of the plurality of trigger conditions is associated with at least one of a plurality of predetermined priority values, and wherein the second condition is associated with a higher predetermined priority value than another one of the at least two trigger conditions (Figs. 3 and 4; ¶45, for example, sixth factor for update rate determination can factor in patient setting, where a update interval for a particular patient that is critically ill can be prioritized higher than patients who are relatively stable; such determination is made based on “weigh”-ing of the patient setting in context of determination of update intervals for the patient monitoring data being collected). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using the Lisogurski to ensure that monitoring rates can be slowed down in the event where fast update rates are not desired.",
"Such situations, for example a patient's vital stats are within normal/expected ranges, the rate of monitoring can be slowed down in order to provide the monitoring device more resources to devote to other functions. Claims 25-27 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), further in view of Welch Allyn reference (\"Welch Allyn 1500 Patient Monitor User Manual\", December 31, 2011), and further in view of Urtti (2014/0073860). Regarding claim 25, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Lisogurski further teaches the second condition (Fig. 4; ¶48), and the third condition (Fig. 4; ¶40). However, the teachings do not explicitly teach wherein the plurality of trigger conditions comprises the first condition. Urtti from the same field of endeavor teaches wherein the plurality of trigger conditions comprises the first condition (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Urtti to use well-known alarming methods of patient monitors such as the alarm text displayed on patient monitors as a basis upon increasing or decreasing of the update rate factor as disclosed in Lisogurski. By implementing increased update rate of the patient vitals on patient monitors as disclosed in Lisogurski and Gilbert when alarm is detected, the patient being monitored would have a greater chance of survival.",
"Regarding claim 26, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. Urtti further teaches wherein the at least two trigger conditions comprise the first condition (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Urtti to use well-known alarming methods of patient monitors such as the alarm text displayed on patient monitors as a basis upon increasing or decreasing of the update rate factor as disclosed in Lisogurski. By implementing increased update rate of the patient vitals on patient monitors as disclosed in Lisogurski and Gilbert when alarm is detected, the patient being monitored would have a greater chance of survival. Regarding claim 27, Gilbert, Lisogurski, Welch Allyn reference and Urtti teach the limitations of claim 26.",
"Urtti further teaches wherein the first condition is a determination that the extracted textual information comprises alarm text (Fig. 4; ¶5, on a screen of a patient monitor, alarm text can be displayed on screen based on the status of the patient having a health issue), and Lisogurski further teaches wherein the requested adjustment is a request to increase the rate at which the at least one medical device controller sends images to the server (Figs. 3 and 4; ¶34; for example, based on various update factors, sensor may increase or decrease the interval at which the data of interest are transmitted to a patient monitor; see also ¶37, ¶48, ¶55, etc.).",
"Claim 34-38 are rejected under 35 U.S.C. § 103 as being unpatentable over Gilbert (2019/0290215) in view of Lisogurski et al. (2011/0034783), further in view of Welch Allyn reference (\"Welch Allyn 1500 Patient Monitor User Manual\", December 31, 2011), and further in view of Edelman et al. (2018/0078159). Regarding claim 34, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 33. However, the teachings do not explicitly teach the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump.",
"Edelman from the same field of endeavor teaches the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump (Fig. 9; patient monitor 902 can measure and control a pump controller 906 for proper blood flow to the heart; ¶124, heart pump is included as part of the system). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Regarding claim 35, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a placement signal value (Fig.",
"20B, placement signal 2003). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Regarding claim 36, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a motor current value (Fig.",
"20B, motor current value 2005). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Regarding claim 37, Gilbert, Lisogurski, Welch Allyn reference and Edelman teach the limitations of claim 34. Edelman further teaches wherein the numeric field is a blood flow rate (Fig. 20B, blood flow rate 2006). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Regarding claim 38, Gilbert, Lisogurski and Welch Allyn reference teach the limitations of claim 1. However, the teachings do not explicitly teach the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump, and wherein the plurality of trigger conditions further comprises: a fourth condition based on whether the extracted textual information comprises a placement signal value within a first predetermined range; a fifth condition based on whether the extracted textual information comprises a motor current value within a second predetermined range; or a sixth condition based on whether the extracted textual information comprises a blood flow rate within a third predetermined range.",
"Edelman from the same field of endeavor teaches the plurality of medical device controllers, wherein each one of the plurality of medical device controllers is configured to connect to a heart pump (Fig. 9; patient monitor 902 can measure and control a pump controller 906 for proper blood flow to the heart; ¶124, heart pump is included as part of the system), and wherein the plurality of trigger conditions further comprises: a fourth condition based on whether the extracted textual information comprises a placement signal value within a first predetermined range (Fig.",
"20B, 2003); a fifth condition based on whether the extracted textual information comprises a motor current value within a second predetermined range (Fig. 20B, 2005); or a sixth condition based on whether the extracted textual information comprises a blood flow rate within a third predetermined range (Fig. 20B, 2006). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to improve upon Gilbert using Edelman to also increase chance of a survival of a patient being monitored of his/her vital signs by variably monitoring such vital signs in particular to cardiovascular functionalities using cardiovascular related devices (Edelman, Abstract). Allowable Subject Matter Claim 39 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Harsdorff et al. (10,325,472) discloses the ability of medical sensors programmed with rules to trigger action based on combination of multiple sensor inputs. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAE KIM whose telephone number is (571)270-0621. The examiner can normally be reached Monday-Friday 8AM-5PM 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, Kevin Bates can be reached on (571) 272-3980.",
"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. /DAE KIM/ Examiner, Art Unit 2458 /KEVIN T BATES/ Supervisory Patent Examiner, Art Unit 2458"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-12.zip | 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 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 Abstract received 1/13/22 in response to the Notice To File Corrected Application Papers mailed 11/29/21 has been entered. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Loren C Edwards whose telephone number is (571)272-7133. The examiner can normally be reached M-R 6AM-430PM. 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, Mark A Laurenzi III can be reached on (571) 270-7878. 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.
/LOREN C EDWARDS/Examiner, Art Unit 3746 1/25/22 | 2022-02-01T15:24:29 | [
"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 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 Abstract received 1/13/22 in response to the Notice To File Corrected Application Papers mailed 11/29/21 has been entered. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Loren C Edwards whose telephone number is (571)272-7133.",
"The examiner can normally be reached M-R 6AM-430PM. 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, Mark A Laurenzi III can be reached on (571) 270-7878. 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. /LOREN C EDWARDS/Examiner, Art Unit 3746 1/25/22"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-06.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: From Louisa Catherine Johnson Adams to John Quincy Adams, 8 September 1822 From: Adams, Louisa Catherine Johnson To: Adams, John Quincy
My best friend Philadelphia 8 Sept 1822 Another attack of St Anthony confines me to my chamber since I wrote last and as it has been attended by head ache &c. with considerable fever I put myself into the hands of the Doctor; who is in hopes of eradicating the complaint altogether, though it is so stubborn it will require time, patience, and some confinement to my chamber—You have been too long accustomed to see me suffer in this way to be uneasy concerning it; and as Doctor Physick is the only Physician I have seen who thinks he can relieve me; I have thought it better to take advantage of the opportunity—More especially as he informs me that in this complaint there is always danger of a sudden mortification if neglected—I shall in all probability not be at home until the beginning of the Month—My Brother is recovering as rapidly as we can expect or hope, but the doctor says he has much to do yet—I shall resume my journal as soon as I am well enough to leave my chamber—but it will be liable to interruptions—I was very sorry to hear of Mr Meigs’s death, and had no idea he was so old a man.It is so sickly round this City the Doctor will not permit my brother to ride out of its immediate precincts; and he makes his promenades through the Streets on Horseback—It is very warm again—Poor Briggs I am very sorry for him—Is he still with George? I have had a long Letter from Charles—he is much better, and says your father frets very much at not hearing from George—Love to all from your affectionate Wife L. C. A— | 09-08-1822 | [
"Title: From Louisa Catherine Johnson Adams to John Quincy Adams, 8 September 1822 From: Adams, Louisa Catherine Johnson To: Adams, John Quincy My best friend Philadelphia 8 Sept 1822 Another attack of St Anthony confines me to my chamber since I wrote last and as it has been attended by head ache &c. with considerable fever I put myself into the hands of the Doctor; who is in hopes of eradicating the complaint altogether, though it is so stubborn it will require time, patience, and some confinement to my chamber—You have been too long accustomed to see me suffer in this way to be uneasy concerning it; and as Doctor Physick is the only Physician I have seen who thinks he can relieve me; I have thought it better to take advantage of the opportunity—More especially as he informs me that in this complaint there is always danger of a sudden mortification if neglected—I shall in all probability not be at home until the beginning of the Month—My Brother is recovering as rapidly as we can expect or hope, but the doctor says he has much to do yet—I shall resume my journal as soon as I am well enough to leave my chamber—but it will be liable to interruptions—I was very sorry to hear of Mr Meigs’s death, and had no idea he was so old a man.It is so sickly round this City the Doctor will not permit my brother to ride out of its immediate precincts; and he makes his promenades through the Streets on Horseback—It is very warm again—Poor Briggs I am very sorry for him—Is he still with George?",
"I have had a long Letter from Charles—he is much better, and says your father frets very much at not hearing from George—Love to all from your affectionate Wife L. C. A—"
]
| https://founders.archives.gov/API/docdata/Adams/99-03-02-4157 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Price, J.), entered June 9, 2000, which, upon the granting of the motion of the defendant Laro Maintenance Corporation to dismiss the complaint insofar as asserted against it at the close of plaintiffs case, for failure to establish a prima facie case, is in favor of that defendant and against them, dismissing the complaint. Ordered that the judgment is affirmed, with costs. On March 18, 1993, the plaintiff Kevin Telford (hereinafter *303the plaintiff) allegedly sustained personal injuries when he slipped and fell on snow and ice in his employer’s parking lot. At the time of the plaintiff’s accident, a contract was allegedly in effect between his employer, New York Telephone (hereinafter NYNEX), and the defendant Laro Maintenance Corporation (hereinafter Laro) to provide certain services, including general janitorial, landscaping, and snow removal duties. At trial, the plaintiffs failed to lay a proper foundation for the admission into evidence of the purported maintenance contract between Laro and NYNEX. At the conclusion of the plaintiffs’ case, counsel for Laro moved to dismiss the action insofar as asserted against it on the ground that the plaintiffs failed to establish a prima facie case. The Supreme Court granted Laro’s motion and dismissed the complaint insofar as asserted against it. Contrary to the plaintiffs’ contention, they failed to establish the existence of a comprehensive and exclusive property maintenance obligation intended to displace the duty of NYNEX, as landowner, to maintain the property in a safe condition (see, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Murphy v M.B. Real Estate Dev. Corp., 280 AD2d 457; Donahue v Petracca & Co., 277 AD2d 346; Galetti v Coyne Textile Serv., 271 AD2d 406; Sapone v Commercial Bldg. Maintenance Corp., 262 AD2d 393). Therefore, the Supreme Court properly granted Laro’s motion. In addition, the trial court providently exercised its discretion in denying the plaintiffs a continuance to produce a witness from NYNEX (see, Reo v Klarman, 259 AD2d 477; Herbert v Edwards Super Food, Stores-Finast Supermarkets, 253 AD2d 789; cf., Evangelinos v Reifschneider, 241 AD2d 508). The plaintiffs failed to exercise due diligence in securing the witness’s appearance, as they had ample time and opportunity to do so (see, Herbert v Edwards Super Food Stores-Finast Supermarkets, supra; Reo v Klarman, supra, at 478). The plaintiffs’ remaining contentions are without merit. Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur. | 01-13-2022 | [
"—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Price, J. ), entered June 9, 2000, which, upon the granting of the motion of the defendant Laro Maintenance Corporation to dismiss the complaint insofar as asserted against it at the close of plaintiffs case, for failure to establish a prima facie case, is in favor of that defendant and against them, dismissing the complaint. Ordered that the judgment is affirmed, with costs. On March 18, 1993, the plaintiff Kevin Telford (hereinafter *303the plaintiff) allegedly sustained personal injuries when he slipped and fell on snow and ice in his employer’s parking lot.",
"At the time of the plaintiff’s accident, a contract was allegedly in effect between his employer, New York Telephone (hereinafter NYNEX), and the defendant Laro Maintenance Corporation (hereinafter Laro) to provide certain services, including general janitorial, landscaping, and snow removal duties. At trial, the plaintiffs failed to lay a proper foundation for the admission into evidence of the purported maintenance contract between Laro and NYNEX. At the conclusion of the plaintiffs’ case, counsel for Laro moved to dismiss the action insofar as asserted against it on the ground that the plaintiffs failed to establish a prima facie case. The Supreme Court granted Laro’s motion and dismissed the complaint insofar as asserted against it. Contrary to the plaintiffs’ contention, they failed to establish the existence of a comprehensive and exclusive property maintenance obligation intended to displace the duty of NYNEX, as landowner, to maintain the property in a safe condition (see, Palka v Servicemaster Mgt.",
"Servs. Corp., 83 NY2d 579; Murphy v M.B. Real Estate Dev. Corp., 280 AD2d 457; Donahue v Petracca & Co., 277 AD2d 346; Galetti v Coyne Textile Serv., 271 AD2d 406; Sapone v Commercial Bldg. Maintenance Corp., 262 AD2d 393). Therefore, the Supreme Court properly granted Laro’s motion. In addition, the trial court providently exercised its discretion in denying the plaintiffs a continuance to produce a witness from NYNEX (see, Reo v Klarman, 259 AD2d 477; Herbert v Edwards Super Food, Stores-Finast Supermarkets, 253 AD2d 789; cf., Evangelinos v Reifschneider, 241 AD2d 508). The plaintiffs failed to exercise due diligence in securing the witness’s appearance, as they had ample time and opportunity to do so (see, Herbert v Edwards Super Food Stores-Finast Supermarkets, supra; Reo v Klarman, supra, at 478).",
"The plaintiffs’ remaining contentions are without merit. Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6079560/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
295 S.W.3d 901 (2009) STATE of Missouri, Respondent, v. David S. ROPER, Appellant. No. WD 70302. Missouri Court of Appeals, Western District. November 3, 2009. Kent Denzel, for Appellant. Daniel N. McPherson, for Respondent. Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge. Prior report: 268 S.W.3d 392.
ORDER PER CURIAM: David S. Roper appeals the trial court's judgment sentencing him to serve a total of twenty-five years after Roper was convicted of three counts of delivering a controlled substance. On appeal, Roper claims that the trial court erred in overruling *902 his request for counsel at the resentencing hearing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties. The judgment is affirmed. Rule 30.25(b). | 10-30-2013 | [
"295 S.W.3d 901 (2009) STATE of Missouri, Respondent, v. David S. ROPER, Appellant. No. WD 70302. Missouri Court of Appeals, Western District. November 3, 2009. Kent Denzel, for Appellant. Daniel N. McPherson, for Respondent. Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge. Prior report: 268 S.W.3d 392. ORDER PER CURIAM: David S. Roper appeals the trial court's judgment sentencing him to serve a total of twenty-five years after Roper was convicted of three counts of delivering a controlled substance. On appeal, Roper claims that the trial court erred in overruling *902 his request for counsel at the resentencing hearing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties. The judgment is affirmed. Rule 30.25(b)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2006048/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.102 Page 1 of 5 ' ·~t,,, '•,"c_,
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case FILED '
UNITED STATES DISTRICT Corn T f,PR 2 7 2021
.. SOUTHERN DISTRICT OF CALIFORNIA CLERK. u.::. o-sr::i:1CT COURT Sou~~ !HSTRJCT CF CAi.lFCRNI;_ BY DEPuTY UNITED STATES OF AMERICA JUDGMENT IN A cu " H , V. (For Offenses Committed On or After November 1, 1987) JOE LUIS NAVA (I) Case Number: 3:20-CR-01563-WQH
Nathan Feneis Defendant's Attorney USM Number 79818-112 • - THE DEFENDANT: ISi pleaded guilty to count(s) I of the Superseding Information D was found guilty on count(s) after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offense(s):
Title and Section / Nature of Offense Count 21:952 and 960 - Importation OfMethamphetamine (Felony) ls
The defendant is sentenced as provided in pages 2 through -----=5___ of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. D The defendant has been found not guilty on count(s)
ISi Count(s) Underlying Indicttnent is dismissed on the motion of the United States.
IS] Assessment : $100.00 imposed
D JVTA Assessment*:$
*Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22. ISi No fine D Forfeiture pursuant to order filed , included herein. IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States Attorney of any material change in the defendant's economic circumstances. Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.103 Page 2 of 5
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 2 of 5 CASE NUMBER: 3:20-CR-01563-WQH
IMPRISONMENT The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: Forty-eight (48) months
• Sentence imposed pursuant to Title 8 USC Section 1326(b). ~ The court makes the following recommendations to the Bureau of Prisons: I. Incarceration in the Western Region as close to Southern CA as possible. 2. Residential Drug Abuse Program
D The defendant is remanded to the custody of the United States Marshal.
D The defendant must surrender to the United States Marshal for this district: • at - - - - - - - - - A.M. on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ • as notified by the United States Marshal.
The defendant must surrender for service of sentence at the institution designated by the Bureau of • Prisons: D on or before • as notified by the United States Marshal. D as notified by the Probation or Pretrial Services Office.
RETURN I have executed this judgment as follows:
Defendant delivered on to --------------- at _ _ _ _ _ _ _ _ _ _ _ _ , with a certified copy of this judgment.
UNITED STATES MARSHAL
By DEPUTY UNITED STATES MARSHAL
3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.104 Page 3 of 5
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: JOE LIBS NAVA (I) Judgment - Page 3 of 5 CASE NUMBER: 3:20-CR-01563-WQH
SUPERVISED RELEASE Upon release from imprisonment, the defendant will be on supervised release for a term of: Three (3) years
MANDATORY CONDITIONS 1. The defendant must not commit another federal, state or local crime. 2. The defendant must not unlawfully possess a controlled substance. 3. The defendant must not illegally possess a controlled substance. The defendant must refrain from any unlawful use of a controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter as determined by the court. Testing requirements will not exceed submission of more than 4 drug tests per month during the term of supervision, unless otherwise ordered by the court. D The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (check if applicable) 4. • The defendant must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution. (check if applicable) 5. 181The defendant must cooperate in the collection of DNA as directed by the probation officer. (check if applicable) 6. • The defendant must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where the defendant resides, works, is a student, or was convicted of a qualifying offense. (check if applicable) 7. • The defendant must participate in an approved program for domestic violence. (check if applicable) The defendant must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.
3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.105 Page 4 of 5
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 4 of 5 CASE NUMBER: 3:20-CR-01563-WQH
STANDARD CONDITIONS OF SUPERVISION As part of the defendant's supervised release, the defendant must comply with the following standard conditions of supervision. These conditions are imposed because they establish the basic expectations for the defendant's behavior while on supervision and identify the minimum tools needed by probation officers to keep informed, report to the court about, and bring about improvements in the defendant's conduct and condition.
l. The defendant must report to the probation office in the federal judicial district where they are authorized to reside within 72 hours of their release from imprisomnent, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.
2. After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when the defendant must report to the probation officer, and the defendant must report to the probation officer as instructed.
3. The defendant must not knowingly leave the federal judicial district where the defendant is authorized to reside without first getting permission from the court or the probation officer.
4. The defendant must answer truthfully the questions asked by their probation officer.
5. The defendant must live at a place approved by the probation officer. If the defendant plans to change where they live or anything about their living arrangements ( such as the people living with the defendant), the defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change.
6. The defendant must allow the probation officer to visit them at any time at their home or elsewhere, and the defendant must permit the probation officer to take any items prohibited by the conditions of their supervision that he or she observes in plain view.
7. The defendant must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment the defendant must try to fmd full- time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the defendant works or anything about their work (such as their position or their job responsibilities), the defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circmnstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change.
8. The defendant must not communicate or interact with someone they know is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, they must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
9. If the defendant is arrested or questioned by a law enforcement officer, the defendant must notify the probation officer within 72 hours.
10. The defendant must not own, possess, or have access to a frrearrn, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or lasers).
11. The defendant must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
2-:Tfllie probar10n officer determmes the aetendant poses a nsk to another person (mcludmg an organization), the probation officer may require the defendant to notify the person about the risk and the defendant must comply with that instruction. The probation officer may contact the person and confmn that the defendant notified the person about the risk.
13. The defendant must follow the instructions of the probation officer related to the conditions of supervision.
3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.106 Page 5 of 5
Ao 245B (CASD Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 5 of 5 CASE NUMBER: 3:20-CR-01563-WQH
SPECIAL CONDITIONS OF SUPERVISION
I. Submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(l)), other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The offender must warn any other occupants that the premises may be subject to searches pursuant to this condition.
An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that the offender has violated a condition of his supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.
2. Reside in a Residential Reentry Center (RRC) as directed by the probation officer for a period of up to 120 days (non-punitive).
3. The defendant shall participate in a cognitive behavioral treatment program as directed by the probation officer, and if deemed necessary by the probation officer. Such program may include group sessions led by a counselor, or participation in a program administered by the probation office. The defendant may be required to contribute to the cost of the service rendered (copayment) in the amount to be determined by the program officer, based on the defendant's ability to pay.
II
3:20-CR-01563-WQH | 2021-04-27 | [
"Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.102 Page 1 of 5 ' ·~t,,, '•,\"c_, AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case FILED ' UNITED STATES DISTRICT Corn T f,PR 2 7 2021 .. SOUTHERN DISTRICT OF CALIFORNIA CLERK. u.::. o-sr::i:1CT COURT Sou~~ !HSTRJCT CF CAi.lFCRNI;_ BY DEPuTY UNITED STATES OF AMERICA JUDGMENT IN A cu \" H , V. (For Offenses Committed On or After November 1, 1987) JOE LUIS NAVA (I) Case Number: 3:20-CR-01563-WQH Nathan Feneis Defendant's Attorney USM Number 79818-112 • - THE DEFENDANT: ISi pleaded guilty to count(s) I of the Superseding Information D was found guilty on count(s) after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offense(s): Title and Section / Nature of Offense Count 21:952 and 960 - Importation OfMethamphetamine (Felony) ls The defendant is sentenced as provided in pages 2 through -----=5___ of this judgment.",
"The sentence is imposed pursuant to the Sentencing Reform Act of 1984. D The defendant has been found not guilty on count(s) ISi Count(s) Underlying Indicttnent is dismissed on the motion of the United States. IS] Assessment : $100.00 imposed D JVTA Assessment*:$ *Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22. ISi No fine D Forfeiture pursuant to order filed , included herein. IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.",
"If ordered to pay restitution, the defendant must notify the court and United States Attorney of any material change in the defendant's economic circumstances. Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.103 Page 2 of 5 AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 2 of 5 CASE NUMBER: 3:20-CR-01563-WQH IMPRISONMENT The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: Forty-eight (48) months • Sentence imposed pursuant to Title 8 USC Section 1326(b). ~ The court makes the following recommendations to the Bureau of Prisons: I. Incarceration in the Western Region as close to Southern CA as possible.",
"2. Residential Drug Abuse Program D The defendant is remanded to the custody of the United States Marshal. D The defendant must surrender to the United States Marshal for this district: • at - - - - - - - - - A.M. on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ • as notified by the United States Marshal. The defendant must surrender for service of sentence at the institution designated by the Bureau of • Prisons: D on or before • as notified by the United States Marshal. D as notified by the Probation or Pretrial Services Office.",
"RETURN I have executed this judgment as follows: Defendant delivered on to --------------- at _ _ _ _ _ _ _ _ _ _ _ _ , with a certified copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL 3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.104 Page 3 of 5 AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case DEFENDANT: JOE LIBS NAVA (I) Judgment - Page 3 of 5 CASE NUMBER: 3:20-CR-01563-WQH SUPERVISED RELEASE Upon release from imprisonment, the defendant will be on supervised release for a term of: Three (3) years MANDATORY CONDITIONS 1.",
"The defendant must not commit another federal, state or local crime. 2. The defendant must not unlawfully possess a controlled substance. 3. The defendant must not illegally possess a controlled substance. The defendant must refrain from any unlawful use of a controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter as determined by the court. Testing requirements will not exceed submission of more than 4 drug tests per month during the term of supervision, unless otherwise ordered by the court. D The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse.",
"(check if applicable) 4. • The defendant must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution. (check if applicable) 5. 181The defendant must cooperate in the collection of DNA as directed by the probation officer. (check if applicable) 6. • The defendant must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where the defendant resides, works, is a student, or was convicted of a qualifying offense. (check if applicable) 7.",
"• The defendant must participate in an approved program for domestic violence. (check if applicable) The defendant must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page. 3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.105 Page 4 of 5 AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 4 of 5 CASE NUMBER: 3:20-CR-01563-WQH STANDARD CONDITIONS OF SUPERVISION As part of the defendant's supervised release, the defendant must comply with the following standard conditions of supervision.",
"These conditions are imposed because they establish the basic expectations for the defendant's behavior while on supervision and identify the minimum tools needed by probation officers to keep informed, report to the court about, and bring about improvements in the defendant's conduct and condition. l. The defendant must report to the probation office in the federal judicial district where they are authorized to reside within 72 hours of their release from imprisomnent, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.",
"2. After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when the defendant must report to the probation officer, and the defendant must report to the probation officer as instructed. 3. The defendant must not knowingly leave the federal judicial district where the defendant is authorized to reside without first getting permission from the court or the probation officer. 4. The defendant must answer truthfully the questions asked by their probation officer. 5. The defendant must live at a place approved by the probation officer. If the defendant plans to change where they live or anything about their living arrangements ( such as the people living with the defendant), the defendant must notify the probation officer at least 10 days before the change.",
"If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change. 6. The defendant must allow the probation officer to visit them at any time at their home or elsewhere, and the defendant must permit the probation officer to take any items prohibited by the conditions of their supervision that he or she observes in plain view. 7. The defendant must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment the defendant must try to fmd full- time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the defendant works or anything about their work (such as their position or their job responsibilities), the defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circmnstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change.",
"8. The defendant must not communicate or interact with someone they know is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, they must not knowingly communicate or interact with that person without first getting the permission of the probation officer. 9. If the defendant is arrested or questioned by a law enforcement officer, the defendant must notify the probation officer within 72 hours. 10. The defendant must not own, possess, or have access to a frrearrn, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or lasers).",
"11. The defendant must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court. 2-:Tfllie probar10n officer determmes the aetendant poses a nsk to another person (mcludmg an organization), the probation officer may require the defendant to notify the person about the risk and the defendant must comply with that instruction. The probation officer may contact the person and confmn that the defendant notified the person about the risk. 13. The defendant must follow the instructions of the probation officer related to the conditions of supervision.",
"3:20-CR-01563-WQH Case 3:20-cr-01563-WQH Document 37 Filed 04/27/21 PageID.106 Page 5 of 5 Ao 245B (CASD Rev. 1/19) Judgment in a Criminal Case DEFENDANT: JOE LUIS NAVA (I) Judgment - Page 5 of 5 CASE NUMBER: 3:20-CR-01563-WQH SPECIAL CONDITIONS OF SUPERVISION I. Submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(l)), other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The offender must warn any other occupants that the premises may be subject to searches pursuant to this condition. An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that the offender has violated a condition of his supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner. 2. Reside in a Residential Reentry Center (RRC) as directed by the probation officer for a period of up to 120 days (non-punitive).",
"3. The defendant shall participate in a cognitive behavioral treatment program as directed by the probation officer, and if deemed necessary by the probation officer. Such program may include group sessions led by a counselor, or participation in a program administered by the probation office. The defendant may be required to contribute to the cost of the service rendered (copayment) in the amount to be determined by the program officer, based on the defendant's ability to pay.",
"II 3:20-CR-01563-WQH"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/168043304/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 3d Cir. Certiorari denied. | 11-27-2022 | [
"C. A. 3d Cir. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9060319/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 6-K Report of Foreign Private Issuer Pursuant to Rule13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month ofMay 2010 Commission File Number 000-31062 Oncolytics Biotech Inc. [Missing Graphic Reference] (Translation of registrant’s name into English) Suite210, 1167 Kensington Crescent NW Calgary, Alberta, Canada T2N 1X7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form20-F or Form40-F. Form20-Fþ Form40-Fo Indicate by check mark if the registrant is submitting the Form6-K in paper as permitted by RegulationS-T Rule101(b)(1):o Note: RegulationS-T Rule101(b)(1) only permits the submission in paper of a Form6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form6-K in paper as permitted by RegulationS-T Rule101(b)(7):o Note: RegulationS-T Rule101(b)(7) only permits the submission in paper of a Form6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form6-K submission or other Commission filing on EDGAR. Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule12g3-2(b) under the Securities Exchange Act of 1934. Yeso Noþ If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule12g3-2(b):82- EXHIBIT NUMBER DESCRIPTION News Release Dated May 21, 2010 -Oncolytics Biotech® Inc. Announces Reovirus Research to be Presented at ASCO Annual Meeting SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Oncolytics Biotech Inc. (Registrant) Date:May 21, 2010 By: /s/Doug Ball Doug Ball Chief Financial Officer | [
"SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 6-K Report of Foreign Private Issuer Pursuant to Rule13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month ofMay 2010 Commission File Number 000-31062 Oncolytics Biotech Inc. [Missing Graphic Reference] (Translation of registrant’s name into English) Suite210, 1167 Kensington Crescent NW Calgary, Alberta, Canada T2N 1X7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form20-F or Form40-F. Form20-Fþ Form40-Fo Indicate by check mark if the registrant is submitting the Form6-K in paper as permitted by RegulationS-T Rule101(b)(1):o Note: RegulationS-T Rule101(b)(1) only permits the submission in paper of a Form6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form6-K in paper as permitted by RegulationS-T Rule101(b)(7):o Note: RegulationS-T Rule101(b)(7) only permits the submission in paper of a Form6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form6-K submission or other Commission filing on EDGAR.",
"Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule12g3-2(b) under the Securities Exchange Act of 1934. Yeso Noþ If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule12g3-2(b):82- EXHIBIT NUMBER DESCRIPTION News Release Dated May 21, 2010 -Oncolytics Biotech® Inc. Announces Reovirus Research to be Presented at ASCO Annual Meeting SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Oncolytics Biotech Inc. (Registrant) Date:May 21, 2010 By: /s/Doug Ball Doug Ball Chief Financial 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 |
|
C. A. Fed. Cir. Certiorari denied. | 11-27-2022 | [
"C. A. Fed. Cir. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9047314/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Motion for leave to dispense with printing granted only insofar as to dispense with the printing in the record on appeal of the exhibits, on condition that the originals thereof are filed with the clerk of this court on or before the Wednesday preceding the first day of the term for which the appeal is noticed for argument. Concur — Botein, P. J., Breitel, Stevens, Eager and Noonan, JJ. | 01-12-2022 | [
"Motion for leave to dispense with printing granted only insofar as to dispense with the printing in the record on appeal of the exhibits, on condition that the originals thereof are filed with the clerk of this court on or before the Wednesday preceding the first day of the term for which the appeal is noticed for argument. Concur — Botein, P. J., Breitel, Stevens, Eager and Noonan, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5722592/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied. | 10-24-2022 | [
"Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8382737/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 1 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiffs Hidalgo and Cameron Texas Counties by
its attorney, Special Counsel Rolando L. Rios, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to Plaintiffs
Hidalgo and Cameron Counties. They are made without prejudice to producing during discovery
or at trial information, documents, or data that are (a) subsequently discovered or determined to
be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c)
subsequently determined to have been omitted from these disclosures.
2. Plaintiffs Hidalgo and Cameron Counties reserves the right at any time to revise
and/or supplement these Initial Disclosures.
3. Plaintiffs Hidalgo and Cameron Counties hereby expressly reserves all objections
to the use for any purpose of these Initial Disclosures or any of the information and documents
referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiffs
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 2 of 164
Hidalgo and Cameron Counties make no representations or concessions regarding the relevancy
or appropriateness of any particular documents or types of documents.
4. Plaintiffs Hidalgo and Cameron Counties’ identification of individuals pursuant to
Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiffs from obtaining discovery of individuals
not presently identified. Plaintiffs Hidalgo and Cameron Counties incorporates all individuals
identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose,
and to rely upon the testimony of, all such individuals in support of its claims.
5. Plaintiffs Hidalgo and Cameron Counties’ identification or production of
documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession,
custody or control. Plaintiffs Hidalgo and Cameron Counties reserves the right to use all
documents produced by any party or non-party to this action. With these Initial Disclosures,
Plaintiffs Hidalgo and Cameron Counties are not identifying documents protected from
disclosure by the attorney-client, work product or other applicable privileges. Nor do Plaintiffs
Hidalgo and Cameron Counties waive the right to object to Defendants’ discovery requests on
any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiffs
Hidalgo and Cameron Counties may use to support Plaintiff’s claims as detailed in the First
Amended Complaint. Plaintiffs Hidalgo and Cameron Counties expressly reserves the right to
supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 3 of 164
Name Contact Information Subjects of Discoverable Information
Maria Arcelia Duran, Attorney Rolando L. Rios Maria Arcela Duran has knowledge of the CPA, Hidalgo County rrios@rolandorioslaw.com impact of decennial census population Auditor 210-413-7347 counts on local funding and budgets.
Martha Galarza, CPA, Attorney Rolando L. Rios Martha Galarza has knowledge of the Cameron County rrios@rolandorioslaw.com impact of decennial census population Auditors Office) 210-413-7347 counts on local funding and budgets.
Ramon Garcia, Attorney Rolando L. Rios The witness has knowledge of the impact of Hidalgo County Judge rrios@rolandorioslaw.com the citizenship question on community 210-413-7347 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census.
Eddie Trevino Jr., Attorney Rolando L. Rios The witness has knowledge of the impact of Cameron County rrios@rolandorioslaw.com the citizenship question on community Judge 210-413-7347 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
Plaintiffs Hidalgo and Cameron Counties have no documents to disclose at this time but
expressly reserves its right to supplement this disclosure:
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V.Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
DATED this 20th day of July, 2018.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 4 of 164
Respectfully Submitted,
Rolando L. Rios ROLANDO L. RIOS Texas State Bar # 16935900 Special Counsel 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Telephone: (210) 222-2102 Facsimile: (210) 222-2898 E-Mail: rrios@rolandorioslaw.com
Attorney for Plaintiffs HIDALGO AND CAMERON COUNTIES OF TEXAS
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 5 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff, the City of Central Falls (the “State of Rhode
Island”), by its attorney, Matthew T. Jerzyk, Bar Number 7945 of the State of Rhode Island, makes
the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Central Falls. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Central Falls reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Central Falls hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Central Falls
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 6 of 164
makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
4. Plaintiff City of Central Falls’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Central Falls incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Central Falls’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Central Falls reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of Central Falls is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of Central Falls waive the right to object to Defendants’
discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all
applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Central Falls may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of Central Falls expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Mayor James Contact through Counsel: The witness has knowledge of how the Diossa, City of City Solicitor addition of the citizenship question has Central Falls City of Central Falls 580 spread fear and confusion among city Broad Street Central Falls, residents who have been asked to
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 7 of 164
RI 02863 participate in the Census “Test Run” and MJerzyk@CentralFallsRI.us whether ICE would be notified. Rachel Flum, Contact through Counsel: The witness has knowledge of the impact of Economic Progress City Solicitor decennial census population counts on local Institute City of Central Falls 580 funding and budgets. Broad Street Central Falls, RI 02863 MJerzyk@CentralFallsRI.us Mario Bueno, Contact through Counsel: The witness has knowledge of the impact of Executive Director, City Solicitor the citizenship question on community Progreso Latino City of Central Falls 580 members’ willingness to participate in the Broad Street Central Falls, decennial census process. The witness has RI 02863 knowledge of the heightened fears surrounding the 2020 decennial census. MJerzyk@CentralFallsRI.us Witness has knowledge concerning outreach efforts conducted by the Census Bureau.
Gabriela Contact through Counsel: Witness has information regarding the Domenzain City Solicitor presence of hard-to-count populations in City of Central Falls 580 Central Falls and areas particularly vulnerable Broad Street Central Falls, to undercounting. RI 02863 MJerzyk@CentralFallsRI.us Kim Brace Contact through Counsel: Witness has information regarding the impact City Solicitor of the decennial census population count on City of Central Falls 580 the state redistricting process. Broad Street Central Falls, RI 02863 MJerzyk@CentralFallsRI.us John Marion, Contact through Counsel: The witness has information regarding Common Cause of City Solicitor Central Falls’s efforts to mitigate the impact Rhode Island City of Central Falls 580 of the citizenship question on non-response Broad Street Central Falls, rates. Witness has knowledge concerning RI 02863 outreach efforts conducted by the Census Bureau. MJerzyk@CentralFallsRI.us
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 8 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff City of Central Falls’s possession, custody, or control that may be used by Plaintiff City
of Central Falls to support its claims are described as follows. Plaintiff City of Central Falls
expressly reserves its right to supplement this disclosure:
Document Description Document Location “Census on Trial,” OpEd by Mayor James Diossa This document will be uploaded to Providence the central repository administered by the New York Attorney General’s Office. Statement of Former Census Directors on Adding a This document will be uploaded to New Question to the 2010 Census (Oct. 16, 2009) the central repository administered by the New York Attorney General’s Office. Press Conference Memo on Citizenship Question This document will be uploaded to the central repository administered by the New York Attorney General’s Office. U.S. Census Bureau, How a Question Becomes a Part of This document will be uploaded to the American Communities Survey (2017) the central repository administered by the New York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 9 of 164
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 17th day of July, 2018.
The City of Central Falls by and through its City Solicitor Matthew T. Jerzyk
/s/ Matthew T. Jerzyk NAME Matthew T. Jerzyk, Esq. (R.I. Bar No. 7945) City Solicitor City of Central Falls 580 Broad St. Central Falls, RI 02863 401-556-7412 MJerzyk@CentralFallsRI.us
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 10 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK,et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE,et al.,
Defendants.
Pursuant to Fed R Civ. P. 26(a)(1), Plaintiff City of Chicago (the "City of Chicago"), by
its attorney, Edward N. Siskel, the Corporation Counsel of the City of Chicago, makes the
following Initial Disclosures. INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Chicago. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Chicago reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Chicago hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Chicago
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 11 of 164
makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
4. Plaintiff City of Chicago's identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Chicago incorporates all individuals identified by all other
parties in Plaintiff's Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Chicago's identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Chicago reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of Chicago is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of Chicago waive the right to object to Defendants' discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Chicago may use to support Plaintiffs' claims as detailed in the First Amended Complaint.
Plaintiff City of Chicago expressly reserves the right to supplement this disclosure:
Name Contact Subiects of Discoverable Information Information Evelyn Rodriguez, Office Contact through Evelyn Rodriguez is an advisor for of the Mayor ofthe City Counsel for the neighborhood development and community of Chicago City of Chicago engagement and serves as a conduit to all communities and mana es artnershi s with 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 12 of 164
external stakeholders including those from the civic, faith-based, cultural and business communities. Appointed by the Mayor of Chicago, she serves as the City's designee on the Illinois Complete Count Commission. The Commission is developing and will recommend a 2020 Census outreach strategy and will be chaired by the IL Secretary of State. The witness has knowledge of Chicago's involvement and efforts in census outreach, which seeks to combat the undercount projected for the 2020 Census.
Bryan Esenberg, Deputy Contact through The witness has knowledge on issues related to Commissioner ofthe Counsel for the how the City of Chicago's grant funding and Multi-Family Finance and City of Chicago tax credits are affected by the decennial Census Housing Preservation count. Division of the Chicago Department of Planning and Development
Dr. Julie Morita, Contact through The witness has knowledge about how Commissioner ofthe Counsel for the inaccurate figures from the 2020 Census will Chicago Department of City of Chicago harm the ability of the Chicago Department of Public Health Public Health to serve local communities and to identify and treat communities with the greatest need, particularly in the area of disease prevention and control. The witness also has knowledge about how the City of Chicago's grant funding, particularly the Immunization Program, will be affected by the decennial Census count.
Jackie Tiema, Director of Contact through This witness has knowledge about the Chicago Grants Management for Counsel for the Department of Family &Support Services the Chicago Department City of Chicago ("DFSS")'s federal grant application process. of Family &Support Services
John Young, Political Contact through This witness has knowledge about local Director for Common Counsel for the funding and budgets. Cause Illinois City of Chicago
Celina Villanueva, NADP Contact through This witness has knowledge about impact of Youth Engagement Counsel for the the citizenship question on community & Manager for the Illinois City of Chicago members' willingness to participate in the Coalition for Immigrant decennial Census. Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 13 of 164
and Refugee Rights
Lawrence Benito, CEO Contact through This witness has knowledge about impact of
& Executive Director ofthe Counsel for the the citizenship question on community Illinois Coalition for City of Chicago members' willingness to participate in the Immigrant and Refugee decennial Census. Rights
Selma D'Souza, Contact through This witness has knowledge about impact of Executive Director ofthe Counsel for the the citizenship question on community Indo American Center City of Chicago members' willingness to participate in the decennial Census and local funding and budgets.
Judith Gethner, Executive Contact through This witness has knowledge about local Director of Illinois Counsel for the funding and budgets. Partners for Human City of Chicago Services
Jeff Raines, Contact through This witness has knowledge regarding the Communications and Counsel for the impact ofthe decennial Census population Engagement Director for City of Chicago count on the state redistricting process. Change Illinois
Jesus Garcia, Cook Contact through This witness has knowledge about the impact County Commissioner Counsel for the of the citizenship question, local funding and City of Chicago budgets, as well as the state redistricting process.
Anita Banerji, Director of Contact through This witness has been leading, facilitating and the Democracy Initiative Counsel for the making collaborative efforts with Illinois for Forefront City of Chicago advocates and grant-makers across the state for a fair and accurate Census in 2020, and has knowledge about the same. Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 14 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
Plaintiff City of Chicago expressly reserves its right to supplement these initial
disclosures by later identifying documents and electronically stored information in Plaintiff City
of Chicago's possession, custody, or control that may be used by Plaintiff City of Chicago to
support its claims.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures —Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures —Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) —Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 18th day of July, 2018.
Edward N. Siskel CORPORATION COUNSEL CITY OF CHICAGO
/s/ }1,~ ~J.t~ Christie L. Starzec Assistant Corporation Counsel City of Chicago Department of Law 30 North LaSalle Street, Suite 1230 Chicago, Illinois 60602 (312)744-7864 Christie.Starzec@cityofchicago.org
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 15 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 16 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 17 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 18 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 19 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 20 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 21 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 22 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 23 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of Columbus, by its
attorney, Zachary M. Klein of the City Attorney’s Office of Columbus, makes the following
Initial Disclosures. INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Columbus. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Columbus reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Columbus hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 24 of 164
Columbus makes no representations or concessions regarding the relevancy or appropriateness of
any particular documents or types of documents.
4. Plaintiff City of Columbus’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Columbus incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Columbus’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Columbus reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of Columbus is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of Columbus waive the right to object to Defendants’
discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all
applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Columbus may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of Columbus expressly reserves the right to supplement this disclosure:
Name Subjects of Discoverable Information
Anita Clark, fiscal manager in This witness has knowledge of how census driven funds are the Columbus Department of distributed to various City organizations and how such Health decisions are made. Witness also has information about how much money was expended by each City organization.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 25 of 164
Carolyn Thurman, Grants This witness has information regarding the grant formulas management coordinator, that are used to calculate how much funding the City of department of finance and Columbus will receive based on census data. management for the City of Columbus
Inna Kinney, CEO of This witness has knowledge of the impact census driven Economic Community funds have on the City of Columbus. Witness can also speak Development Institute on the hardship the city will face if such funds are not representative of our population.
Mohamud Jama, Director of This witness also has information regarding how an the New American Political additional citizenship question will affect Somali turnout in Action Committee the census and how a decrease in census-driven funds will affect this community.
Ramona Reyes, Director of This witness has information regarding how adding a Our Lady of Guadalope Center citizenship question to the census will affect Latino turnout. Witness also has information regarding how a decrease in census-driven funds will affect the Latino population in Columbus.
Roger Cloern, fiscal division at This witness has information regarding the grant formulas the Columbus Department of that are used to calculate how much funding the City of Health Columbus will receive based on census data.
Steve Fireman, GC of This witness has knowledge of the impact census driven Economic Community funds have on the City of Columbus. Witness can also speak Development Institute on the hardship the city will face if such funds are not representative of our population.
Each of the above listed witnesses can be contacted through counsel at the Columbus
City Attorney’s office. Contact information for counsel is:
Alexandra Pickerill or Richard Coglianese 77 North Front Street Columbus, Ohio 43215 (614)645-6945 (phone) (614)645-0818 (phone) (614)645-6949 (fax) anpickerill@columbus.gov rncoglianese@columbus.gov
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 26 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff City of Columbus’s possession, custody, or control that may be used by Plaintiff City of
Columbus to support its claims are described as follows. Plaintiff City of Columbus expressly
reserves its right to supplement this disclosure:
Document Description Document Location 2015 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2015. 2016 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2016. 2017 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2017. Assistance Data Catalog of Federal Domestic This document is at a central Assistance repository administered by the New York Attorney General’s Office 2017 Schedule of Expenditure and Federal Awards This document is at a central repository administered by the New York Attorney General’s Office 2017 Schedule of Expenditure and Federal Awards with This document is at a central hand-written department allocations. repository administered by the New York Attorney General’s Office
Details which departments within the City are given
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 27 of 164
federal funds based on the census data. Census Driven Federal Funds_Columbus This document is at a central repository administered by the New York Attorney General’s Office This excel spreadsheet shows where census-driven funds have been allocated in the City of Columbus.
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 28 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 12th day of July, 2018.
Zach Klein City Attorney of the City of Ohio
/s/ Zach Klein Zach Klein Columbus City Attorney 77 North Front Street Columbus Ohio, 43215 (614)645-7385 zmklein@columbus.gov
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 29 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Connecticut ("Connecticut”), by
its attorney, Mark F. Kohler, Assistant Attorney General, of the Connecticut Office of the
Attorney General, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to Plaintiff
Connecticut. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff Connecticut reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff Connecticut hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff Connecticut makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 30 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff Connecticut’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff Connecticut incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff Connecticut’s identification or production of documents pursuant to Rule
26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff
Connecticut reserves the right to use all documents produced by any party or non-party to this
action. With these Initial Disclosures, Plaintiff Connecticut is not identifying documents
protected from disclosure by the attorney-client, work product or other applicable privileges. Nor
does Plaintiff Connecticut waive the right to object to Defendants’ discovery requests on any
basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 31 of 164
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State
of Connecticut may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Connecticut expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Paul Potamianos, c/o Mark F. Kohler The witness has knowledge of Executive Budget Director, Assistant Attorney General the impact of decennial census State of Connecticut Office Connecticut Office of the population counts on state/local of Policy & Management Attorney General funding and budgets. 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 860-808-5020 Mark.Kohler@ct.gov
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
Plaintiff Connecticut does not have any documents or electronically stored information to
disclose at this time. Plaintiff Connecticut expressly reserves its right to supplement this
disclosure.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 32 of 164
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
GEORGE JEPSEN Attorney General of the State of Connecticut
/s/ Mark F. Kohler Mark F. Kohler Assistant Attorney General Connecticut Office of the Attorney General 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 860-808-5020 Mark.Kohler@ct.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 33 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
PLAINTIFF DISTRICT OF COLUMBIA’S INITIAL DISCLOSURES
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the District of Columbia, by its attorneys,
makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the
District of Columbia. They are made without prejudice to producing information, documents, or
data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b)
produced as a result of ongoing investigations, or (c) subsequently determined to have been
omitted from these disclosures during discovery or at trial.
2. Plaintiff District of Columbia reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff District of Columbia hereby expressly reserves all objections to the use of
these Initial Disclosures or any of the information and documents referenced herein in this case.
By referring to documents in the Initial Disclosures, Plaintiff District of Columbia makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 34 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
document or types of documents.
4. Plaintiff District of Columbia’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiffs from obtaining discovery of individuals not
presently identified. Plaintiff District of Columbia incorporates all individuals identified by all
other parties in these Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff District of Columbia’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff District of Columbia reserves the right to use all documents produced by any party or
non-party to this action. With these Initial Disclosures, Plaintiff District of Columbia is not
identifying documents protected from disclosure by the attorney-client, work product or other
applicable privileges. Nor does Plaintiff District of Columbia waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth,
and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff District
of Columbia may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff District of Columbia expressly reserves the right to supplement this disclosure:
Name Contact Subjects of Discoverable Information Information
Fitzroy Lee, PhD Office of the Witness has knowledge of the impact of Deputy CFO and Chief Attorney General decennial census population counts on Economist for the District of District of Columbia funding and budgets. Columbia, 441 4th
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 35 of 164
Street, N.W., Suite 630 South, Washington, DC 20001
Sam Zimbabwe Office of the Witness has knowledge of the impact of Chief Project Delivery Attorney General decennial census population counts on Officer for the District of highway planning and construction and Office of the Director Columbia, 441 4th other funding for the District. District Department of Street, N.W., Suite Transportation 630 South, Washington, DC 20001
Elisabeth Morse, Division Office of the Witness has knowledge of the impact of of Systems and Supports Attorney General decennial census population counts on (K-12) for the District of education and other funding for the D.C. Office of the State Columbia, 441 4th District. Superintendent of Street, N.W., Suite Education 630 South, Washington, DC 20001
Elizabeth Groginsky, Office of the Witness has knowledge of the impact of Division of Early Learning Attorney General decennial census population counts on D.C. Office of the State for the District of education and other funding for the Superintendent of Columbia, 441 4th District. Education Street, N.W., Suite 630 South, Washington, DC 20001
Gretchen Brumley, Office of the Witness has knowledge of the impact of Division of Student Attorney General decennial census population counts on Transportation for the District of education and other funding for the D.C. Office of the State Columbia, 441 4th District. Superintendent of Street, N.W., Suite Education 630 South, Washington, DC 20001
Corporate designee(s) of Office of the Witness has knowledge of the impact of the D.C. Department of Attorney General decennial census population counts on Human Services for the District of Supplemental Nutrition Assistance Columbia, 441 4th Program, Foster Care, WIC, and other Street, N.W., Suite funding for the District. 630 South,
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 36 of 164
Washington, DC 20001
Joy Phillips, PhD Office of the Witness has information regarding the Associate Director, D.C. Attorney General District of Columbia’s use of census State Data Center for the District of information, its previous and ongoing D.C. Office of Planning Columbia, 441 4th efforts to improve its residents’ responses Street, N.W., Suite to the census and the District’s Complete 630 South, Count Committee, the presence of hard- Washington, DC to-count populations in the District of 20001 Columbia, and areas particularly vulnerable to undercounting.
Corporate designee(s) of Office of the The witness has information regarding the the Executive Office of the Attorney General District of Columbia’s Complete Count Mayor for the District of Committee and its efforts to mitigate the Columbia, 441 4th impact of the citizenship question on non- Street, N.W., Suite response rates. Witness has knowledge 630 South, concerning outreach efforts conducted by Washington, DC the Census Bureau. 20001
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff District of Columbia’s possession, custody, or control that may be used to support its
claims are described as follows. Plaintiff District of Columbia expressly reserves its right to
supplement this disclosure:
Document Description Document Location Demographic reports concerning hard-to-count These documents are being populations prepared by the D.C. Office of Planning, and when in final form they will be provided to the New York Attorney General’s Office to be kept in a Central Repository. Proposals and plans to mitigate non-response. These documents are being prepared by the D.C. Complete Count Committee, and when in final form they will be provided to the New York Attorney General’s
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 37 of 164
Office to be kept in a Central Repository. Budget analyses of the impact of undercount. These documents are being prepared by the D.C. Office of the Chief Financial Officer, and when in final form they will be provided to the New York Attorney General’s Office to be kept in a Central Repository. D.C. Code § 1-1101.01 This document is at a central repository administered by the New York Attorney General’s Office. Report on Bill 19-219 the “Ward Redistricting This document is at a central Amendment Act of 2011” repository administered by the New York Attorney General’s Office. THE 2010 CENSUS: HOW COMPLETE COUNT This document is at a central COMMITTEES, LOCAL GOVERNMENTS, repository administered by the New PHILANTHROPIC ORGANIZATIONS, NOT-FOR- York Attorney General’s Office. PROFITS AND THE BUSINESS COMMUNITY CAN CONTRIBUTE TO AN ACCURATE CENSUS, HEARING BEFORE THE SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES OF THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES (Dec. 2, 2009) Subcommittee Report on Bill 14-137, the “Ward This document is at a central Redistricting Amendment Act of 2001” repository administered by the New York Attorney General’s Office. D.C. Code § 1-1041.02 This document is at a central repository administered by the New York Attorney General’s Office. D.C. Code § 1-309.03 This document is at a central repository administered by the New York Attorney General’s Office. D.C. Code § 2-1010 This document is at a central repository administered by the New York Attorney General’s Office.
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 38 of 164
D.C. Code § 6-1502 This document is at a central repository administered by the New York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff District of Columbia will provide disclosures of expert testimony as required by Rule
26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal
Rules of Civil Procedure.
DATED this 19th day of July, 2018.
KARL A. RACINE Attorney General for the District of Columbia
ROBYN R. BENDER* Deputy Attorney General, Public Advocacy Division
By: /s/ Valerie M. Nannery
Valerie M. Nannery, Assistant Attorney General (admitted pro hac vice) Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 valerie.nannery@dc.gov Tel. (202) 442-9596 Fax (202) 730-1465
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 39 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
V. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a) (1), Plaintiff the People of the State of Delaware, by its
attorney, David J. Lyons, Deputy Attorney General, (DE BAR ID 2341) of the State of Delaware,
Department of Justice, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Delaware. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff Delaware reserves the right at any time to revise and/or supplement these
Initial Disclosures.
3. Plaintiff Delaware hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff Delaware makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 40 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff Delaware’s identification of individuals pursuant to Rule 26(a) (1) (A) (i)
is not intended to preclude Plaintiff from obtaining discovery of individuals not presently
identified. Plaintiff Delaware incorporates all individuals identified by all other parties in
Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of,
all such individuals in support of its claims.
5. Plaintiff Delaware’s identification or production of documents pursuant to Rule
26(a) (1) (A) (ii) is limited to those documents within its possession, custody or control. Plaintiff
Delaware reserves the right to use all documents produced by any party or non-party to this action.
With these Initial Disclosures, Plaintiff Delaware is not identifying documents protected from
disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff
Delaware waive the right to object to Defendants’ discovery requests on any basis, including, but
not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
Delaware may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Delaware expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented research Delaware Office of David.lyons@state.de.us concerning estimates of the number of Management and (302) 577-8413 undocumented immigrants in Delaware as of 2014, Budget the prevalence of hard to count populations in Delaware’s three counties: New Castle, Kent, and
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 41 of 164
Sussex, as well as the number of people living in hard to count communities. Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented research Delaware Office of David.lyons@state.de.us concerning per capita benefits of $2214 in federal Management and (302) 577-8413 funding based on 16 large federal assistance Budget programs that distribute funds based on Decennial Census derived statistics.
Steven E. David J. Lyons, The witness has knowledge of documents and/or Yeatman, David.lyons@state.de.us information that address the following programs in Deputy Secretary (302) 577-8413 Delaware, which use Census information for the Department of formula for funds entitlement: Services for 1. Title 1 part D, Neglected and Delinquent Children, Youth Children This program provides formula grants to and Their Families SEAs for supplementary education services to help provide education continuity for children and youths in state-run institutions for juveniles and in adult correctional institutions
2.Individuals with Disabilities Education Act (IDEA) Part B, Section 611 (Supports ages 3 – 21)
3.IDEA Part B, Section 619 (Supports ages 3-5)
4.Stephanie Tubbs Jones Child Welfare Services: Title IV-B, Subpart 1 of the Social Security Act - Under the Stephanie Tubbs Jones Child Welfare Services (CWS) program, states may provide a broad range of services designed to support, preserve, and/or reunite children and their families. States are required to use funding received under the Promoting Safe and Stable Families Program (PSSF) Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented census Delaware Office of David.lyons@state.de.us statistics concerning Delaware’s percentage of Management and (302) 577-8413 initial self-response, as well as the costly follow Budget required to obtain an accurate count.
Stephen G. Bayer, David J. Lyons, The witness has knowledge of Delaware statutes Delaware Office of David.lyons@state.de.us concerning the necessity of accurate census data in Management and (302) 577-8413 state voter redistricting. At the federal level, Budget Delaware’s current population only allows for one representative to the U.S. House of Representatives.
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Stephen G. Bayer, David J. Lyons, The witness has knowledge of Delaware’s Delaware Office of David.lyons@state.de.us expending additional resources to mitigate any Management and (302) 577-8413 harm caused by an inaccurate census count to the Budget extent Delaware will be convening a “State Complete Count Commission” pursuant to a pending Executive Order of Delaware Governor John Carney.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Delaware’s possession, custody, or control that may be used by Plaintiff State of
Delaware to support its claims are described as follows. Plaintiff State of Delaware expressly
reserves its right to supplement this disclosure:
Document Description Documents Location Prevalence of Hard to Count Populations. http://www.censushardtocountmaps2020.us/ - Immigrants in Delaware. The American U.S. Census Bureau American Community Immigration Council. 331 G St. NW, Suite 200, Survey , 2012-2016 Washington, D.C. 20005 ( a nonpartisan nonprofit organization ) ; 2010 Census Coverage These documents are located at a central Measurement; repository administered by the New York Attorney General’s Office.
Losses in Federal Funding Due To An Inaccurate This document is located at a central repository Census Count. Source: “Counting for Dollars”. administered by the New York Attorney The George Washington Institute for Public General’s Office. Policy, The George Washington University, Washington, DC
Populations at Risk of Being Undercounted - http://www.censushardtocountmaps2020.us/ U.S. Census Tract examples based on latest These documents are located at a central Census estimates -2012-2016 - depicting Census repository administered by the New York Self Response and Hardest to Count (HTC) 2020 Attorney General’s Office. Tracts in the Nation. The Leadership Conference Education Fund citing: U.S. Census Bureau, 2011-2015 American Community Survey Estimates; Funders’ Committee for Civic Participation; “Census 2020, “What’s At Stake for Delaware Funders”, Keely Monroe, Funders’ Committee for Civic Participation;
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 43 of 164
Necessity of Accurate Census Data in This document is located at a central repository Redistricting. Source: Delaware Code, Title 29, administered by the New York Attorney Chapter 8 General’s Office.
Expending Additional Resources to Mitigate Upon receipt, this document will be placed at a Harm. Source: Pending Issuance and Receipt central repository located at and administered by of Order: State Complete Count Commission the New York Attorney General’s Office. via an Executive Order of Delaware Governor John Carney.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a) (2) on the
schedule directed by the Court and as required by Rule 26(a) (2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
DAVID J. LYONS, Deputy Attorney General of the State of Delaware
/s/ David J. Lyons David J. Lyons Deputy Attorney General Delaware Department of Justice Wilmington, DE 19801 303-577-8413 David.Lyons@state.de.us
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 44 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the County of El Paso, Texas,
by its attorney, Ian R. Kaplan, Assistant County Attorney of the El Paso County Attorney’s Office,
makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to Ian R.
Kaplan. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff, El Paso County Texas, reserves the right at any time to revise and/or
supplement these Initial Disclosures.
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3. Plaintiff, El Paso County Texas, hereby expressly reserves all objections to the use
for any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff El Paso County
Texas, makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
4. Plaintiff El Paso County Texas, identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff El Paso County Texas, incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff El Paso County Texas, identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff El Paso County Texas, reserves the right to use all documents produced by any party or
non-party to this action. With these Initial Disclosures, Plaintiff El Paso County Texas, is not
identifying documents protected from disclosure by the attorney-client, work product or other
applicable privileges. Nor does Plaintiff, El Paso County Texas, waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth,
and all applicable privileges.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 46 of 164
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff El Paso
County Texas, may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff El Paso County Texas, expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
El Paso County Judge El Paso County Attorney’s Office The witness has knowledge of Ruben J. Vogt/El Paso, 500 E. San Antonio, Ste. 503 the workings of El Paso Texas El Paso, Texas 79901 County Government. Telephone: 915.546.2050 County Chief El Paso County Attorney’s Office The witness has knowledge of Administrator Betsy C. 500 E. San Antonio, Ste. 503 the workings of El Paso Keller/El Paso, Texas El Paso, Texas 79901 County Government and Telephone: 915.546.2050 Budget.
County Budget and El Paso County Attorney’s Office The witness has knowledge of Fiscal Policy 500 E. San Antonio, Ste. 503 the workings of County Department Wallace El Paso, Texas 79901 Budget. Hardgrove/El Paso, Telephone: 915.546.2050 Texas
Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiff El Paso County has nothing to disclose at this time but expressly reserves its right
to supplement should any documents be found.
II. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
III. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
IV. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 47 of 164
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this the 19th day of July, 2018.
JO ANN BERNAL El Paso County Attorney 500 E. San Antonio, Ste. 503 El Paso, Texas 79901
/s/ Ian R. Kaplan IAN R. KAPLAN Assistant County Attorney El Paso County Attorney’s Office 500 E. San Antonio, Ste. 503 El Paso, Texas 79901 Telephone: 915.546.2050 Facsimile: 915.546.2133 Ian.Kaplan@epcounty.com
New York Bar No. 3976529 Texas Bar No. 24043747
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of Illinois (the “State
of Illinois”), by its attorney, Lisa Madigan, Attorney General of the State of Illinois, makes the
following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Illinois. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, (b) produced as a result of ongoing investigations, or (c) subsequently determined to have
been omitted from these disclosures.
2. Plaintiff State of Illinois reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff State of Illinois hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff State of Illinois makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 49 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff State of Illinois’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Illinois incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of Illinois’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody, or control.
Plaintiff State of Illinois reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff State of Illinois is not identifying
documents protected from disclosure by the attorney-client, work product, or other applicable
privileges. Nor does Plaintiff State of Illinois waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) Disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
Illinois may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff
State of Illinois expressly reserves the right to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 50 of 164
Name Contact Information Subjects of Discoverable Information
Erin Aleman, Office of the Illinois The witness has knowledge of the impact of Director of Planning Attorney General decennial census population counts on state and Programming, Matthew J. Martin transportation funding and budgets. Illinois Department of mmartin@atg.state.il.us Transportation (312) 814-8735
Annie Brooks, Office of the Illinois The witness has knowledge of the impact of Federal Liaison and Attorney General decennial census population counts on state Director of Title Matthew J. Martin education funding and budgets. Grants, Illinois State mmartin@atg.state.il.us Board of Education (312) 814-8735
Celina Villanueva, Office of the Illinois The witness has knowledge of the impact of NADP and Youth Attorney General the citizenship question on community Engagement Manager, Matthew J. Martin members’ willingness to participate in the Illinois Coalition for mmartin@atg.state.il.us decennial census process. The witness has Immigrant and Refugee (312) 814-8735 knowledge of the heightened fears Rights surrounding the 2020 decennial census.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) Disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Illinois’s possession, custody, or control that may be used by Plaintiff State of
Illinois to support its claims are described as follows. Plaintiff State of Illinois expressly reserves
its right to supplement this disclosure:
Document Description Document Location U.S. Unauthorized Immigration Population Estimates, PEW This document is at a central repository RESEARCH CTR. (Nov. 3, 2016) administered by the New York Attorney General’s Office.
Census 2020: Hard-to-Count Communities in Illinois, This document is at a central repository CUNY MAPPING SERVICE administered by the New York Attorney General’s Office.
Quick Facts: Illinois 2018, U.S. CENSUS BUREAU This document is at a central repository administered by the New York Attorney General’s Office.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 51 of 164
Grants to Local Educational Agencies, U.S. DEP’T OF This document is at a central repository EDUC. (July 3, 2018) administered by the New York Attorney General’s Office.
GW INSTITUTE OF PUBLIC POLICY, COUNTING FOR This document is at a central repository DOLLARS 2020: THE ROLE OF THE DECENNIAL CENSUS IN administered by the New York Attorney THE GEOGRAPHIC DISTRIBUTION OF FEDERAL FUNDS General’s Office. (2018)
GW INSTITUTE OF PUBLIC POLICY: COUNTING FOR This document is at a central repository DOLLARS 2020 #16: CHILD CARE AND DEVELOPMENT administered by the New York Attorney FUND—ENTITLEMENT (2017) General’s Office.
Immigrants in Illinois, AM. IMMIGRATION COUNCIL (Oct. 4, This document is at a central repository 2017) administered by the New York Attorney General’s Office.
Notice: Revised Apportionment of Federal-Aid Highway This document is at a central repository Program Funds for Fiscal Year (FY) 2017, FED. HIGHWAY administered by the New York Attorney ADMIN. (Dec. 21, 2016) General’s Office.
Table 3: FY 2017 Section 5307 and 5340 Urbanized Area This document is at a central repository Formula Appropriations (Full Year), FED. TRANSIT ADMIN. administered by the New York Attorney General’s Office.
20 Ill. Comp. Stat. 5100/15 This document is at a central repository administered by the New York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 52 of 164
DATED this 16th day of July, 2018.
LISA MADIGAN Attorney General of the State of Illinois
/s/ Matthew J. Martin Matthew J. Martin Public Interest Counsel Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-8735 mmartin@atg.state.il.us
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 53 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK,et al.,
Plaintiffs,
V. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE,et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the Iowa(the "State of Iowa"), by its attorney, Nathan Blake, Deputy Attorney General of the State of Iowa, makes the
following Initial Disclosures-
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Iowa. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff State of Iowa reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff State of Iowa hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff State of Iowa makes no Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 54 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff State of Iowa's identification of individuals pursuant to Rule
26(a)(l)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Iowa incorporates all individuals identified by all other
parties in Plaintiffs Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of Iowa's identification or production of documents pursuant to
Rule 26(a)(l)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff State ofIowa reserves the right to use all documents produced by any party or non-party
to this action. With these Initial Disclosures, Plaintiff State of Iowa is not identifying documents
protected from disclosure by the attorney-client, work product or other applicable privileges. Nor
does Plaintiff State of Iowa waive the right to object to Defendants' discovery requests on any
basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R,Civ. P. 26(a)(l)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State
of Iowa may use to support Plaintiffs claims as detailed in the First Amended Complaint.
Plaintiff State ofIowa expressly reserves the right to supplement this disclosure:
Name Contact Information Subiects ofDiscoverable Information
Joel Lunde Nathan Blake The witness has knowledge of the impact of Iowa Department of Office ofthe Iowa decennial census population counts on state Management Attomey General funding and budgets. 1305 E. Walnut St. Des Moines,lA 50314 515-281-4325 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 55 of 164
nathan.blake@ag.iowa.gov
Gary Krob Nathan Blake Witness has information regarding the State Data Center Office ofthe Iowa presence of hard-to-count populations in Attorney General Iowa, and areas particularly vulnerable to 1305 E. Walnut St. undercounting. Witness also has knowledge Des Moines,lA 50314 concerning outreach efforts in Iowa. 515-281-4325 nathan.bIake@ag.iowa.gov
Ed Cook Nathan Blake Witness has information regarding the impact Legislative Services Office ofthe Iowa ofthe decennial census population count on Agency Attomey General the state redistricting process. 1305 E. Walnut St. Des Moines,lA 50314 515-281-4325 nathan.blake@ag.iowa.gov
II. Fed R. Civ. P. 26(a)(l)(A)(H) disclosures:
The documents and electronically stored information (collectively, "Documents") in
Plaintiff State of Iowa's possession, custody, or control that may be used by Plaintiff State of
Iowa to support its claims are described as follows. Plaintiff State ofIowa expressly reserves its
right to supplement this disclosure:
Document Descriution Document Location ;
Plaintiff State ofIowa plans to utilize the documents These documents are at a central declared by other Plaintiffs in this litigation. repository administered by the New York Attomey General's Office.
III. Fed R. Civ. P. 26(a)(l)(A)(iii) disclosures - Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(l)(A)(iv) disclosures -Insurance Statements:
Not applicable.
V. Fed. R. Civ.P. 26(a)(2)(A)- Expert Testimony: Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 56 of 164
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this^h day of July, 2018.
THOMAS J. MILLER Attoriey Gei^ral of the Stat
Nathan Blake Deputy Attorney General Office ofthe Attorney General ofIowa 1305 E. Walnut St. DesMoines,lA 50314 515-281-4325 nathan.blake@ag.iowa.gov Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 57 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff State of Maryland, by its attorney, John
Grimm, Assistant Attorney General makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Maryland. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of Maryland reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of Maryland hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Maryland makes
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 58 of 164
no representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff State of Maryland’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Maryland incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of Maryland’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff State of Maryland reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff State of Maryland is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff State of Maryland waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
State of Maryland may use to support Plaintiff’s claims as detailed in the First Amended
Complaint. Plaintiff State of State of Maryland expressly reserves the right to supplement this
disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 59 of 164
Name Contact Information Subjects of Discoverable Information
Marc Nicole John R. Grimm This individual has knowledge of the state Deputy Secretary, Assistant Attorney General budget including how a decrease in Maryland Department of Maryland Office of the federal aid could affect the State of Budget and Management Attorney General Maryland. 200 St. Paul Place Staff at the Maryland Baltimore, MD 21202 The Maryland Department of Planning Department of Planning 410-576-6339 provides guidance, analysis, outreach, and 410-576-6955 (fax) support to ensure the state’s public assets jgrimm@oag.state.md.us are preserved and protected, and to achieve the state’s goals for economic, community, and environmental vitality. Individuals within the Department of Planning may have knowledge of Maryland’s redistricting process, and outreach efforts Maryland will undertake with respect to the 2020 decennial census.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Maryland’s possession, custody, or control that may be used by Plaintiff State of
Maryland to support its claims are described as follows. Plaintiff State of Maryland expressly
reserves its right to supplement this disclosure:
Document Description Document Location Md. Dep’t of Legislative This document is at a central repository administered by the New York Servs., Federal Funds Attorney General’s Office and is publicly available at History (Jan. 2016) http://mgaleg.maryland.gov/Pubs/BudgetFiscal/2016-Federal- Funds-History.pdf Md. FY2018 to FY2020 This document is at a central repository administered by the New York Consolidated Attorney General’s Office and is publicly available at Transportation Program, http://www.mdot.maryland.gov/newMDOT/Planning/ 2018 State Report on CTP/CTP_18_23_Final/CTP_FY2018-2023.pdf Transportation Md, Proposed Operating This document is at a central repository administered by the New York Budget, FY 2019 Attorney General’s Office and is publicly available at http://www.dbm.maryland.gov/budget/Pages/operbudhome.aspx
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 60 of 164
United States Census This document is at a central repository administered by the New York Bureau, Use of Census Attorney General’s Office and is publicly available at Bureau Data in Federal https://www2.census.gov/programs-surveys/decennial/2020/program- Funds Distribution (Sept. management/working-papers/Uses-of-Census-Bureau-Data-in-Federal- 2017) Funds-Distribution.pdf
Maryland Senate Bill 855 This document is at a central repository administered by the New York Attorney General’s Office and is publicly available at http://mgaleg.maryland.gov/webmga/ frmMain.aspx?id=sb0855&stab=01&pid=billpage&tab=subject3&ys= 2018RS GW Institute of Public This document is at a central repository administered by the New York Policy, Counting for Dollars Attorney General’s Office and is publicly available at 2020: The Role of the https://gwipp.gwu.edu/counting-dollars-2020-role-decennial-census- Decennial Census in the geographic-distribution-federal-funds Geographic Distribution of Federal Funds
United States Census This document is at a central repository administered by the New York Bureau, 2020 Census Attorney General’s Office and is publicly available at Operational Plan https://www.census.gov/programs-surveys/decennial-census/2020- census/planning-management/planning-docs/operational-plan.html United States Census This document is at a central repository administered by the New York Bureau, Press Release, Attorney General’s Office and is publicly available at Census Bureau Releases the https://www.census.gov/newsroom/press-releases/2018/roam-app.html Response Outreach Area Mapper Web Application (Feb. 7, 2018)
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 61 of 164
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 23rd day of June, 2018.
BRIAN E. FROSH Attorney General of Maryland
/s/ John R. Grimm JOHN R. GRIMM Assistant Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 410-576-6339 (tel.) 410-576-6955 (fax) jgrimm@oag.state.md.us
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 62 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the Commonwealth of Massachusetts, by its
attorney, Maura Healey, Attorney General of the Commonwealth of Massachusetts, makes the
following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the
Commonwealth of Massachusetts. They are made without prejudice to producing during
discovery or at trial information, documents, or data that are (a) subsequently discovered or
determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations,
or (c) subsequently determined to have been omitted from these disclosures.
2. Plaintiff the Commonwealth of Massachusetts reserves the right at any time to
revise and/or supplement these Initial Disclosures.
3. Plaintiff the Commonwealth of Massachusetts hereby expressly reserves all
objections to the use for any purpose of these Initial Disclosures or any of the information and
documents referenced herein in this case. By referring to documents in the Initial Disclosures,
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 63 of 164
Plaintiff the Commonwealth of Massachusetts makes no representations or concessions regarding
the relevancy or appropriateness of any particular documents or types of documents.
4. Plaintiff the Commonwealth of Massachusetts’s identification of individuals
pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of
individuals not presently identified. Plaintiff the Commonwealth of Massachusetts incorporates all
individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to
depose, and to rely upon the testimony of, all such individuals in support of its claims.
5. Plaintiff the Commonwealth of Massachusetts’s identification or production of
documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession,
custody or control. Plaintiff the Commonwealth of Massachusetts reserves the right to use all
documents produced by any party or non-party to this action. With these Initial Disclosures,
Plaintiff the Commonwealth of Massachusetts is not identifying documents protected from
disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff
the Commonwealth of Massachusetts waive the right to object to Defendants’ discovery requests
on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff the
Commonwealth of Massachusetts may use to support Plaintiff’s claims as detailed in the First
Amended Complaint. Plaintiff the Commonwealth of Massachusetts expressly reserves the right
to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 64 of 164
Name Contact Information Subjects of Discoverable Information
Michelle K. Tassinari, Miranda M. Cover Witness has knowledge of: Director/Legal Counsel, Ann E. Lynch Elections Division, Assistant Attorneys General -Complete Count activities within Office of the Secretary of Massachusetts Attorney General’s Massachusetts the Commonwealth of Office, Massachusetts One Ashburton Place, 18th Floor -State-level grant making to Boston, MA 02108 community groups to fund Tel. (617) 727-2200 outreach to hard-to-count Fax (617) 727-5762 populations and expand census mercy.cover@state.ma.us participation ann.lynch@state.ma.us Massachusetts Immigrant Miranda M. Cover Witness organization has and Refugee Advocacy Ann E. Lynch knowledge of: Coalition (MIRA) Assistant Attorneys General Massachusetts Attorney General’s -The impact of the citizenship Office, question on community members’ One Ashburton Place, 18th Floor willingness to participate in the Boston, MA 02108 decennial census process Tel. (617) 727-2200 Fax (617) 727-5762 -The heightened fears surrounding mercy.cover@state.ma.us the 2020 decennial census ann.lynch@state.ma.us -Outreach efforts conducted to encourage participation in the census and complete count activities
Phillip Granberry, PhD Miranda M. Cover Witness has knowledge of: Ann E. Lynch Assistant Attorneys General -The presence of hard-to-count Massachusetts Attorney General’s populations in Massachusetts Office, One Ashburton Place, 18th Floor -Areas particularly vulnerable to Boston, MA 02108 undercounting Tel. (617) 727-2200 -Surveying hard-to-count Fax (617) 727-5762 populations in Massachusetts mercy.cover@state.ma.us ann.lynch@state.ma.us
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
Plaintiff the Commonwealth of Massachusetts expressly reserves its right to supplement
this disclosure with documents or electronically stored information.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 65 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
By: /s Jonathan Miller Jonathan Miller, Assistant Attorney General Miranda Cover, Assistant Attorney General Ann E. Lynch, Assistant Attorney General Public Protection & Advocacy Bureau Massachusetts Attorney General’s Office One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Mercy.Cover@state.ma.us Ann.Lynch@state.ma.us Tel. (617) 727-2200 Fax (617) 727-5762
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 66 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Minnesota makes the following
Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Minnesota. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of Minnesota reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of Minnesota hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of
Minnesota makes no representations or concessions regarding the relevancy or appropriateness
of any particular documents or types of documents.
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 67 of 164
4. Plaintiff State of Minnesota’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Minnesota incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon
the testimony of, all such individuals in support of its claims.
5. Plaintiff State of Minnesota’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff State of Minnesota reserves the right to use all documents produced by any party or
non-party to this action. With these Initial Disclosures, Plaintiff State of Minnesota is not
identifying documents protected from disclosure by the attorney-client, work product or other
applicable privileges. Nor does Plaintiff State of Minnesota waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-
breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State
of Minnesota may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Minnesota expressly reserves the right to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 68 of 164
Name Contact Information Subjects of Discoverable Information
Susan Brower, May be contacted Witness has information regarding the Minnesota State through counsel for presence of hard-to-count populations in Demographer, the State of Minnesota, and areas particularly Minnesota State Minnesota. vulnerable to undercounting. The witness Demographic Center also has knowledge of the impact of decennial census population counts on state/local funding and budgets, the impact of the citizenship question on community members’ willingness to participate in the decennial census process, heightened fears surrounding the 2020 decennial census, Minnesota’s efforts to mitigate the impact of the citizenship question on non-response rates, outreach efforts conducted by the Census Bureau, and the impact of the decennial census population count on the state redistricting process.
Denise Anderson, Chief May be contacted The witness has knowledge of the impact Financial Officer, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Education Minnesota.
Daron Korte, Assistant May be contacted The witness has knowledge of the impact Commissioner, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Education Minnesota.
Leigh Schleicher, May be contacted The witness has knowledge of the impact Federal Program through counsel for of decennial census population counts on Division Director, the State of state/local funding and budgets. Minnesota Department Minnesota. of Education
Nick Greene, Director of May be contacted The witness has knowledge of the impact Property Tax Research, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Revenue Minnesota.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 69 of 164
Discovery is ongoing. Other individuals with relevant knowledge may be identified in
documents reference below or produced in discovery.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Minnesota’s possession, custody, or control that may be used by Plaintiff State
of Minnesota to support its claims are described as follows. Plaintiff State of Minnesota
expressly reserves its right to supplement this disclosure:
Document Description Document Location Documents that support the allegations in the First These documents are at a central Amended Complaint. repository administered by the New York Attorney General’s Office. Demographic reports regarding Minnesota, including its Many of these documents are hard-to-count populations publicly available. These documents are also either at the U.S. Census Bureau, at a central repository administered by the New York Attorney General’s Office, or both. The State of Minnesota’s outreach plans for the 2020 These documents are at a central census. repository administered by the New York Attorney General’s Office. Documents regarding the role of the decennial census in Many of these documents are the distribution of federal and state funds. publicly available. The U.S. Census Bureau also has some documents. Additional documents would be in the possession of federal governmental entities that implement the affected program, at a central repository administered by the New York Attorney General’s Office, or both.
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 70 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
OFFICE OF THE ATTORNEY GENERAL State of Minnesota
s/ Jacob Campion JACOB CAMPION Assistant Attorney General Atty. Reg. No. 0391274
445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1459 (Voice) (651) 282-5832 (Fax) jacob.campion@ag.state.mn.us
ATTORNEY FOR STATE OF MINNESOTA
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 71 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff County of Monterey, California (“Monterey
County”), by its attorney, William Litt, Deputy County Counsel, of the Office of the Monterey
County Counsel, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to
Monterey County. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff Monterey County reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff Monterey County hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff Monterey Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 72 of 164
County makes no representations or concessions regarding the relevancy or appropriateness of
any particular documents or types of documents.
4. Plaintiff Monterey County’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff Monterey County incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff Monterey County’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff Monterey County reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff Monterey County is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff Monterey County waive the right to object to Defendants’
discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all
applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff
Monterey County may use to support Plaintiff’s claims as detailed in the First Amended
Complaint. Plaintiff Monterey County expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Dewayne 168 West Alisal Street, 3rd The witness has knowledge of the impact Woods, Floor, Salinas, CA 93901; of decennial census population counts on Assistant please contact through Monterey County funding and budgets. County counsel
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 73 of 164
Administrative Officer, County of Monterey, Budget & Analysis Division,
Elliott 1000 South Main St., Ste. The witness has knowledge of the Robinson, 301, Salinas, CA 93901; potential impact of depressed decennial Director, please contact through census population counts on Monterey Monterey counsel County SNAP funding and on individuals County and families receiving aid under SNAP. Department of Social Services
Brent R. Nossaman, LLP, 1666 K The witness has knowledge of the sources Heberlee; Street, NW, Suite 500, and amounts of federal funding dependent federal lobbyist Washington, DC 20006; 202- on decennial census population counts for Monterey 887-1423; fax: 202-466- received by Monterey County and the County; 3215; impact of decennial census population bheberlee@nossaman.com counts on Monterey County funding and budgets.
Rosemary Y. 168 West Alisal Street, 3rd The witness is a leader for the County’s Soto, Floor, Salinas, CA 93901; Complete Count Committee as a partner Management please contact through with the U.S. Census Bureau. She will be Analyst III , counsel convening a group of Monterey County CAO/Office of departmental staff and community Community partners to develop a strategy for a full Engagement and communications and outreach plan to Strategic increase participation. Advocacy
Juan P. 168 West Alisal Street, 3rd The witness has knowledge of Monterey Rodriguez, Floor, Salinas, CA 93901; County demographic information and the Monterey please contact through potential impact that undercounting the County Civil counsel population will have on the services Rights Officer provided to the community, regardless of immigration status. The witness is aware of the anxiety and fear the potential use of this question has on Monterey County
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 74 of 164
residents and the negative effects – non- participation, among others – it will have.
Sabino F. 22 West Gabilan Street, The witness has knowledge of the impact Lopez, Center Salinas, Ca 93901; 831-753- of the citizenship question on community For Community 2324 x 12; slopez@cca- members’ willingness to participate in the Advocacy, viva.org decennial census process. The witness Interim has knowledge of the heightened fears Executive surrounding the 2020 decennial census. Director The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups.
Cesar Lara, 831-444-5060; The witness has knowledge of the impact Monterey Bay director@mbclc.org of the citizenship question on community Central Labor members’ willingness to participate in the Council, decennial census process. The witness Executive has knowledge of the heightened fears Director surrounding the 2020 decennial census. The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups.
Andrea Manzo, 606 Williams Road, Salinas, The witness has knowledge of the impact Building CA 93905; 831-717-1384; of the citizenship question on community Healthy andreabhc@actioncouncil.org members’ willingness to participate in the Communities - decennial census process. The witness East Salinas, has knowledge of the heightened fears Regional Equity surrounding the 2020 decennial census. Director The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups.
Larry Imwalle, 295 Main Street, Suite 300 The witness has knowledge of the impact Action Council, of the citizenship question on community
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 75 of 164
Executive Salinas, CA 93901; 831-783- members’ willingness to participate in the Director 1244; decennial census process. The witness larry@actioncouncil.org has knowledge of the heightened fears surrounding the 2020 decennial census. The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff Monterey County’s possession, custody, or control that may be used by Plaintiff
Monterey County to support its claims are described as follows. Plaintiff Monterey County
expressly reserves its right to supplement this disclosure:
Document Description Document Location County of Monterey Schedule of Expenditures of Monterey County Counsel and Federal Awards for the Year Ended June 30, 2016 State of New York Attorney General’s Office County of Montey Schedule of Expenditures of Federal Monterey County Counsel and Awards for the Year Ended June 30, 2017 State of New York Attorney General’s Office Uses of census Bureau Data in Federal Funds Monterey County Counsel and Distribution: A New Design for the 21st Century; State of New York Attorney version 1.0; issued September 2017 by U.S. Census General’s Office Bureau; prepared by Marisa Hotchkiss, Jessica Phelan.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 76 of 164
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 17th day of July, 2018.
/s/ Charles J. McKee County Counsel William M. Litt Deputy County Counsel Office of the County Counsel County of Monterey 168 West Alisal St., 3rd Fl. Salinas, CA 93901 McKeeCJ@co.monterey.ca.us LittWM@co.monterey.ca.us Tel. (831) 755-5045 Fax (831) 755-5283
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 77 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), the State of North Carolina, by its attorney, Joshua H.
Stein and Ryan Y. Park of the North Carolina Department of Justice, makes the following Initial
Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of North Carolina. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of North Carolina reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of North Carolina hereby expressly reserves all objections to the use
for any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of North
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 78 of 164
Carolina makes no representations or concessions regarding the relevancy or appropriateness of
any particular documents or types of documents.
4. Plaintiff State of North Carolina’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of North Carolina incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of North Carolina’s identification or production of documents
pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or
control. Plaintiff State of North Carolina reserves the right to use all documents produced by any
party or non-party to this action. With these Initial Disclosures, Plaintiff State of North Carolina
is not identifying documents protected from disclosure by the attorney-client, work product or
other applicable privileges. Nor does Plaintiff State of North Carolina waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth,
and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
North Carolina may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of North Carolina expressly reserves the right to supplement this disclosure:
Name Contact Subjects of Discoverable Information Information Michael E. Cline, PhD, 114 W. Edenton St. The witness has knowledge relating to the State Demographer, Raleigh, NC 27603 impact of the decennial census population Demographic and rpark@ncdoj.gov count on the federal and state post- Economic Analysis decennial census population estimates
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 79 of 164
Section, (919) 716-6400 process, the presence of hard-to-count North Carolina Office of populations in North Carolina, areas State Budget and particularly vulnerable to undercounting, Management 2020 Census planning, and the impacts of the decennial census counts on socioeconomic and demographic estimates (such as those derived through the Census Bureau’s American Community Survey and various Bureau of Labor Statistics surveys).
Debbie Collins, 114 W. Edenton St. The witness has knowledge relating to the Director, Raleigh, NC 27603 impact of the decennial census population Public Transportation rpark@ncdoj.gov counts on state transit funding and Division, (919) 716-6400 budgets. North Carolina Department of Transportation
Kevin Rich, 114 W. Edenton St. The witness has knowledge relating to the Budget Development Raleigh, NC 27603 impact of the decennial census population Analyst—Health and rpark@ncdoj.gov counts on state health, housing, and Human Services, (919) 716-6400 human services funding and budgets. North Carolina Office of State Budget and Management
Jennifer Neisner, 114 W. Edenton St. The witness has knowledge relating to the Budget Development Raleigh, NC 27603 impact of the decennial census population Analyst—Education, rpark@ncdoj.gov counts on state K-12 education funding North Carolina Office of (919) 716-6400 and budgets. State Budget and Management
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 80 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of North Carolina’s possession, custody, or control that may be used by Plaintiff
State of North Carolina to support its claims are described as follows. Plaintiff State of North
Carolina expressly reserves its right to supplement this disclosure:
Document Description Document Location Analysis of hard-to-count populations, demographic These documents will be at a reports relating to hard-to-count populations, budget central repository administered by requests related to Census promotional material, the New York Attorney General’s preparation of plans to mitigate non-response and Office. subsequent undercounting, and budget analyses of the impact of undercount.
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 81 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 18th day of July, 2018.
JOSHUA H. STEIN Attorney General of the State of North Carolina
/s Ryan Y. Park Ryan Y. Park Deputy Solicitor General North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 RPark@ncdoj.gov Tel. (919) 716-6400
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 82 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 83 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 84 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 85 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 86 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of New York (the
“State of New York”), by its attorney, Barbara Underwood, Attorney General of the State of New
York, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of New York. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, (b) produced as a result of ongoing investigations, or (c) subsequently determined
to have been omitted from these disclosures.
2. Plaintiff State of New York reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of New York hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff State of New York makes
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 87 of 164
no representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff State of New York’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of New York incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of New York’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody, or control.
Plaintiff State of New York reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff State of New York is not identifying
documents protected from disclosure by the attorney-client, work product, or other applicable
privileges. Nor does Plaintiff State of New York waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) Disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
New York may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of New York expressly reserves the right to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 88 of 164
Name Contact Information Subjects of Discoverable Information
John C. Traylor, New York State Office of The witness has knowledge of the impact of Executive Deputy the Attorney General decennial census population counts on Comptroller, Office of Ajay Saini federal funding to the State of New York, Operations, New York ajay.saini@ag.ny.gov and knowledge of resources expended by State Office of the (212) 416-8714 the State of New York to mitigate potential Comptroller undercounting during the decennial census.
Elizabeth OuYang, New York State Office of The witness has knowledge of the impact of Coordinator, the Attorney General the citizenship question on community NYCounts2020 Ajay Saini members’ willingness to participate in the ajay.saini@ag.ny.gov decennial census process, knowledge of the (212) 416-8714 heightened fears surrounding the 2020 decennial census, and knowledge of efforts to mitigate potential undercounting during the decennial census.
Individuals with whom Contact information is These witnesses have knowledge of the Secretary Ross within the custody and accuracy of representations made in the “personally had control of Defendants decision memo about their conversations specific conversations with Secretary Ross, and their positions on on the citizenship the citizenship question, including its question,” as potential impact on response rates, and the referenced in the importance of testing a citizenship question March 26, 2018 before adding it to the census questionnaire decision memo (AR001314)
Members of the Census Contact information is These witnesses have knowledge of the Scientific Advisory within the custody and typical processes for researching, designing, Committee and the control of Defendants testing and vetting questions before adding National Advisory them to census surveys, knowledge of the Committee recommendations made to the Census Bureau about concerns related to immigrant anxiety and its potential impact on non- response, and knowledge of the concerns expressed about adding a citizenship question to the 2020 Census questionnaire.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 89 of 164
Employees of the Contact information is These witnesses have knowledge of Department of within the custody and Defendants’ decision making process, Commerce, including control of Defendants history of the citizenship question, policies the Census Bureau, and and procedures, testing protocols, and Department of Justice testing conducted relating to the decennial census and American Community Survey.
These witnesses have information relating to the purported need for citizenship information, including alternative sources of data, and policies and practices relating to the enforcement of Section 2 of the Voting Rights Act.
These witnesses have knowledge of the impact of the citizenship question on census participation, barriers to response rates, and Defendants’ follow-up efforts.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) Disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of New York’s possession, custody, or control that may be used by Plaintiff State
of New York to support its claims are described as follows. Plaintiff State of New York expressly
reserves its right to supplement this disclosure:
Document Description Document Location A Portrait of Immigrants in New York, Office of the New This document is at a central repository York State Comptroller (Nov. 2016) administered by the New York Attorney General’s Office.
U.S. Unauthorized Immigration Population Estimates, Pew This document is at a central repository Research Ctr. (Nov. 3, 2016) administered by the New York Attorney General’s Office.
Census 2020: Hard-to-Count Communities in New York, This document is at a central repository CUNY Mapping Service administered by the New York Attorney General’s Office.
Quick Facts: New York 2018, U.S. Census Bureau This document is at a central repository administered by the New York Attorney General’s Office.
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 90 of 164
Grants to Local Educational Agencies, U.S. Dep’t of Educ. This document is at a central repository (July 3, 2018) administered by the New York Attorney General’s Office.
Counting for Dollars 2020: The Role of the Decennial This document is at a central repository Census in the Geographic Distribution of Federal Funds, administered by the New York Attorney GW Institute of Public Policy (2018) General’s Office.
FTA Allocations for Formula and Discretionary Programs This document is at a central repository by State FY 1998-2018, Federal Transit Administration administered by the New York Attorney General’s Office.
GW Institute of Public Policy: Counting for Dollars 2020 – This document is at a central repository New York, GW Institute of Public Policy (2017) administered by the New York Attorney General’s Office.
Immigrants in New York, Am. Immigration Council (Oct. 4, This document is at a central repository 2017) administered by the New York Attorney General’s Office.
Notice: Revised Apportionment of Federal-Aid Highway This document is at a central repository Program Funds for Fiscal Year (FY) 2017, Fed. Highway administered by the New York Attorney Admin. (Dec. 21, 2016) General’s Office.
Table 3: FY 2017 Section 5307 and 5340 Urbanized Area This document is at a central repository Formula Appropriations (Full Year), Fed. Transit Admin. administered by the New York Attorney General’s Office.
Publically available operational planning documents for the These documents are available at a 2020 Census from the U.S. Census Bureau, including all central repository administered by the versions of the 2020 Census Operation Plans, all 2020 New York Attorney General’s Office. Census Program Briefings and 2020 Census Program Management Reviews, and all 2020 Census Monthly Status Reports, U.S. Census Bureau
Publically available documents from the U.S. Census These documents are available at a Bureau regarding its historic practices, including Procedural central repository administered by the Histories of the 1980 Census, 1990 Census, the History of New York Attorney General’s Office. the 2000 Census, documents relating to the history of the 2010 Census, the Index of Questions from previous decennial censuses, and previous decennial census questionnaires
Publically available documents of memoranda and These documents are available at a recommendations made by the Census Scientific Advisory central repository administered by the Committee and the National Advisory Committee, and New York Attorney General’s Office. responses and updates from the U.S. Census Bureau to Advisory Committees, as well as charters of those committees
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 91 of 164
Publically available documents from the Census Bureau These documents are available at a regarding the Bureau’s typical process for making changes central repository administered by the to decennial census questions, including documents New York Attorney General’s Office. containing standards for research, testing, and evaluation of proposed changes to questions on the 2020 Census, and documents containing information about proposed changes to the Race and Ethnicity question, and proposals to add a Middle Eastern and North African category to the Race and Ethnicity question
Publically available documents from the Census Bureau These documents are available at a regarding previous and proposed efforts to mitigate non- central repository administered by the response during the decennial census, and to follow-up on New York Attorney General’s Office. non-response, including documents summarizing outreach efforts, planning and assessing non-response follow-up operations, and researching, designing and describing imputation methods
Publically available documents from the Census Bureau These documents are available at a regarding testing for the 2020 Census, including documents central repository administered by the planning, designing, and describing the implementation of New York Attorney General’s Office tests from 2012 to the present
Publically available documents from the Census Bureau These documents are available at a regarding rates of non-response to questions and surveys, central repository administered by the including the rates of non-response on the annual American New York Attorney General’s Office Community Survey
Respondent Confidentiality Concerns and Possible Effects This document is at a central repository on Response Rates and Data Quality for the 2020 Census, administered by the New York Attorney National Advisory Committee on Racial, Ethnic and Other General’s Office. Populations (Nov. 2, 2017)
Respondent Confidentiality Concerns in Multilingual This document is at a central repository Pretesting Studies and Possible Effects on Response Rates administered by the New York Attorney and Data Quality for the 2020 Census, U.S. Census Bureau General’s Office. (May 16-19, 2018)
Respondent Confidentiality Concerns, Memorandum for This document is at a central repository Associate Directorate for Research and Methodology administered by the New York Attorney (ADRM) from Center for Survey Management, U.S. Census General’s Office. Bureau (Sept. 20, 2017)
Uses of Census Bureau Data in Federal Funds Distribution, These documents are available at a U.S. Census Bureau, (Sept. 2017) central repository administered by the New York Attorney General’s Office
Documents relating to statistical policy issued by federal These documents are publicly available. agencies, including the Office of Management and Budget
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 92 of 164
and the Census Bureau, including but not limited to Statistical Policy Directives No. 1 and 2.
Documents included in the Administrative Record produced by Defendants
All documents identified by Defendants in their initial disclosures
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 23rd day of July, 2018.
Barbara Underwood Attorney General of the State of New York
/s/ Elena Goldstein Elena Goldstein Senior Trial Counsel New York State Office of the Attorney General 28 Liberty Street, 20th Fl. New York, NY 10005
7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 93 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of New Jersey, by its attorney,
Rachel Wainer Apter, of the Office of the Attorney General, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State of New
Jersey. They are made without prejudice to producing during discovery or at trial information, documents,
or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced
as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these
disclosures.
2. Plaintiff New Jersey reserves the right at any time to revise and/or supplement these Initial
Disclosures.
3. Plaintiff New Jersey hereby expressly reserves all objections to the use for any purpose of
these Initial Disclosures or any of the information and documents referenced herein in this case. By referring
to documents in the Initial Disclosures, Plaintiff New Jersey makes no representations or concessions
regarding the relevancy or appropriateness of any particular documents or types of documents.
4. Plaintiff New Jersey’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not
intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff New
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 94 of 164
Jersey incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and
reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.
5. Plaintiff New Jersey’s identification or production of documents pursuant to Rule
26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff New Jersey
reserves the right to use all documents produced by any party or non-party to this action. With these Initial
Disclosures, Plaintiff New Jersey is not identifying documents protected from disclosure by the attorney-
client, work product or other applicable privileges. Nor does Plaintiff New Jersey waive the right to object
to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and
all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of New
Jersey may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of
New Jersey expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information Leonard Preston Rachel Wainer Apter The witness has knowledge of New Bureau Chief, Labor Market Assistant Attorney General Jersey’s efforts to encourage Information Richard J. Hughes Justice participation in the decennial census in NJ State Data Center Complex the past. Division of Economic and 25 Market Street, 8th Floor Demographic Research Trenton, New Jersey 08625 Office of Research and Desk: (609) 376-2702 Information Rachel.Apter@njoag.gov Department of Labor and Workforce Development Lauren M. Zyriek Rachel Wainer Apter The witness has knowledge of how N.J. Director of Assistant Attorney General Assembly No. 4208, an Act Intergovernmental Affairs Richard J. Hughes Justice establishing the New Jersey Complete Office of the Secretary of Complex Count Commission, which was passed State 25 Market Street, 8th Floor by the legislature on June 30, 2018, Department of State Trenton, New Jersey 08625 will be implemented if signed by the Desk: (609) 376-2702 Governor. She also has knowledge of Rachel.Apter@njoag.gov New Jersey’s efforts to encourage participation in the 2020 census.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 95 of 164
Lynn Azarchi Rachel Wainer Apter The witness has knowledge of the Deputy Director, Office of Assistant Attorney General impact of decennial census population Management and Budget Richard J. Hughes Justice counts on state/local funding and Complex budgets. Or 25 Market Street, 8th Floor Trenton, New Jersey 08625 Dave Ridolfino Desk: (609) 376-2702 Department of the Treasury Rachel.Apter@njoag.gov Acting Director, Office of Management and Budget Scott Novakowski Rachel Wainer Apter The witness has knowledge of outreach Associate Counsel and Assistant Attorney General efforts that are being undertaken by Debevoise Legal Fellow Richard J. Hughes Justice non-profit organizations in New Jersey New Jersey Institute for Complex to ensure an accurate count. Social Justice 25 Market Street, 8th Floor Trenton, New Jersey 08625 Desk: (609) 376-2702 Rachel.Apter@njoag.gov Sara Cullinane Rachel Wainer Apter The witness has knowledge of the Executive Director Assistant Attorney General impact of the citizenship question on Make the Road New Jersey Richard J. Hughes Justice community members’ willingness to Complex participate in the 2020 census and 25 Market Street, 8th Floor heightened fears surrounding the 2020 Trenton, New Jersey 08625 census. She also has knowledge of Desk: (609) 376-2702 outreach efforts that are being Rachel.Apter@njoag.gov undertaken by non-profit organizations in New Jersey to ensure an accurate count.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in Plaintiff New
Jersey’s possession, custody, or control that may be used by Plaintiff New Jersey to support its claims are
described as follows. Plaintiff New Jersey expressly reserves its right to supplement this disclosure:
Document Description Document Location State of New Jersey, Assembly No. 4208, 218th Legislature, This document is at a central an Act establishing the New Jersey Complete Count repository administered by the New Commission York Attorney General’s Office
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 96 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule
directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure.
DATED this 20th day of July, 2018.
GURBIR S. GREWAL Attorney General of the State of New Jersey
/s/ Rachel Wainer Apter Assistant Attorney General Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor, West Wing Trenton, New Jersey 08625-0080 Desk: (609) 376-2702 | Cell: (609) 331-6401 Rachel.Apter@njoag.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 97 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of New York by its
attorney, Zachary W. Carter, Corporation Counsel of the City of New York, makes the following
Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to City of
New York. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff City of New York reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of New York hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff City of New York makes Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 98 of 164
no representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff City of New York’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of New York incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of New York’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of New York reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of New York is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of New York waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
New York may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of New York expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Joseph Salvo, Director of Ajay Saini Witness has information regarding the Population Division, NYC Assistant Attorney presence of hard-to-count populations in Department of City General NYC, and areas particularly vulnerable to Planning Civil Rights Bureau undercounting. Witness has knowledge
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 99 of 164
New York State concerning the outreach efforts conducted by Office of the Attorney the Census Bureau. General 28 Liberty Street, 20th Floor New York, NY 10271 (212) 416-8714
Peter Lobo, Deputy Ajay Saini Witness has information regarding the Director of Population Assistant Attorney presence of hard-to-count populations in Division, NYC General NYC, and areas particularly vulnerable to Department of City Civil Rights Bureau undercounting. Planning New York State Office of the Attorney General 28 Liberty Street, 20th Floor New York, NY 10271 (212) 416-8714
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff City of New York’s possession, custody, or control that may be used by Plaintiff City of
New York to support its claims are described as follows. Plaintiff City of New York expressly
reserves its right to supplement this disclosure:
Document Description Document Location The City of New York’s 2000 Census Appeal This document is at a central Documentation repository administered by the New Submitted to the Census Address List Appeals Office by York Attorney General’s Office. the New York City Department of City Planning, February 8, 2000.
2010 Census Local Review of Census Addresses This document is at a central (LUCA) Documentation repository administered by the New Submitted by the City of New York on December 17, York Attorney General’s Office. 2009.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 100 of 164
https://www.census.gov/programs-surveys/decennial- This document is at a central census/2020-census/planning-management/planning- repository administered by the New docs/operational-plan.html York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 20th day of July, 2018.
ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel: (212) 356-4055
By: ______/s/____________________ Tonya Jenerette Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 356-4055 tjeneret@law.nyc.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 101 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al., INITIAL DISCLOSURES (Plaintiff State Plaintiffs, of Oregon)
v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Oregon (the “State of Oregon”)
makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the State
of Oregon. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of Oregon reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of Oregon hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Oregon
makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 102 of 164
4. Plaintiff State of Oregon’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Oregon incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of Oregon’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff State of Oregon reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff State of Oregon is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff State of Oregon waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State
of Oregon may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Oregon expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Irma Linda Castillo, Oregon Commission on The witnesses have knowledge of the impact Chair Hispanic Affairs of the decennial census and citizenship c/o Scott Kaplan questioning on the Hispanic population and Dr. Daniel Lopez- Oregon Department of the related impact on public services available Ceballos, Vice Chair Justice to the Hispanic population. The witnesses 100 Market St. have knowledge of the risk and impact of Dr. Joseph Gallegos, Portland, OR 97201 undercount of the Hispanic population should Commission Member (971) 673-5037 a citizenship question be included in the Alberto Moreno, Past decennial census. The witnesses have
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 103 of 164
Chair knowledge that Oregon’s Hispanic population is a hard-to-count population for the census. The witnesses have knowledge of the impact of the citizenship question on community members’ willingness to participate in the decennial census process.
Chanpone Sinlapasai- Oregon Commission on The witness has knowledge of the impact of Okamura, J.D., Chair Asian and Pacific Islander the decennial census and citizenship Affairs questioning on the Asian and Pacific Islander c/o Scott Kaplan population and the related impact on public Oregon Department of services available to these populations. The Justice witnesses have knowledge that Oregon’s 100 Market St. Asian and Pacific Islander population is a Portland, OR 97201 hard-to-count population for the census. The (971) 673-5037 witness has knowledge of the risk and impact of undercount of the Asian and Pacific Islander population should a citizenship question be included in the decennial census. The witness has knowledge of the impact of the citizenship question on community members’ willingness to participate in the decennial census process.
Emily Nazarov, Oregon Department of The witness has knowledge of the impact of Government and Legal Education decennial census population counts on school Affairs Manager c/o Scott Kaplan funding and budgets, including the existence Oregon Department of of unauthorized immigrants (including U.S. Justice citizen children) in Oregon’s K-12 school 100 Market St. population, ODE’s policies and practices Portland, OR 97201 towards the same and the census impact on (971) 673-5037 ODE programs including meal programs.
Belit Burke, Self- Oregon Department of The witness has knowledge of the presence of Sufficiency Design Human Services populations in Hispanic, Alaska Native and Administrator c/o Scott Kaplan Native American communities, and other Oregon Department of areas and communities particularly vulnerable Justice to undercounting. The witness has 100Market St. information regarding Oregon’s reliance on Portland, OR 97201 the decennial census statistics for important (971) 673-5037 supplemental nutrition (SNAP) and food stamps programs, which currently serves about 20% of Oregon’s residents, and the Child Care and Development Fund.
John T. Baker, Oregon Department of The witness has information regarding the Transportation Transportation impact of an undercount on funding for Economist c/o Scott Kaplan highway construction and maintenance within Oregon Department of the State through the Highway Trust Fund and Justice other federal infrastructure funding programs, 100 Market St. including crucial North-South and East-West
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 104 of 164
Portland, OR 97201 highways such as Interstates 5 and 84. (971) 673-5037 Person most Oregon Health Authority The witness has information regarding knowledgeable (to be c/o Scott Kaplan Oregon’s reliance on the federal Health determined) Oregon Department of Center Program for medical care to migrant Justice and other underserved communities within the 100 Market St. State, as well as Oregon’s reliance on the Portland, OR 97201 Medical Assistance Program (“Medicaid”). (971) 673-5037 The witness has information regarding Oregon’s reliance on the decennial census for funding of this program, and the impact an undercount of Oregon’s population could have on this funding and program.
Charles Rynerson, State Data Center, The witness has knowledge of the impact Coordinator Population Research of decennial census population counts on Center, Portland State state and local funding and budgets. The University witness has information regarding demographic, economic, and social statistics produced by the Census Bureau relating to the State of Oregon. The witness is knowledgeable about Oregon state and local outreach efforts and census data. Officers, employees and Contact information not Information regarding the processes by which representatives of currently known defendants proposed a citizenship question for defendants identified by the 2020 census, the stated and actual reasons defendants and by for adding this question, the persons involved plaintiffs herein in this decision, and the likely effects of the decision.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Oregon’s possession, custody, or control that may be used by Plaintiff State of
Oregon to support its claims are described as follows. Plaintiff State of Oregon expressly
reserves its right to supplement this disclosure:
Document Description Document Location Documents relating to current school funding and budgets, From Oregon Department of including the number of unauthorized immigrants (including Education. The document(s) will be U.S. citizen children) in Oregon’s K-12 school population, made available at a central document Special Education funding and the School Breakfast and repository administered by the New
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 105 of 164
National School Lunch Programs. York Attorney General’s Office.
Documents relating to the presence of hard-to-count From Oregon Department of Human populations in Hispanic, Alaska Native and Native American Services. The document(s) will be communities, and other areas particularly vulnerable to made available at a central document undercounting, as well as documents relating to Oregon’s use repository administered by the New of and funding source(s) for supplemental nutrition (SNAP) York Attorney General’s Office. and food stamps programs and the Child Care and Development Fund.
Documents relating to funding for highway construction and From Oregon Department of maintenance within the State through the Highway Trust Transportation. The document(s) will Fund and other federal infrastructure funding programs. be made available at a central document repository administered by the New York Attorney General’s Office.
Documents relating to Oregon’s use of funds from the federal From Oregon Health Authority. The Health Center Program for medical care to migrant and other document(s) will be made available at underserved communities within the State, and the Medical a central document repository Assistance Program (“Medicaid”). administered by the New York Attorney General’s Office.
Documents relating to the Oregons past practice of The document(s) will be made expending resources towards community outreach and available at a central document encouraging participation in the Census. repository administered by the New York Attorney General’s Office.
Documents relating to the impact of decennial census From Oregon State Treasurer. The population counts on state and local funding and budgets. document(s) will be made available at a central document repository administered by the New York Attorney General’s Office.
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 106 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff State of Oregon will provide disclosures of expert testimony as required by Rule
26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal
Rules of Civil Procedure.
DATED this 20th day of July, 2018.
Ellen Rosenblum Attorney General of the State of Oregon
/s/ Scott J. Kaplan Scott J. Kaplan. pro hac vice Senior Assistant Attorney General Oregon Department of Justice 100 Market St. Portland, OR 97201 971-673-5037 Scott.j.kaplan@doj.state.or.us
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 107 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the Commonwealth of Pennsylvania, by its
attorney, Michael J. Fischer, Chief Deputy Attorney General, makes the following Initial
Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the
Commonwealth of Pennsylvania. They are made without prejudice to producing during discovery
or at trial information, documents, or data that are (a) subsequently discovered or determined to be
relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff Commonwealth of Pennsylvania reserves the right at any time to revise
and/or supplement these Initial Disclosures.
3. Plaintiff Commonwealth of Pennsylvania hereby expressly reserves all objections
to the use for any purpose of these Initial Disclosures or any of the information and documents
referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 108 of 164
Commonwealth of Pennsylvania makes no representations or concessions regarding the relevancy
or appropriateness of any particular documents or types of documents.
4. Plaintiff Commonwealth of Pennsylvania’s identification of individuals pursuant
to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals
not presently identified. Plaintiff Commonwealth of Pennsylvania incorporates all individuals
identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and
to rely upon the testimony of, all such individuals in support of its claims.
5. Plaintiff Commonwealth of Pennsylvania’s identification or production of
documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession,
custody or control. Plaintiff Commonwealth of Pennsylvania reserves the right to use all
documents produced by any party or non-party to this action. With these Initial Disclosures,
Plaintiff Commonwealth of Pennsylvania is not identifying documents protected from disclosure
by the attorney-client, work product or other applicable privileges. Nor does Plaintiff
Commonwealth of Pennsylvania waive the right to object to Defendants’ discovery requests on
any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff
Commonwealth of Pennsylvania may use to support Plaintiff’s claims as detailed in the First
Amended Complaint. Plaintiff Commonwealth of Pennsylvania expressly reserves the right to
supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 109 of 164
Name Contact Information Subjects of Discoverable Information
Anne Baloga c/o Michael Fischer The witness has knowledge of the Deputy Secretary Pennsylvania Office of impact of decennial census Pennsylvania Office of the Attorney General population counts on state/local Budget 1600 Arch St., Suite 300 funding and budgets as well as Philadelphia, PA 19103 knowledge of Pennsylvania’s efforts to ensure an accurate 2020 (215) 560-2171 decennial census, including efforts to identify hard-to-count populations.
David Brinton c/o Michael Fischer The witness has knowledge of Local Government Policy Pennsylvania Office of Pennsylvania’s efforts to ensure an Manager Attorney General accurate 2020 decennial census, Pennsylvania Department 1600 Arch St., Suite 300 including efforts to identify hard- of Community & Economic Philadelphia, PA 19103 to-count populations, as well as Development knowledge of outreach efforts (215) 560-2171 conducted by the Census Bureau.
Richard Vilello c/o Michael Fischer The witness has knowledge Deputy Secretary for Pennsylvania Office of Pennsylvania’s efforts to ensure an Community Affairs and Attorney General accurate 2020 decennial census, Development 1600 Arch St., Suite 300 including efforts to identify hard- Pennsylvania Department Philadelphia, PA 19103 to-count populations, as well as of Community & Economic knowledge of outreach efforts Development (215) 560-2171 conducted by the Census Bureau.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
At this time, Plaintiff Commonwealth of Pennsylvania does not identify any documents
and electronically stored information pursuant to Fed R. Civ. P. 26(a)(1)(A)(ii). Plaintiff
Commonwealth of Pennsylvania expressly reserves its right to supplement this disclosure.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 110 of 164
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania
/s/ Michael J. Fischer Michael J. Fischer Chief Deputy Attorney General Office of Attorney General 1600 Arch Street, Suite 300 Philadelphia, PA 19103 (215) 560-2171 mfischer@attorneygeneral.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 111 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City of Philadelphia, by its attorney,
Benjamin H. Field, Deputy City Solicitor of the City of Philadelphia, makes the following Initial
Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Philadelphia. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Philadelphia reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Philadelphia hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Philadelphia
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 112 of 164
makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
4. Plaintiff City of Philadelphia’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Philadelphia incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Philadelphia’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Philadelphia reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of Philadelphia is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of Philadelphia waive the right to object to Defendants’
discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all
applicable privileges.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 113 of 164
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Philadelphia may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of Philadelphia expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Vaugh Ross Benjamin H. Field The witness has knowledge of the Deputy Chief of Staff Deputy City Solicitor actions Philadelphia has taken and Mayor’s Office Philadelphia Law will need to take to attempt to City of Philadelphia Department minimize an undercount resulting (215) 683-5024 from the addition of a citizenship Benjamin.Field@phila.gov question and meetings the City has had with Census Bureau officials on the issue.
Ashley del Bianco Benjamin H. Field The witness has knowledge of the Chief Grants Officer Deputy City Solicitor grants funds the City receives City of Philadelphia Philadelphia Law from the state and federal Department government that are dependent on (215) 683-5024 census population counts and how Benjamin.Field@phila.gov an undercount would affect the amount of funds received by Philadelphia.
Ajeenah S. Amir Benjamin H. Field The witness knowledge related to Director Deputy City Solicitor her role in coordinating the City’s Mayor’s Office of Public Philadelphia Law outreach efforts to avoid an Engagement (OPE) Department undercount in the 2020 census if City of Philadelphia (215) 683-5024 the citizenship question is added. Benjamin.Field@phila.gov
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 114 of 164
Miriam E. Enriquez, Benjamin H. Field The witness has knowledge related Esq. Deputy City Solicitor to the populations of hard-to-count Director Philadelphia Law populations including documented Office of Immigrant Department and undocumented immigrants in Affairs (215) 683-5024 Philadelphia, and the heightened City of Philadelphia Benjamin.Field@phila.gov climate of fear among those populations resulting from the current administration’s immigration actions, including the proposal to add a citizenship question to the census/
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff City of Philadelphia’s possession, custody, or control that may be used by Plaintiff City
of Philadelphia to support its claims are described as follows. Plaintiff City of Philadelphia
expressly reserves its right to supplement this disclosure:
Document Description Document Location Annual grant award documents These documents will be provided to the NYAG’s and kept at a central repository administered by that office. Philadelphia Research Initiative, Pew Charitable http://www.pewtrusts.org/en/research- Trusts, Philadelphia’s Immigrants (June 7, 2018). and- analysis/reports/2018/06/07/philadelphias- immigrants
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 115 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 19th day of July, 2018.
MARCEL S. PRATT CITY SOLICITOR for the CITY OF PHILADELPHIA
/s/ Benjamin H. Field Benjamin H. Field Deputy City Solicitor City of Philadelphia Law Department 1515 Arch Street, 15th Floor Philadelphia, PA 19102 (215) 683-5024 Benjamin.Field@phila.gov
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 116 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff City of Pittsburgh makes the following Initial
Disclosures. INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Pittsburgh. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Pittsburgh reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Pittsburgh hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Pittsburgh makes
no representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 117 of 164
4. Plaintiff City of Pittsburgh’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Pittsburgh incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Pittsburgh’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Pittsburgh reserves the right to use all documents produced by any party or non-
party to this action. With these Initial Disclosures, Plaintiff City of Pittsburgh is not identifying
documents protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff City of Pittsburgh waive the right to object to Defendants’ discovery
requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Pittsburgh may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of Pittsburgh expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Mike Petrucci c/o City of Pittsburgh The witness has knowledge of the Assistant Director, Law Dept., 414 Grant impact of decennial census population Community Development Street, Pittsburgh, PA counts on City of Pittsburgh Office of Management and 15219 funding/budgets, including the City’s Budget reliance on funding from Community Development Block Grant programs. Feyisola Alabi c/o City of Pittsburgh The witness is the City of Pittsburgh’s Special Initiatives Manager, Law Dept., 414 Grant representative on the Complete Count
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 118 of 164
Welcoming Pittsburgh Street, Pittsburgh, PA Commission being formed by the City (Manager) 15219 of Pittsburgh and Allegheny County, Office of the Mayor and has knowledge of the presence of hard-to-count populations in the City, the City’s efforts to reach them, and the City’s efforts to mitigate the impact of a citizenship question on response rates.
Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in
Plaintiff City of Pittsburgh’s possession, custody, or control that may be used by Plaintiff City of
Pittsburgh to support its claims are described as follows. Plaintiff City of Pittsburgh expressly
reserves its right to supplement this disclosure:
Document Description Document Location Information as to funds received by the City of This information is at a central Pittsburgh pursuant to the CDBG program. repository administered by the New York Attorney General’s Office, and/or maintained by Defendants and available via HUD’s Integrated Disbursement and Information System (IDIS). Any documents related to the formation and activities of This information will be at a central the anticipated City-County Complete Count repository administered by the New Commission, relating to efforts to mitigate impact of the York Attorney General’s Office. citizenship question.
II. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
III. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 119 of 164
IV. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 23d day of July, 2018.
YVONNE S. HILTON Acting City Solicitor
s/ Matthew S. McHale, Esq. Matthew S. McHale, Esq. (Pa. ID No. 91880) Admitted pro hac vice Associate City Solicitor City of Pittsburgh Law Department 414 Grant Street, Pittsburgh, PA 15219 (412) 255-2015 matthew.mchale@pittsburghpa.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 120 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of Providence, by its
attorney, Jeffrey Dana, City Solicitor of the City of Providence, makes the following Initial
Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Providence. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff City of Providence reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff City of Providence hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 121 of 164
Providence, makes no representations or concessions regarding the relevancy or appropriateness
of any particular documents or types of documents.
4. Plaintiff City of Providence’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Providence incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon
the testimony of, all such individuals in support of its claims.
5. Plaintiff City of Providence’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Providence reserves the right to use all documents produced by any party or
non-party to this action. With these Initial Disclosures, Plaintiff City of Providence is not
identifying documents protected from disclosure by the attorney-client, work product or other
applicable privileges. Nor does Plaintiff City of Providence waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-
breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Providence may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff City of Providence expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Gabriela Domenzain, City of Providence The witness has knowledge of the impact Latino Policy Institute Office of the City Solicitor of the citizenship question on community 444 Westminster Street, members’ willingness to participate in the Suite 220 decennial census process. The witness has knowledge of the heightened fears
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 122 of 164
Providence, RI 02903 surrounding the 2020 decennial census. (401) 680-5333 Witness has knowledge concerning outreach efforts conducted by the Census Bureau.
John Marion, Common City of Providence The witness has information regarding the Cause Rhode Island Office of the City Solicitor Complete Count Committee’s efforts to 444 Westminster Street, mitigate the impact of the citizenship Suite 220 question on non-response rates. Witness Providence, RI 02903 has knowledge concerning outreach efforts conducted by the Census Bureau. (401) 680-5333
Henrietta White-Holder, City of Providence The witness has knowledge of the impact Higher Ground Office of the City Solicitor of the citizenship question on community International 444 Westminster Street, members’ in hard to count communities Suite 220 willingness to participate in the decennial census process. The witness has Providence, RI 02903 knowledge of the heightened fears (401) 680-5333 surrounding the 2020 decennial census. Witness has knowledge concerning outreach efforts conducted by the Census Bureau.
David DosReis, GIS City of Providence Witness has information regarding the Manager Office of the City Solicitor presence of hard-to-count populations in 444 Westminster Street, Providence, and areas particularly Suite 220 vulnerable to undercounting. Providence, RI 02903 (401) 680-5333
Emily Freedman, City of Providence The witness has knowledge of the impact Director of Community Office of the City Solicitor of decennial census population counts on Development 444 Westminster Street, state/local funding and budgets. Suite 220 Providence, RI 02903 (401) 680-5333
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 123 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The City of Providence does not have documents that may be used to support its claims at
this time. The City of Providence reserves the right to supplement this disclosure.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 17th day of July, 2018.
Jeffrey Dana City Solicitor of the City of Providence
/s/Jeffrey Dana Jeffrey Dana City Solicitor City of Providence 444 Westminster Street, Suite 220 Providence, RI 02903 (401) 680-5333 Jdana@providenceri.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 124 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of Rhode Island, by its
attorney, Peter F. Kilmartin, Attorney General of the State of Rhode Island, makes the following
Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the
Plaintiff State of Rhode Island. They are made without prejudice to producing during discovery or
at trial information, documents, or data that are (a) subsequently discovered or determined to be
relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of Rhode Island reserves the right at any time to revise and/or
supplement these Initial Disclosures.
3. Plaintiff State of Rhode Island hereby expressly reserves all objections to the use
for any purpose of these Initial Disclosures or any of the information and documents referenced
herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Rhode
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 125 of 164
Island makes no representations or concessions regarding the relevancy or appropriateness of any
particular documents or types of documents.
4. Plaintiff State of Rhode Island’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff State of Rhode Island incorporates all individuals identified by all
other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff State of Rhode Island’s identification or production of documents pursuant
to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff State of Rhode Island reserves the right to use all documents produced by any party or
non-party to this action. With these Initial Disclosures, Plaintiff State of Rhode Island is not
identifying documents protected from disclosure by the attorney-client, work product or other
applicable privileges. Nor does Plaintiff State of Rhode Island waive the right to object to
Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth,
and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
Rhode Island may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Rhode Island expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
John Marion, 245 Waterman Street, The witness has knowledge of the impact Executive Director, Suite 400A, of decennial census population counts on Common Cause RI Providence, RI 02906, Rhode Island federal representation and (401) 861-2322 federal funding.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 126 of 164
Robert Rapoza, 150 South Main Street, The witness has knowledge of the impact of Executive Director, Providence, RI 02903, decennial census population counts on Rhode Island Board of (401) 274-4400 statewide redistricting plans for Rhode Island Elections state legislative districts.
Omar Bah, Founder & 150 South Main Street, The witness has knowledge of the impact of Executive Director, Providence, RI 02903, the citizenship question on community Refugee Dream Center (401) 274-4400 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 127 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Rhode Island’s possession, custody, or control that may be used by Plaintiff State
of Rhode Island to support its claims are described as follows. Plaintiff State of Rhode Island
expressly reserves its right to supplement this disclosure:
Document Description Document Location Election Data Services study: Kimball W. Brace, “Some This document is at a central Change in Apportionment Allocations With New 2017 repository administered by the Census Estimates; But Greater Change Likely by 2020”, New York Attorney General’s https://www.electiondataservices.com/wp- Office. content/uploads/2017/12/NR_Appor17c3wTablesMapsC2.pdf (accessed March 23, 2018).
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 128 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this Eighteenth day of July, 2018.
PETER F. KILMARTIN Attorney General of the State of Rhode Island
By: /s Adam D. Roach Adam D. Roach Special Assistant Attorney General RI Office of the Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400 aroach@riag.ri.gov
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 129 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City and County of San Francisco (“San
Francisco”), by its attorney, Dennis J. Herrera, City Attorney of the City and County of San
Francisco, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to San
Francisco. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff San Francisco reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff San Francisco hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff San Francisco makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 130 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff San Francisco’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff San Francisco incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff San Francisco’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff San Francisco reserves the right to use all documents produced by any party or non-party
to this action. With these Initial Disclosures, Plaintiff San Francisco is not identifying documents
protected from disclosure by the attorney-client, work product or other applicable privileges. Nor
does Plaintiff San Francisco waive the right to object to Defendants’ discovery requests on any
basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff San
Francisco may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff San Francisco expressly reserves the right to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 131 of 164
Name Contact Information Subjects of Discoverable Information
Adrienne Pon, The witness may be The witness has knowledge of outreach Executive Director, contacted through the San efforts for the 2010 and 2020 decennial City and County of Francisco City Attorney’s censuses, including San Francisco’s San Francisco’s Office, Deputy City efforts to mitigate the impact of the Immigrant Rights Attorney Mollie Lee at citizenship question on participation in the Commission and the (415) 554-4290 or 2020 Census. Mayor’s Office of mollie.lee@sfcityatty.org. Civic Engagement and Immigrant Affairs Ben Rosenfield, City The witness may be The witness has knowledge of the impact Controller, City and contacted through the San of decennial census population counts on County of San Francisco City Attorney’s local funding and budgets. Francisco Office, Deputy City Attorney Mollie Lee at (415) 554-4290 or mollie.lee@sfcityatty.org.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff San Francisco’s possession, custody, or control that may be used by Plaintiff San
Francisco to support its claims are described as follows. Plaintiff San Francisco expressly reserves
its right to supplement this disclosure:
Document Description Document Location U.S. Department of Transportation Federal Transit This document is at a central Administration Grant Award to the City & County of repository administered by the New San Francisco for FY 2017 49 U.S.C. § 5307 Formula York Attorney General’s Office. Funds (Federal Award Identification No. CA-2017-117- 00)
February 21, 2018 memorandum from Adrienne Pon to This document is at a central Mayor Mark Farrell titled “Ensuring an Accurate, repository administered by the New Complete, Fair and Inclusive 2020 Census Count” and York Attorney General’s Office. attachment
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 132 of 164
Document Description Document Location March 8, 2011 Press Release from Mayor Edwin M. Lee This document is at a central titled “Mayor Lee Announces U.S. Census Bureau repository administered by the New Results for San Francisco Population” York Attorney General’s Office.
August 30, 2010 memorandum from Adrienne Pon to This document is at a central Ditas Katague, Louis Stewart, and Susan McAuliffe repository administered by the New titled “Final Report, California State Census 2010 York Attorney General’s Office. Outreach Grant”
April 14, 2010 memorandum from Adrienne Pon to City This document is at a central Administrator Edwin Lee titled “CENSUS/OCEIA repository administered by the New Budget Needs for FY2010-11” York Attorney General’s Office.
February 26, 2010 Resolution authorizing the Office of This document is at a central Civic Engagement & Immigrant Affairs to accept and repository administered by the New expand a grant in the amount of $32,250 from the State York Attorney General’s Office. of California, Governor’s Office of Planning and Research, to support San Francisco’s complete count outreach and education activities related to the 2010 Census – File Number 100190
January 1, 2010 SF Counts: 2010 Census Strategic Plan This document is at a central – General and Implementation repository administered by the New York Attorney General’s Office. October 2009 Information Packet – Request for This document is at a central Proposals #2009-01 for SF 2010 Census Outreach repository administered by the New York Attorney General’s Office. June 19, 2009 Resolution calling for an accurate, fair This document is at a central and inclusive count of all San Francisco residents in the repository administered by the New 2010 Census – File number 090744 York Attorney General’s Office.
May 27, 2009 Executive Directive 09-02 titled “2010 This document is at a central Census Complete and Inclusive Count” repository administered by the New York Attorney General’s Office. U.S. Census Bureau Report S0501 – Selected This document is at a central Characteristics of the Native and Foreign-Born repository administered by the New Populations; 2012-2016 American Community Survey York Attorney General’s Office. 5-Year Estimates for San Francisco County, California
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 133 of 164
Document Description Document Location Screenshot of report on San Francisco County, This document is at a central California from www.censushardtocountmaps2020.us repository administered by the New displaying census self-response rates and data York Attorney General’s Office.
Profile of the Unauthorized Population: San Francisco This document is at a central County, CA from the Migration Policy Institute repository administered by the New York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED this 17th day of July, 2018.
DENNIS J. HERRERA City Attorney
/s/ Mollie M. Lee MOLLIE M. LEE, California SBN 251404 Deputy City Attorney SAN FRANCISCO CITY ATTORNEY’S OFFICE City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4602 (415) 554-4290 mollie.lee@sfcityatty.org
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 134 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
V. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City of Seattle, by its attorney, Peter S.
Holmes, Seattle City Attorney, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the City
of Seattle. They are made without prejudice to producing during discovery or at trial information,
documents, or data that are (a) subsequently discovered or determined to be relevant for any
purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff City of Seattle reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff City of Seattle hereby expressly reserves all objections to the use for any
purpose of these Initial Disclosures or any of the information and documents referenced herein in
this case. By referring to documents in the Initial Disclosures, Plaintiff City of Seattle makes no
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 135 of 164
representations or concessions regarding the relevancy or appropriateness of any particular
documents or types of documents.
4. Plaintiff City of Seattle's identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not
presently identified. Plaintiff City of Seattle incorporates all individuals identified by all other
parties in Plaintiff's Initial Disclosures and reserves the right to depose, and to rely upon the
testimony of, all such individuals in support of its claims.
5. Plaintiff City of Seattle's identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff City of Seattle reserves the right to use all documents produced by any party or non-party
to this action. With these Initial Disclosures, Plaintiff City of Seattle is not identifying documents
protected from disclosure by the attorney-client, work product or other applicable privileges. Nor
does Plaintiff City of Seattle waive the right to object to Defendants' discovery requests on any
basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff City of
Seattle may use to support Plaintiff's claims as detailed in the First Amended Complaint. Plaintiff
City of Seattle expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information Kelsey Beck, c/o Gary Smith — The witness has knowledge of the Regional Affairs Gary.Smith@seattle.gov impact of decennial census Director, Office of population counts on state/local Intergovernmental funding and budgets.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 136 of 164
Relations (OIR), City of Seattle
Joaquin Uy, c/o Gary Smith — The witness has knowledge of the Communications Gary.Smith@seattle.gov impact of the citizenship question and Outreach on community members' Manager, Office willingness to participate in the of Immigrant and decennial census process. The Refugee Affairs, witness has knowledge of the City of Seattle 'heightened fears surrounding the 2020 decennial census. Witness has knowledge concerning outreach efforts conducted by the Census Bureau. Diana Canzoneri, c/o Gary Smith — Witness has information Demographer, Gary.Smith@seattle.gov regarding the presence of hard-to- Office of Planning count populations in Seattle, and and Community areas particularly vulnerable to Development undercounting. (OPCD), City of Seattle
Sierra Howlett c/o Gary Smith — Witness has information Browne, Federal Gary.Smith@seattle.gov regarding the impact of the Affairs Director, decennial census population Office of count on the state redistricting Intergovernmental process. Relations (OIR), City of Seattle
Amy Nguyen, c/o Gary Smith — The witness has information Community Gary.Smith@seattle.gov regarding Seattle's efforts to Programs mitigate the impact of the Strategic Advisor, citizenship question on non- Department of response rates. Witness has Neighborhoods, knowledge concerning outreach City of Seattle efforts conducted by the Census Bureau.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 137 of 164
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, "Documents") in
Plaintiff City of Seattle's possession, custody, or control that may be used by Plaintiff City of
Seattle to support its claims are described as follows. Plaintiff City of Seattle expressly reserves
its right to supplement this disclosure:
Document Description Document Location Census Committee Proposal.pptx: City Proposed This document is at a central Census Committee Structure repository administered by the New York Attorney General's Office MEMO re 2020 Census CCC.PDF: Briefing This document is at a central Memorandum: 2020 Census Complete Count repository administered by the New Committee Proposal York Attorney General's Office
\Webpages\About Seattle - OPCD seattle_gov.htm: This document is at a central Webpage providing Seattle's Population and Household repository administered by the New Statistics York Attorney General's Office
Census Open House Working Planning Outline DATA This document is at a central COLLAB.docx: Draft Outline and Agenda City of repository administered by the New Seattle Census Open House York Attorney General's Office
Copy of OPCD Mayor's Transition Section II Issue List This document is at a central sa dc.xlsx: Spreadsheet provided by OPCD to support repository administered by the New Mayor's transition York Attorney General's Office
Data Disagg_ A Summary of Best Practice Examples This document is at a central and Challenges from the Pop-Level Subcmte.pptx: A repository administered by the New Summary of Best Practice Examples and Challenges: York Attorney General's Office Analyzing and Reporting Population Demographic Data - Produced by the Data Disaggregation Task Force Population-Level Subcommittee
ACS_12_5YR_Foreign Born incl East African This document is at a central estim.xls: S0502: Selected Characteristics of the repository administered by the New Foreign-Born Population by Period of Entry into the York Attorney General's Office United States
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 138 of 164
GESCNA Committee DDTF Briefing Draft V2.pptx: This document is at a central Demographic Data Disaggregation Task Force: Gender repository administered by the New Equity, Safe Communities, and New Americans York Attorney General's Office Committee - December 14, 2016 Demographic Data Task Force Report-FINAL.pdf: This document is at a central Memorandum: Demographic Data Task Force Report repository administered by the New (Resolution 31613) York Attorney General's Office
Dear Seattle Complete Count Committee This document is at a central members.docx: Subject Line: Census 2010 Open House repository administered by the New for local govt. and non-profits March 1st at Seattle City York Attorney General's Office Hall
Demog Data Task Force resources.txt: Subject: Demog This document is at a central Data Task Force resources repository administered by the New York Attorney General's Office Demographics & Disparities RSJI 2011 Summit This document is at a central Canzoneri Presentation.pptx: Demographics and repository administered by the New Disparities: Updated Data on Seattle - 2011 Race and York Attorney General's Office Social Justice Initiative (RSJI) Summit October 6, 2011 Workshop Presentation
Disaggregated data for race ethnicity and ancestry This document is at a central groups gg edits 3-28 dc 6 10 2018.docx: Accessing repository administered by the New Disaggregated Data for Race/Ethnic Groups - Guidance York Attorney General's Office from the City of Seattle Demographer
GESCNA Committee DDTF Briefing FINAL.pptx: This document is at a central Demographic Data Disaggregation Task Force: Gender repository administered by the New Equity, Safe Communities, and New Americans York Attorney General's Office Committee - December 14, 2016
Presentation to CEP Class 4 30 2012.ppt: New This document is at a central Demographic Data on Seattle and Its Neighborhoods - repository administered by the New Presentation to UW CEP303 Social Structures and York Attorney General's Office Processes
http://www.seattle.gov/opcd/population-and- This document is at a central demographics: Population & Demographics - OPCD repository administered by the New seattle_gov_files York Attorney General's Office
http://vvww.seattle.govicensus2010/committee.htm: This document is at a central Seattle Census 2010 Complete Count Committee_files repository administered by the New York Attorney General's Office
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 139 of 164
WSDC_Agenda_2017.pdf: Washington State Stat This document is at a central Center Annual Meeting - Agenda repository administered by the New York Attorney General's Office Final Demographic Data Task Force memo.docx: This document is at a central Memorandum: Demographic Data Task Force Report repository administered by the New (Resolution 31613) York Attorney General's Office
Using the 2010 Census and ACS to Understand Seattle's This document is at a central Demographics for Kenny Backgroundf.ppt: Using the repository administered by the New ACS and Census to Understand Local Demographics - York Attorney General's Office Presentation to City Council Central Staff
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 140 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures - Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures - Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) - Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
DATED thisl7 th day of ,2018.
PETER S. HOLMES Seattle city / Attorney
By: Peter S. Holmes Seattle City Attorney Seattle City Attorney's Office 701Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 206.684.8200 Peter.hohnes@seattle.gov /-47‘57
7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 141 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATES OF NEW YORK, COLORADO, CONNECTICUT, DELAWARE, ILLINOIS, IOWA, MARYLAND, MINNESOTA, NEW JERSEY, NEW MEXICO, NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT, and WASHINGTON; COMMONWEALTHS OF CIVIL ACTION NO. MASSACHUSETTS, PENNSYLVANIA, and 1:18-cv-2921 (JMF) VIRGINIA; DISTRICT OF COLUMBIA; CITIES OF CENTRAL FALLS, CHICAGO, COLUMBUS, PLAINTIFF UNITED NEW YORK, PHILADELPHIA, PITTSBURGH, STATES PROVIDENCE, and SEATTLE; CITY and CONFERENCE OF COUNTY of SAN FRANCISCO; COUNTIES OF MAYORS INITIAL CAMERON, EL PASO, HIDALGO, and DISCLOSURES MONTEREY; and the UNITED STATES CONFERENCE OF MAYORS,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE; and UNITED STATES OF AMERICA, THOMAS E. PRICE, in his official capacity as Secretary of the United States Department of Health and Human Services, and PATRICK CONWAY, in his official capacity as the Acting Administrator of the Centers for Medicare & MedicaidWILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce,
and
BUREAU OF THE CENSUS, an agency within the United States Department of Commerce; and RON S. JARMIN, in his capacity as performing the non-exclusive functions and duties of the Director of the U.S. Census Bureau,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the United States
Conference of Mayor by its attorney, John Daniel Reaves, General Counsel, of the United
States Conference of Mayors, makes the following Initial Disclosures. Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 142 of 164
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to the United States
Conference of Mayors. They are made without prejudice to producing during discovery
or at trial information, documents, or data that are (a) subsequently discovered or
determined to be relevant for any purpose, or (b) produced as a result of ongoing
investigations, or (c) subsequently determined to have been omitted from these
disclosures.
2. Plaintiff the United States Conference of Mayors reserves the right at any time to revise
and/or supplement these Initial Disclosures.
3. Plaintiff the United States Conference of Mayors hereby expressly reserves all objections
to the use for any purpose of these Initial Disclosures or any of the information and
documents referenced herein in this case. By referring to documents in the Initial
Disclosures, Plaintiff United States Conference of Mayors makes no representations or
concessions regarding the relevancy or appropriateness of any particular documents or
types of documents.
4. Plaintiff the United States Conference of Mayors’ identification of individuals pursuant
to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of
individuals not presently identified. Plaintiff the United States Conference of Mayors
incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures
and reserves the right to depose, and to rely upon the testimony of, all such individuals in
support of its claims.
5. Plaintiff the United States Conference of Mayors’ identification or production of
documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 143 of 164
possession, custody or control. Plaintiff State of New York reserves the right to use all
documents produced by any party or non-party to this action. With these Initial
Disclosures, Plaintiff United States Conference of Mayors is not identifying documents
protected from disclosure by the attorney-client, work product or other applicable
privileges. Nor does Plaintiff United States Conference of Mayors waive the right to object
to Defendants’ discovery requests on any basis, including, but not limited to, relevancy,
over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
Plaintiff United States Conference of Mayors has no individual fact witnesses at
this time but reserves the right to supplement this disclosure.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”)
in Plaintiff United States Conference of Mayors’ possession, custody, or control that may
be used by Plaintiff United States Conference of Mayors to support its claims are described
as follows. Plaintiff United States Conference of Mayors expressly reserves its right to
supplement this disclosure:
Document Description Document Location Declaration of John Daniel Reaves as to the United States The documents are at a Conference of Mayor’s Two Adopted Resolutions Opposing central repository Citizenship Question; Bipartisan Letter to Census Director administered by the State Opposing Use of Citizenship Question and Press Releases. of New York’s Attorney General’s Office. All are matters of public record and found at www.usmayors.org
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 144 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
DATED this 20th day of July, 2018.
/s/ John Daniel Reaves, General Counsel United States Conference of Mayors 1200 New Hampshire Avenue, N.W., Third Floor Washington D.C., 20036 PHONE: (202) 974-5931 EMAIL: jdreavesoffice@gmail.com
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 145 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the Commonwealth of
Virginia, by Mark R. Herring, Attorney General of the Commonwealth of
Virginia, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to
The Commonwealth of Virginia. They are made without prejudice to producing
during discovery or at trial information, documents, or data that are (a)
subsequently discovered or determined to be relevant for any purpose, or (b)
produced as a result of ongoing investigations, or (c) subsequently determined to
have been omitted from these disclosures.
2. Plaintiff Commonwealth of Virginia reserves the right at any time to
revise and/or supplement these Initial Disclosures.
3. Plaintiff Commonwealth of Virginia hereby expressly reserves all
objections to the use for any purpose of these Initial Disclosures or any of the
information and documents referenced herein in this case. By referring to
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 146 of 164
documents in the Initial Disclosures, Plaintiff Commonwealth of Virginia makes
no representations or concessions regarding the relevancy or appropriateness of
any particular documents or types of documents.
4. Plaintiff Commonwealth of Virginia’s identification of individuals
pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from
obtaining discovery of individuals not presently identified. Plaintiff
Commonwealth of Virginia incorporates all individuals identified by all other
parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to
rely upon the testimony of, all such individuals in support of its claims.
5. Plaintiff Commonwealth of Virginia’s identification or production of
documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within
its possession, custody, or control. Plaintiff Commonwealth of Virginia reserves
the right to use all documents produced by any party or non-party to this action.
With these Initial Disclosures, Plaintiff Commonwealth of Virginia does not
identify documents protected from disclosure by the attorney-client, work
product, or other applicable privileges. Nor does Plaintiff Commonwealth of
Virginia waive the right to object to Defendants’ discovery requests on any basis,
including, but not limited to, relevancy, over-breadth, and all applicable
privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that
Plaintiff Commonwealth of Virginia may use to support Plaintiff’s claims as
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 147 of 164
detailed in the First Amended Complaint. Plaintiff Commonwealth of Virginia
expressly reserves the right to supplement this disclosure:
Name Contact Subjects of Discoverable Information Information
Qian Cai, Contact The witness has information regarding the Director, through presence of hard-to-count populations in Demographics counsel: Virginia, and areas particularly vulnerable Research Group, to undercounting. Weldon Cooper 202 N. Ninth Center for Public Street Service, Richmond, VA University of 23219 Virginia (804) 786- 1068
Michael Cassidy, Contact The witness has knowledge of (1) the President and through impact of decennial census population Chief Executive counsel: counts on state/local funding and budgets, Officer of the and (2) the presence of hard-to-count Commonwealth 202 N. Ninth populations in the Virginia, and areas Institute for Fiscal Street particularly vulnerable to undercounting. Analysis Richmond, VA 23219 (804) 786- 1068
Robyn M. de Contact The witness has knowledge of the impact Socio, through of the decennial census population counts Executive counsel: on state/local funding and budgets in Secretary, public safety and law enforcement Commonwealth 202 N. Ninth coverage in localities. of Virginia Street Compensation Richmond, VA Board 23219 (804) 786- 1068
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 148 of 164
Julie Emery, Contact The witness has knowledge (1) of the Executive through impact of the citizenship question on Director, Virginia counsel: community members’ willingness to Civic Engagement participate in the decennial census process Table 202 N. Ninth in Virginia, (2) of the heightened fears Street surrounding the 2020 decennial census in Richmond, VA Virginia, and (3) concerning outreach 23219 efforts conducted by the Census Bureau in (804) 786- Virginia. 1068
Megan Healy, Contact The witness has knowledge of the impact Chief Workforce through of decennial census population counts on Development counsel: state/local funding and budgets in state Advisor, Office of workforce development programs. the Governor 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068
John Lawson, Contact The witness has knowledge of the impact Chief Financial through of decennial census population counts on Officer, Virginia counsel: state/local funding and budgets for the Department of Virginia Department of Transportation. Transportation 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 149 of 164
Jennifer Lee, Contact The witness has knowledge of the impact Director, through of decennial census population counts on Department of counsel: state/local funding and budgets in state Medical medical assistance services programs. Assistance 202 N. Ninth Services Street Richmond, VA 23219 (804) 786- 1068 Greg Lucyk, Contact The witness has information regarding the Board President, through impact of the decennial census population One Virginia counsel: count on the state redistricting process. 2021 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068
Fernando Contact The witness has knowledge of (1) the Mercado- through impact of the citizenship question on Violand, Director counsel: community members’ willingness to of Latino participate in the decennial census process Outreach, Office 202 N. Ninth in Virginia, and (2) the heightened fears of the Governor Street surrounding the 2020 decennial census in Richmond, VA Virginia. 23219 (804) 786- 1068
Tram Nguyen, Contact The witness has knowledge (1) of the Co-Executive through impact of the citizenship question on Director, New counsel: community members’ willingness to Virginia Majority participate in the decennial census process 202 N. Ninth in Virginia, (2) of the heightened fears Street surrounding the 2020 decennial census in Richmond, VA Virginia, and (3) concerning outreach 23219 efforts conducted by the Census Bureau in (804) 786- Virginia. 1068
5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 150 of 164
Sookyung Oh, Contact The witness has knowledge of (1) the D.C. Area through impact of the citizenship question on Director, counsel: community members’ willingness to National Korean participate in the decennial census process American 202 N. Ninth in Virginia, and (2) the heightened fears Service & Street surrounding the 2020 decennial census in Education Richmond, VA Virginia. Consortium 23219 (804) 786- 1068
M. Norman Contact The witness has knowledge of the impact Oliver, State through of decennial census population counts on Commissioner of counsel: state/local funding and budgets in state Health, Virginia health programs. Department of 202 N. Ninth Health Street Richmond, VA 23219 (804) 786- 1068
Atif Qarni, Contact The witness has knowledge of the impact Secretary of through of decennial census population counts on Education, Office counsel: state/local funding and budgets in of the Governor Virginia public education programs. 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068
Simon Sandoval- Contact The witness has knowledge of (1) the Moshenburg, through impact of the citizenship question on Legal Director, counsel: community members’ willingness to Immigrant participate in the decennial census process Advocacy 202 N. Ninth in Virginia, and (2) the heightened fears Program, Legal Street surrounding the 2020 decennial census in Aid Justice Center Richmond, VA Virginia. 23219 (804) 786- 1068
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 151 of 164
Monica Contact The witness has knowledge of (1) the Sarmiento, through impact of the citizenship question on Executive counsel: community members’ willingness to Director, Virginia participate in the decennial census process Coalition for 202 N. Ninth in Virginia, and (2) the heightened fears Immigrant Rights Street surrounding the 2020 decennial census in Richmond, VA Virginia. 23219 (804) 786- 1068
Stephen Duke Contact The witness has knowledge of the impact Storen, State through of decennial census population counts on Commissioner, counsel: state/local funding and budgets in state Virginia social services programs. Department of 202 N. Ninth Social Services Street Richmond, VA 23219 (804) 786- 1068
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information in Plaintiff
Commonwealth of Virginia’s possession, custody, or control that may be used by
Plaintiff Commonwealth of Virginia to support its claims are described as
follows. All such documents are or will be at a central repository administered by
the New York Attorney General’s Office. Plaintiff Commonwealth of Virginia
expressly reserves its right to supplement this disclosure:
Document Description Documents regarding demography of hard to count populations in Virginia, and areas particularly vulnerable to undercounting. Documents regarding the impact of decennial census population counts on state or local funding and budgets in Virginia. Documents regarding the use of federal funds in state health programs and medical services in Virginia.
7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 152 of 164
Documents regarding the use of federal funds in public education programs and services in Virginia. Documents regarding the use of federal funds in state social services programs and services in Virginia. Documents regarding the use of federal funds in transportation programs and services in Virginia. Documents regarding the use of federal funds in workforce development programs and services in Virginia. Documents regarding the redistricting process in Virginia. Documents regarding community members’ willingness to participate in the decennial census process in Virginia. Documents regarding heightened fears surrounding the 2020 decennial census in Virginia. Documents regarding outreach efforts conducted by the Census Bureau in Virginia.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
8 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 153 of 164
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff will provide disclosures of expert testimony as required by Rule
26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D)
of the Federal Rules of Civil Procedure.
DATED this 23rd day of July, 2018.
MARK R. HERRING Attorney General of the Commonwealth of Virginia
/s/ Matthew R. McGuire Matthew R. McGuire Deputy Solicitor General Office of the Attorney General of Virginia 202 North 9th Street Richmond, Virginia 23219 (804) 786-7773 MMcGuire@oag.state.va.us
9 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 154 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff State of Vermont, by its attorney, Thomas J.
Donovan, Jr, Attorney General of the State of Vermont, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to Plaintiff
State of Vermont. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Plaintiff State of Vermont reserves the right at any time to revise and/or supplement
these Initial Disclosures.
3. Plaintiff State of Vermont hereby expressly reserves all objections to the use for
any purpose of these Initial Disclosures or any of the information and documents referenced herein
in this case. By referring to documents in the Initial Disclosures, Plaintiff makes no representations
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 155 of 164
or concessions regarding the relevancy or appropriateness of any particular documents or types of
documents.
4. Plaintiff State of Vermont’s identification of individuals pursuant to Rule
26(a)(1)(A)(i) is not intended to preclude the State from obtaining discovery of individuals not
presently identified. Plaintiff incorporates all individuals identified by all other parties in Plaintiff’s
Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such
individuals in support of its claims.
5. Plaintiff State of Vermont’s identification or production of documents pursuant to
Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.
Plaintiff reserves the right to use all documents produced by any party or non-party to this action.
With these Initial Disclosures Plaintiff is not identifying documents protected from disclosure by
the attorney-client, work product or other applicable privileges. Nor does Plaintiff waive the right
to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy,
over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
Vermont may use to support the Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff expressly reserves the right to supplement this disclosure:
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 156 of 164
Name Contact Information Subjects of Discoverable Information John Adams, Director, Julio A. Thompson The witness has knowledge of Vermont Center for Assistant Attorney General (1) methods for population Geographic Information Office of the Vermont counting; (2) challenges in Attorney General counting historically 109 State Street underrepresented populations; Montpelier, Vermont 05609 and (3) financial impacts of (802) 828-3171 undercounting on Vermont julio.thompson@vermont.gov Medicaid and other federal funding.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
The documents and electronically stored information (collectively, “Documents”) in
Plaintiff State of Vermont’s possession, custody, or control that may be used by the State to support
its claims are described as follows. Plaintiff expressly reserves its right to supplement this
disclosure:
Document Description Document Location Reamer, Counting for Dollars This document is at a central repository administered by 2020: The Role of the Decennial the New York Attorney General’s Office. Census in the Geographic Distribution of Federal Funds (March 18, 2018) Vermont Center for Geographic This document is at a central repository administered by Information, High Cost of a Low the New York Attorney General’s Office Count: Census 2020, Medicaid Payments to States, and Why Every Person Counts
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 157 of 164
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Plaintiff State of Vermont will provide disclosures of expert testimony as required by Rule
26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal
Rules of Civil Procedure.
DATED this 17th day of July 2018.
STATE OF VERMONT
THOMAS J. DONOVAN, JR. ATTORNEY GENERAL
By: /s Julio A. Thompson_________ Benjamin D. Battles Solicitor General Julio A. Thompson Assistant Attorney General Civil Rights Unit Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-3171 julio.thompson@vermont.gov
4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 158 of 164
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. 18-CV-2921 (JMF)
UNITED STATES DEPARTMENT INITIAL DISCLOSURES OF OF COMMERCE, et al., PLAINTIFF STATE OF WASHINGTON Defendants.
Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Washington, by its attorney,
Assistant Attorney General Laura K. Clinton, makes the following Initial Disclosures.
INTRODUCTION
1. These Initial Disclosures are based upon information presently known to
Washington. They are made without prejudice to producing during discovery or at trial
information, documents, or data that are (a) subsequently discovered or determined to be relevant
for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently
determined to have been omitted from these disclosures.
2. Washington reserves the right at any time to revise and/or supplement these Initial
Disclosures.
3. Washington hereby expressly reserves all objections to the use for any purpose of
these Initial Disclosures or any of the information and documents referenced herein in this case.
By referring to documents in the Initial Disclosures, Washington makes no representations or
concessions regarding the relevance or appropriateness of any particular documents or types of
documents.
1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 159 of 164
4. Washington’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not
intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.
Washington incorporates all individuals identified by all other parties in Plaintiff’s Initial
Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals
in support of its claims.
5. Washington’s identification or production of documents pursuant to Rule
26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Washington
reserves the right to use all documents produced by any party or non-party to this action. With
these Initial Disclosures, Washington is not identifying documents protected from disclosure by
the attorney-client, work product or other applicable privileges. Nor does Washington waive the
right to object to Defendants’ discovery requests on any basis, including, but not limited to,
relevancy, over-breadth, and all applicable privileges.
INITIAL DISCLOSURES
I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures:
The below listed persons are likely to have discoverable information that Plaintiff State of
Washington may use to support Plaintiff’s claims as detailed in the First Amended Complaint.
Plaintiff State of Washington expressly reserves the right to supplement this disclosure:
Name Contact Information Subjects of Discoverable Information
Mark Baldwin c/o Laura Clinton The witness has knowledge of Assistant Director of Assistant Attorney General Washington’s planning and Forecasting and Research, 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Office of Financial Seattle WA 98104 Census, potential financial Management impacts to the State of Washington arising from an inaccurate count, and related issues.
2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 160 of 164
Name Contact Information Subjects of Discoverable Information
Yi Zhao, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues.
Erica Gardner, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues.
Mike Mohrman, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues.
Records custodian, Office c/o Laura Clinton The witness(es) have of Financial Management Assistant Attorney General knowledge sufficient to 800 Fifth Avenue, Suite 2000 identify and authenticate Seattle WA 98104 Washington’s records concerning the decennial Census and related issues
Robert Chang c/o Laura Clinton The witness has knowledge Seattle University School Assistant Attorney General regarding the history of the of Law 800 Fifth Avenue, Suite 2000 Census Bureau’s past breaches Seattle WA 98104 of trust where Census information was used to harm individuals and communities, and the reasonable fear or concern that respondents might have when facing the citizenship question now.
3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 161 of 164
Name Contact Information Subjects of Discoverable Information
Laura Pierce c/o Laura Clinton The witness has knowledge of Washington Nonprofits Assistant Attorney General the concerns that 800 Fifth Avenue, Suite 2000 many nonprofit Seattle WA 98104 organizations have about the impact of the citizenship question. Nonprofits working with hard to count populations are concerned that adding the citizenship question instills fear and makes those communities harder to count because they are likely to voluntarily opt out of the Census. The witness has knowledge of the impact an undercount would have on how funds for services are distributed and on the data available for nonprofits to target their services. David Streeter c/o Laura Clinton The witness has knowledge of Washington Nonprofits Assistant Attorney General the concerns that 800 Fifth Avenue, Suite 2000 many nonprofit Seattle WA 98104 organizations have about the impact of the citizenship question. Nonprofits working with hard to count populations are concerned that adding the citizenship question instills fear and makes those communities harder to count because they are likely to voluntarily opt out of the Census. The witness has knowledge of the impact an undercount would have on how funds for services are distributed and on the data available for nonprofits to target their services. Laura Armstrong c/o Laura Clinton The witness has knowledge Executive Director Assistant Attorney General of already existing barriers La Casa Hogar 800 Fifth Avenue, Suite 2000 facing immigrant, low-income, Seattle WA 98104 Limited English Proficient 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 162 of 164
Name Contact Information Subjects of Discoverable Information
residents ("hard-to-count" populations) throughout Washington state’s Yakima Valley in participating in the Census. The witness has further knowledge as to how the citizenship question will worsen those existing barriers for aforementioned community members’ participation in the decennial Census process. The witness has knowledge of immigrant families' heightened fears surrounding government institutions, and understands this as one of the already existing barriers that is being worsened because of the citizenship question. The witness has knowledge regarding community education and awareness efforts regarding the Census in the Yakima Valley region. The witness represents an organization with knowledge and experience working with immigrant families and agricultural workers throughout the region for over two decades.
Linda Moore c/o Laura Clinton The witness has knowledge of CEO|President Assistant Attorney General the impact of the citizenship Yakima Valley 800 Fifth Avenue, Suite 2000 question and the Community Foundation Seattle WA 98104 disproportionate impact of funding and services to low income and people of color and children. The witness has knowledge of the impact of the citizenship questions on “mixed households” where children are citizens and others in the household, including 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 163 of 164
Name Contact Information Subjects of Discoverable Information
their parents are not which also impacts the count of children. The witness has knowledge of the demographics of Yakima County.
II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures:
All materials requested in discovery or that Washington intends to use at trial are described
below. Washington expressly reserves its right to supplement this disclosure:
Document Description Document Location
Documents concerning the 2020 Census and mitigating Office of Financial Management, non-response in the State of Washington. Washington Nonprofits – These documents will be uploaded to the central repository administered by the New York Attorney General’s Office.
III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages:
Not applicable.
IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements:
Not applicable.
V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony:
Washington will provide disclosures of expert testimony as required by Rule 26(a)(2) on the
schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil
Procedure.
6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 164 of 164
DATED this 16th day of July, 2018.
ROBERT W. FERGUSON Attorney General of the State of Washington
/s/ Laura K. Clinton Laura K. Clinton Assistant Attorney General Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 LauraC5@atg.wa.gov (206) 233-3383 Peter Gonick, Deputy Solicitor General Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 peterg@atg.wa.gov Tel. (360) 753-6245
7 | 2018-11-01 | [
"Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 1 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiffs Hidalgo and Cameron Texas Counties by its attorney, Special Counsel Rolando L. Rios, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Plaintiffs Hidalgo and Cameron Counties. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiffs Hidalgo and Cameron Counties reserves the right at any time to revise and/or supplement these Initial Disclosures. 3.",
"Plaintiffs Hidalgo and Cameron Counties hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiffs 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 2 of 164 Hidalgo and Cameron Counties make no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiffs Hidalgo and Cameron Counties’ identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiffs from obtaining discovery of individuals not presently identified. Plaintiffs Hidalgo and Cameron Counties incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiffs Hidalgo and Cameron Counties’ identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiffs Hidalgo and Cameron Counties reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiffs Hidalgo and Cameron Counties are not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor do Plaintiffs Hidalgo and Cameron Counties waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiffs Hidalgo and Cameron Counties may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiffs Hidalgo and Cameron Counties expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 3 of 164 Name Contact Information Subjects of Discoverable Information Maria Arcelia Duran, Attorney Rolando L. Rios Maria Arcela Duran has knowledge of the CPA, Hidalgo County rrios@rolandorioslaw.com impact of decennial census population Auditor 210-413-7347 counts on local funding and budgets. Martha Galarza, CPA, Attorney Rolando L. Rios Martha Galarza has knowledge of the Cameron County rrios@rolandorioslaw.com impact of decennial census population Auditors Office) 210-413-7347 counts on local funding and budgets.",
"Ramon Garcia, Attorney Rolando L. Rios The witness has knowledge of the impact of Hidalgo County Judge rrios@rolandorioslaw.com the citizenship question on community 210-413-7347 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census. Eddie Trevino Jr., Attorney Rolando L. Rios The witness has knowledge of the impact of Cameron County rrios@rolandorioslaw.com the citizenship question on community Judge 210-413-7347 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiffs Hidalgo and Cameron Counties have no documents to disclose at this time but expressly reserves its right to supplement this disclosure: III.",
"Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V.Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil DATED this 20th day of July, 2018. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 4 of 164 Respectfully Submitted, Rolando L. Rios ROLANDO L. RIOS Texas State Bar # 16935900 Special Counsel 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Telephone: (210) 222-2102 Facsimile: (210) 222-2898 E-Mail: rrios@rolandorioslaw.com Attorney for Plaintiffs HIDALGO AND CAMERON COUNTIES OF TEXAS 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 5 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff, the City of Central Falls (the “State of Rhode Island”), by its attorney, Matthew T. Jerzyk, Bar Number 7945 of the State of Rhode Island, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Central Falls. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Central Falls reserves the right at any time to revise and/or supplement these Initial Disclosures.",
"3. Plaintiff City of Central Falls hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Central Falls 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 6 of 164 makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Central Falls’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Central Falls incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5.",
"Plaintiff City of Central Falls’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Central Falls reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of Central Falls is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Central Falls waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Central Falls may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff City of Central Falls expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Mayor James Contact through Counsel: The witness has knowledge of how the Diossa, City of City Solicitor addition of the citizenship question has Central Falls City of Central Falls 580 spread fear and confusion among city Broad Street Central Falls, residents who have been asked to 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 7 of 164 RI 02863 participate in the Census “Test Run” and MJerzyk@CentralFallsRI.us whether ICE would be notified. Rachel Flum, Contact through Counsel: The witness has knowledge of the impact of Economic Progress City Solicitor decennial census population counts on local Institute City of Central Falls 580 funding and budgets.",
"Broad Street Central Falls, RI 02863 MJerzyk@CentralFallsRI.us Mario Bueno, Contact through Counsel: The witness has knowledge of the impact of Executive Director, City Solicitor the citizenship question on community Progreso Latino City of Central Falls 580 members’ willingness to participate in the Broad Street Central Falls, decennial census process. The witness has RI 02863 knowledge of the heightened fears surrounding the 2020 decennial census. MJerzyk@CentralFallsRI.us Witness has knowledge concerning outreach efforts conducted by the Census Bureau. Gabriela Contact through Counsel: Witness has information regarding the Domenzain City Solicitor presence of hard-to-count populations in City of Central Falls 580 Central Falls and areas particularly vulnerable Broad Street Central Falls, to undercounting. RI 02863 MJerzyk@CentralFallsRI.us Kim Brace Contact through Counsel: Witness has information regarding the impact City Solicitor of the decennial census population count on City of Central Falls 580 the state redistricting process. Broad Street Central Falls, RI 02863 MJerzyk@CentralFallsRI.us John Marion, Contact through Counsel: The witness has information regarding Common Cause of City Solicitor Central Falls’s efforts to mitigate the impact Rhode Island City of Central Falls 580 of the citizenship question on non-response Broad Street Central Falls, rates.",
"Witness has knowledge concerning RI 02863 outreach efforts conducted by the Census Bureau. MJerzyk@CentralFallsRI.us 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 8 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff City of Central Falls’s possession, custody, or control that may be used by Plaintiff City of Central Falls to support its claims are described as follows. Plaintiff City of Central Falls expressly reserves its right to supplement this disclosure: Document Description Document Location “Census on Trial,” OpEd by Mayor James Diossa This document will be uploaded to Providence the central repository administered by the New York Attorney General’s Office. Statement of Former Census Directors on Adding a This document will be uploaded to New Question to the 2010 Census (Oct. 16, 2009) the central repository administered by the New York Attorney General’s Office. Press Conference Memo on Citizenship Question This document will be uploaded to the central repository administered by the New York Attorney General’s Office.",
"U.S. Census Bureau, How a Question Becomes a Part of This document will be uploaded to the American Communities Survey (2017) the central repository administered by the New York Attorney General’s Office. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 9 of 164 Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure.",
"DATED this 17th day of July, 2018. The City of Central Falls by and through its City Solicitor Matthew T. Jerzyk /s/ Matthew T. Jerzyk NAME Matthew T. Jerzyk, Esq. (R.I. Bar No. 7945) City Solicitor City of Central Falls 580 Broad St. Central Falls, RI 02863 401-556-7412 MJerzyk@CentralFallsRI.us 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 10 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK,et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE,et al., Defendants. Pursuant to Fed R Civ. P. 26(a)(1), Plaintiff City of Chicago (the \"City of Chicago\"), by its attorney, Edward N. Siskel, the Corporation Counsel of the City of Chicago, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Chicago.",
"They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Chicago reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff City of Chicago hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Chicago 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 11 of 164 makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Chicago's identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Chicago incorporates all individuals identified by all other parties in Plaintiff's Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiff City of Chicago's identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Chicago reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of Chicago is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Chicago waive the right to object to Defendants' discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Chicago may use to support Plaintiffs' claims as detailed in the First Amended Complaint. Plaintiff City of Chicago expressly reserves the right to supplement this disclosure: Name Contact Subiects of Discoverable Information Information Evelyn Rodriguez, Office Contact through Evelyn Rodriguez is an advisor for of the Mayor ofthe City Counsel for the neighborhood development and community of Chicago City of Chicago engagement and serves as a conduit to all communities and mana es artnershi s with 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 12 of 164 external stakeholders including those from the civic, faith-based, cultural and business communities. Appointed by the Mayor of Chicago, she serves as the City's designee on the Illinois Complete Count Commission. The Commission is developing and will recommend a 2020 Census outreach strategy and will be chaired by the IL Secretary of State. The witness has knowledge of Chicago's involvement and efforts in census outreach, which seeks to combat the undercount projected for the 2020 Census.",
"Bryan Esenberg, Deputy Contact through The witness has knowledge on issues related to Commissioner ofthe Counsel for the how the City of Chicago's grant funding and Multi-Family Finance and City of Chicago tax credits are affected by the decennial Census Housing Preservation count. Division of the Chicago Department of Planning and Development Dr. Julie Morita, Contact through The witness has knowledge about how Commissioner ofthe Counsel for the inaccurate figures from the 2020 Census will Chicago Department of City of Chicago harm the ability of the Chicago Department of Public Health Public Health to serve local communities and to identify and treat communities with the greatest need, particularly in the area of disease prevention and control. The witness also has knowledge about how the City of Chicago's grant funding, particularly the Immunization Program, will be affected by the decennial Census count. Jackie Tiema, Director of Contact through This witness has knowledge about the Chicago Grants Management for Counsel for the Department of Family &Support Services the Chicago Department City of Chicago (\"DFSS\")'s federal grant application process. of Family &Support Services John Young, Political Contact through This witness has knowledge about local Director for Common Counsel for the funding and budgets.",
"Cause Illinois City of Chicago Celina Villanueva, NADP Contact through This witness has knowledge about impact of Youth Engagement Counsel for the the citizenship question on community & Manager for the Illinois City of Chicago members' willingness to participate in the Coalition for Immigrant decennial Census. Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 13 of 164 and Refugee Rights Lawrence Benito, CEO Contact through This witness has knowledge about impact of & Executive Director ofthe Counsel for the the citizenship question on community Illinois Coalition for City of Chicago members' willingness to participate in the Immigrant and Refugee decennial Census. Rights Selma D'Souza, Contact through This witness has knowledge about impact of Executive Director ofthe Counsel for the the citizenship question on community Indo American Center City of Chicago members' willingness to participate in the decennial Census and local funding and budgets. Judith Gethner, Executive Contact through This witness has knowledge about local Director of Illinois Counsel for the funding and budgets. Partners for Human City of Chicago Services Jeff Raines, Contact through This witness has knowledge regarding the Communications and Counsel for the impact ofthe decennial Census population Engagement Director for City of Chicago count on the state redistricting process.",
"Change Illinois Jesus Garcia, Cook Contact through This witness has knowledge about the impact County Commissioner Counsel for the of the citizenship question, local funding and City of Chicago budgets, as well as the state redistricting process. Anita Banerji, Director of Contact through This witness has been leading, facilitating and the Democracy Initiative Counsel for the making collaborative efforts with Illinois for Forefront City of Chicago advocates and grant-makers across the state for a fair and accurate Census in 2020, and has knowledge about the same. Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 14 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiff City of Chicago expressly reserves its right to supplement these initial disclosures by later identifying documents and electronically stored information in Plaintiff City of Chicago's possession, custody, or control that may be used by Plaintiff City of Chicago to support its claims. III.",
"Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures —Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures —Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) —Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 18th day of July, 2018. Edward N. Siskel CORPORATION COUNSEL CITY OF CHICAGO /s/ }1,~ ~J.t~ Christie L. Starzec Assistant Corporation Counsel City of Chicago Department of Law 30 North LaSalle Street, Suite 1230 Chicago, Illinois 60602 (312)744-7864 Christie.Starzec@cityofchicago.org 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 15 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 16 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 17 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 18 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 19 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 20 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 21 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 22 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 23 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of Columbus, by its attorney, Zachary M. Klein of the City Attorney’s Office of Columbus, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Columbus. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Columbus reserves the right at any time to revise and/or supplement these Initial Disclosures.",
"3. Plaintiff City of Columbus hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 24 of 164 Columbus makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Columbus’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Columbus incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5.",
"Plaintiff City of Columbus’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Columbus reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of Columbus is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Columbus waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Columbus may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff City of Columbus expressly reserves the right to supplement this disclosure: Name Subjects of Discoverable Information Anita Clark, fiscal manager in This witness has knowledge of how census driven funds are the Columbus Department of distributed to various City organizations and how such Health decisions are made.",
"Witness also has information about how much money was expended by each City organization. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 25 of 164 Carolyn Thurman, Grants This witness has information regarding the grant formulas management coordinator, that are used to calculate how much funding the City of department of finance and Columbus will receive based on census data. management for the City of Columbus Inna Kinney, CEO of This witness has knowledge of the impact census driven Economic Community funds have on the City of Columbus.",
"Witness can also speak Development Institute on the hardship the city will face if such funds are not representative of our population. Mohamud Jama, Director of This witness also has information regarding how an the New American Political additional citizenship question will affect Somali turnout in Action Committee the census and how a decrease in census-driven funds will affect this community. Ramona Reyes, Director of This witness has information regarding how adding a Our Lady of Guadalope Center citizenship question to the census will affect Latino turnout. Witness also has information regarding how a decrease in census-driven funds will affect the Latino population in Columbus. Roger Cloern, fiscal division at This witness has information regarding the grant formulas the Columbus Department of that are used to calculate how much funding the City of Health Columbus will receive based on census data. Steve Fireman, GC of This witness has knowledge of the impact census driven Economic Community funds have on the City of Columbus. Witness can also speak Development Institute on the hardship the city will face if such funds are not representative of our population. Each of the above listed witnesses can be contacted through counsel at the Columbus City Attorney’s office. Contact information for counsel is: Alexandra Pickerill or Richard Coglianese 77 North Front Street Columbus, Ohio 43215 (614)645-6945 (phone) (614)645-0818 (phone) (614)645-6949 (fax) anpickerill@columbus.gov rncoglianese@columbus.gov 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 26 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff City of Columbus’s possession, custody, or control that may be used by Plaintiff City of Columbus to support its claims are described as follows.",
"Plaintiff City of Columbus expressly reserves its right to supplement this disclosure: Document Description Document Location 2015 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2015. 2016 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2016. 2017 Comprehensive Annual Financial Report This document is at a central repository administered by the New York Attorney General’s Office Details how much money was received in federal funds and where those funds were allocated in fiscal year 2017. Assistance Data Catalog of Federal Domestic This document is at a central Assistance repository administered by the New York Attorney General’s Office 2017 Schedule of Expenditure and Federal Awards This document is at a central repository administered by the New York Attorney General’s Office 2017 Schedule of Expenditure and Federal Awards with This document is at a central hand-written department allocations. repository administered by the New York Attorney General’s Office Details which departments within the City are given 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 27 of 164 federal funds based on the census data.",
"Census Driven Federal Funds_Columbus This document is at a central repository administered by the New York Attorney General’s Office This excel spreadsheet shows where census-driven funds have been allocated in the City of Columbus. 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 28 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 12th day of July, 2018. Zach Klein City Attorney of the City of Ohio /s/ Zach Klein Zach Klein Columbus City Attorney 77 North Front Street Columbus Ohio, 43215 (614)645-7385 zmklein@columbus.gov 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 29 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Connecticut (\"Connecticut”), by its attorney, Mark F. Kohler, Assistant Attorney General, of the Connecticut Office of the Attorney General, makes the following Initial Disclosures.",
"INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Plaintiff Connecticut. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff Connecticut reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff Connecticut hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff Connecticut makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 30 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents.",
"4. Plaintiff Connecticut’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff Connecticut incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff Connecticut’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff Connecticut reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff Connecticut is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff Connecticut waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 31 of 164 INITIAL DISCLOSURES I. Fed R. Civ.",
"P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Connecticut may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of Connecticut expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Paul Potamianos, c/o Mark F. Kohler The witness has knowledge of Executive Budget Director, Assistant Attorney General the impact of decennial census State of Connecticut Office Connecticut Office of the population counts on state/local of Policy & Management Attorney General funding and budgets. 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 860-808-5020 Mark.Kohler@ct.gov II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiff Connecticut does not have any documents or electronically stored information to disclose at this time. Plaintiff Connecticut expressly reserves its right to supplement this disclosure. III. Fed R. Civ.",
"P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 32 of 164 Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. GEORGE JEPSEN Attorney General of the State of Connecticut /s/ Mark F. Kohler Mark F. Kohler Assistant Attorney General Connecticut Office of the Attorney General 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 860-808-5020 Mark.Kohler@ct.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 33 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. PLAINTIFF DISTRICT OF COLUMBIA’S INITIAL DISCLOSURES Pursuant to Fed R. Civ.",
"P. 26(a)(1), Plaintiff the District of Columbia, by its attorneys, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the District of Columbia. They are made without prejudice to producing information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures during discovery or at trial.",
"2. Plaintiff District of Columbia reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff District of Columbia hereby expressly reserves all objections to the use of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff District of Columbia makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 34 of 164 representations or concessions regarding the relevancy or appropriateness of any particular document or types of documents. 4. Plaintiff District of Columbia’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiffs from obtaining discovery of individuals not presently identified.",
"Plaintiff District of Columbia incorporates all individuals identified by all other parties in these Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff District of Columbia’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff District of Columbia reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff District of Columbia is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff District of Columbia waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff District of Columbia may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff District of Columbia expressly reserves the right to supplement this disclosure: Name Contact Subjects of Discoverable Information Information Fitzroy Lee, PhD Office of the Witness has knowledge of the impact of Deputy CFO and Chief Attorney General decennial census population counts on Economist for the District of District of Columbia funding and budgets.",
"Columbia, 441 4th 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 35 of 164 Street, N.W., Suite 630 South, Washington, DC 20001 Sam Zimbabwe Office of the Witness has knowledge of the impact of Chief Project Delivery Attorney General decennial census population counts on Officer for the District of highway planning and construction and Office of the Director Columbia, 441 4th other funding for the District. District Department of Street, N.W., Suite Transportation 630 South, Washington, DC 20001 Elisabeth Morse, Division Office of the Witness has knowledge of the impact of of Systems and Supports Attorney General decennial census population counts on (K-12) for the District of education and other funding for the D.C. Office of the State Columbia, 441 4th District. Superintendent of Street, N.W., Suite Education 630 South, Washington, DC 20001 Elizabeth Groginsky, Office of the Witness has knowledge of the impact of Division of Early Learning Attorney General decennial census population counts on D.C. Office of the State for the District of education and other funding for the Superintendent of Columbia, 441 4th District. Education Street, N.W., Suite 630 South, Washington, DC 20001 Gretchen Brumley, Office of the Witness has knowledge of the impact of Division of Student Attorney General decennial census population counts on Transportation for the District of education and other funding for the D.C. Office of the State Columbia, 441 4th District. Superintendent of Street, N.W., Suite Education 630 South, Washington, DC 20001 Corporate designee(s) of Office of the Witness has knowledge of the impact of the D.C. Department of Attorney General decennial census population counts on Human Services for the District of Supplemental Nutrition Assistance Columbia, 441 4th Program, Foster Care, WIC, and other Street, N.W., Suite funding for the District.",
"630 South, 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 36 of 164 Washington, DC 20001 Joy Phillips, PhD Office of the Witness has information regarding the Associate Director, D.C. Attorney General District of Columbia’s use of census State Data Center for the District of information, its previous and ongoing D.C. Office of Planning Columbia, 441 4th efforts to improve its residents’ responses Street, N.W., Suite to the census and the District’s Complete 630 South, Count Committee, the presence of hard- Washington, DC to-count populations in the District of 20001 Columbia, and areas particularly vulnerable to undercounting.",
"Corporate designee(s) of Office of the The witness has information regarding the the Executive Office of the Attorney General District of Columbia’s Complete Count Mayor for the District of Committee and its efforts to mitigate the Columbia, 441 4th impact of the citizenship question on non- Street, N.W., Suite response rates. Witness has knowledge 630 South, concerning outreach efforts conducted by Washington, DC the Census Bureau. 20001 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff District of Columbia’s possession, custody, or control that may be used to support its claims are described as follows. Plaintiff District of Columbia expressly reserves its right to supplement this disclosure: Document Description Document Location Demographic reports concerning hard-to-count These documents are being populations prepared by the D.C. Office of Planning, and when in final form they will be provided to the New York Attorney General’s Office to be kept in a Central Repository. Proposals and plans to mitigate non-response.",
"These documents are being prepared by the D.C. Complete Count Committee, and when in final form they will be provided to the New York Attorney General’s 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 37 of 164 Office to be kept in a Central Repository. Budget analyses of the impact of undercount. These documents are being prepared by the D.C. Office of the Chief Financial Officer, and when in final form they will be provided to the New York Attorney General’s Office to be kept in a Central Repository. D.C. Code § 1-1101.01 This document is at a central repository administered by the New York Attorney General’s Office. Report on Bill 19-219 the “Ward Redistricting This document is at a central Amendment Act of 2011” repository administered by the New York Attorney General’s Office.",
"THE 2010 CENSUS: HOW COMPLETE COUNT This document is at a central COMMITTEES, LOCAL GOVERNMENTS, repository administered by the New PHILANTHROPIC ORGANIZATIONS, NOT-FOR- York Attorney General’s Office. PROFITS AND THE BUSINESS COMMUNITY CAN CONTRIBUTE TO AN ACCURATE CENSUS, HEARING BEFORE THE SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES OF THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES (Dec. 2, 2009) Subcommittee Report on Bill 14-137, the “Ward This document is at a central Redistricting Amendment Act of 2001” repository administered by the New York Attorney General’s Office. D.C. Code § 1-1041.02 This document is at a central repository administered by the New York Attorney General’s Office. D.C. Code § 1-309.03 This document is at a central repository administered by the New York Attorney General’s Office.",
"D.C. Code § 2-1010 This document is at a central repository administered by the New York Attorney General’s Office. 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 38 of 164 D.C. Code § 6-1502 This document is at a central repository administered by the New York Attorney General’s Office. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff District of Columbia will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. KARL A. RACINE Attorney General for the District of Columbia ROBYN R. BENDER* Deputy Attorney General, Public Advocacy Division By: /s/ Valerie M. Nannery Valerie M. Nannery, Assistant Attorney General (admitted pro hac vice) Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 valerie.nannery@dc.gov Tel.",
"(202) 442-9596 Fax (202) 730-1465 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 39 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, V. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a) (1), Plaintiff the People of the State of Delaware, by its attorney, David J. Lyons, Deputy Attorney General, (DE BAR ID 2341) of the State of Delaware, Department of Justice, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Delaware.",
"They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff Delaware reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff Delaware hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case.",
"By referring to documents in the Initial Disclosures, Plaintiff Delaware makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 40 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff Delaware’s identification of individuals pursuant to Rule 26(a) (1) (A) (i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff Delaware incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff Delaware’s identification or production of documents pursuant to Rule 26(a) (1) (A) (ii) is limited to those documents within its possession, custody or control. Plaintiff Delaware reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff Delaware is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges.",
"Nor does Plaintiff Delaware waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Delaware may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of Delaware expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented research Delaware Office of David.lyons@state.de.us concerning estimates of the number of Management and (302) 577-8413 undocumented immigrants in Delaware as of 2014, Budget the prevalence of hard to count populations in Delaware’s three counties: New Castle, Kent, and 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 41 of 164 Sussex, as well as the number of people living in hard to count communities. Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented research Delaware Office of David.lyons@state.de.us concerning per capita benefits of $2214 in federal Management and (302) 577-8413 funding based on 16 large federal assistance Budget programs that distribute funds based on Decennial Census derived statistics.",
"Steven E. David J. Lyons, The witness has knowledge of documents and/or Yeatman, David.lyons@state.de.us information that address the following programs in Deputy Secretary (302) 577-8413 Delaware, which use Census information for the Department of formula for funds entitlement: Services for 1. Title 1 part D, Neglected and Delinquent Children, Youth Children This program provides formula grants to and Their Families SEAs for supplementary education services to help provide education continuity for children and youths in state-run institutions for juveniles and in adult correctional institutions 2.Individuals with Disabilities Education Act (IDEA) Part B, Section 611 (Supports ages 3 – 21) 3.IDEA Part B, Section 619 (Supports ages 3-5) 4.Stephanie Tubbs Jones Child Welfare Services: Title IV-B, Subpart 1 of the Social Security Act - Under the Stephanie Tubbs Jones Child Welfare Services (CWS) program, states may provide a broad range of services designed to support, preserve, and/or reunite children and their families. States are required to use funding received under the Promoting Safe and Stable Families Program (PSSF) Stephen G. Bayer, David J. Lyons, The witness has knowledge of documented census Delaware Office of David.lyons@state.de.us statistics concerning Delaware’s percentage of Management and (302) 577-8413 initial self-response, as well as the costly follow Budget required to obtain an accurate count. Stephen G. Bayer, David J. Lyons, The witness has knowledge of Delaware statutes Delaware Office of David.lyons@state.de.us concerning the necessity of accurate census data in Management and (302) 577-8413 state voter redistricting.",
"At the federal level, Budget Delaware’s current population only allows for one representative to the U.S. House of Representatives. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 42 of 164 Stephen G. Bayer, David J. Lyons, The witness has knowledge of Delaware’s Delaware Office of David.lyons@state.de.us expending additional resources to mitigate any Management and (302) 577-8413 harm caused by an inaccurate census count to the Budget extent Delaware will be convening a “State Complete Count Commission” pursuant to a pending Executive Order of Delaware Governor John Carney. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Delaware’s possession, custody, or control that may be used by Plaintiff State of Delaware to support its claims are described as follows. Plaintiff State of Delaware expressly reserves its right to supplement this disclosure: Document Description Documents Location Prevalence of Hard to Count Populations.",
"http://www.censushardtocountmaps2020.us/ - Immigrants in Delaware. The American U.S. Census Bureau American Community Immigration Council. 331 G St. NW, Suite 200, Survey , 2012-2016 Washington, D.C. 20005 ( a nonpartisan nonprofit organization ) ; 2010 Census Coverage These documents are located at a central Measurement; repository administered by the New York Attorney General’s Office. Losses in Federal Funding Due To An Inaccurate This document is located at a central repository Census Count. Source: “Counting for Dollars”. administered by the New York Attorney The George Washington Institute for Public General’s Office. Policy, The George Washington University, Washington, DC Populations at Risk of Being Undercounted - http://www.censushardtocountmaps2020.us/ U.S. Census Tract examples based on latest These documents are located at a central Census estimates -2012-2016 - depicting Census repository administered by the New York Self Response and Hardest to Count (HTC) 2020 Attorney General’s Office. Tracts in the Nation. The Leadership Conference Education Fund citing: U.S. Census Bureau, 2011-2015 American Community Survey Estimates; Funders’ Committee for Civic Participation; “Census 2020, “What’s At Stake for Delaware Funders”, Keely Monroe, Funders’ Committee for Civic Participation; 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 43 of 164 Necessity of Accurate Census Data in This document is located at a central repository Redistricting.",
"Source: Delaware Code, Title 29, administered by the New York Attorney Chapter 8 General’s Office. Expending Additional Resources to Mitigate Upon receipt, this document will be placed at a Harm. Source: Pending Issuance and Receipt central repository located at and administered by of Order: State Complete Count Commission the New York Attorney General’s Office. via an Executive Order of Delaware Governor John Carney. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a) (2) on the schedule directed by the Court and as required by Rule 26(a) (2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018.",
"DAVID J. LYONS, Deputy Attorney General of the State of Delaware /s/ David J. Lyons David J. Lyons Deputy Attorney General Delaware Department of Justice Wilmington, DE 19801 303-577-8413 David.Lyons@state.de.us 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 44 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the County of El Paso, Texas, by its attorney, Ian R. Kaplan, Assistant County Attorney of the El Paso County Attorney’s Office, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Ian R. Kaplan. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2.",
"Plaintiff, El Paso County Texas, reserves the right at any time to revise and/or supplement these Initial Disclosures. 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 45 of 164 3. Plaintiff, El Paso County Texas, hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff El Paso County Texas, makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff El Paso County Texas, identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.",
"Plaintiff El Paso County Texas, incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff El Paso County Texas, identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff El Paso County Texas, reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff El Paso County Texas, is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff, El Paso County Texas, waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 46 of 164 INITIAL DISCLOSURES I. Fed R. Civ.",
"P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff El Paso County Texas, may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff El Paso County Texas, expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information El Paso County Judge El Paso County Attorney’s Office The witness has knowledge of Ruben J. Vogt/El Paso, 500 E. San Antonio, Ste. 503 the workings of El Paso Texas El Paso, Texas 79901 County Government. Telephone: 915.546.2050 County Chief El Paso County Attorney’s Office The witness has knowledge of Administrator Betsy C. 500 E. San Antonio, Ste.",
"503 the workings of El Paso Keller/El Paso, Texas El Paso, Texas 79901 County Government and Telephone: 915.546.2050 Budget. County Budget and El Paso County Attorney’s Office The witness has knowledge of Fiscal Policy 500 E. San Antonio, Ste. 503 the workings of County Department Wallace El Paso, Texas 79901 Budget. Hardgrove/El Paso, Telephone: 915.546.2050 Texas Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiff El Paso County has nothing to disclose at this time but expressly reserves its right to supplement should any documents be found. II. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. III. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. IV.",
"Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 47 of 164 Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this the 19th day of July, 2018. JO ANN BERNAL El Paso County Attorney 500 E. San Antonio, Ste. 503 El Paso, Texas 79901 /s/ Ian R. Kaplan IAN R. KAPLAN Assistant County Attorney El Paso County Attorney’s Office 500 E. San Antonio, Ste. 503 El Paso, Texas 79901 Telephone: 915.546.2050 Facsimile: 915.546.2133 Ian.Kaplan@epcounty.com New York Bar No. 3976529 Texas Bar No. 24043747 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 48 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of Illinois (the “State of Illinois”), by its attorney, Lisa Madigan, Attorney General of the State of Illinois, makes the following Initial Disclosures.",
"INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Illinois. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of Illinois reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of Illinois hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Illinois makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 49 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of Illinois’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.",
"Plaintiff State of Illinois incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Illinois’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody, or control. Plaintiff State of Illinois reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff State of Illinois is not identifying documents protected from disclosure by the attorney-client, work product, or other applicable privileges. Nor does Plaintiff State of Illinois waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) Disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Illinois may use to support Plaintiff’s claims as detailed in the First Amended Complaint.",
"Plaintiff State of Illinois expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 50 of 164 Name Contact Information Subjects of Discoverable Information Erin Aleman, Office of the Illinois The witness has knowledge of the impact of Director of Planning Attorney General decennial census population counts on state and Programming, Matthew J. Martin transportation funding and budgets. Illinois Department of mmartin@atg.state.il.us Transportation (312) 814-8735 Annie Brooks, Office of the Illinois The witness has knowledge of the impact of Federal Liaison and Attorney General decennial census population counts on state Director of Title Matthew J. Martin education funding and budgets.",
"Grants, Illinois State mmartin@atg.state.il.us Board of Education (312) 814-8735 Celina Villanueva, Office of the Illinois The witness has knowledge of the impact of NADP and Youth Attorney General the citizenship question on community Engagement Manager, Matthew J. Martin members’ willingness to participate in the Illinois Coalition for mmartin@atg.state.il.us decennial census process. The witness has Immigrant and Refugee (312) 814-8735 knowledge of the heightened fears Rights surrounding the 2020 decennial census. II. Fed R. Civ. P. 26(a)(1)(A)(ii) Disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Illinois’s possession, custody, or control that may be used by Plaintiff State of Illinois to support its claims are described as follows. Plaintiff State of Illinois expressly reserves its right to supplement this disclosure: Document Description Document Location U.S. Unauthorized Immigration Population Estimates, PEW This document is at a central repository RESEARCH CTR. (Nov. 3, 2016) administered by the New York Attorney General’s Office. Census 2020: Hard-to-Count Communities in Illinois, This document is at a central repository CUNY MAPPING SERVICE administered by the New York Attorney General’s Office.",
"Quick Facts: Illinois 2018, U.S. CENSUS BUREAU This document is at a central repository administered by the New York Attorney General’s Office. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 51 of 164 Grants to Local Educational Agencies, U.S. DEP’T OF This document is at a central repository EDUC. (July 3, 2018) administered by the New York Attorney General’s Office. GW INSTITUTE OF PUBLIC POLICY, COUNTING FOR This document is at a central repository DOLLARS 2020: THE ROLE OF THE DECENNIAL CENSUS IN administered by the New York Attorney THE GEOGRAPHIC DISTRIBUTION OF FEDERAL FUNDS General’s Office. (2018) GW INSTITUTE OF PUBLIC POLICY: COUNTING FOR This document is at a central repository DOLLARS 2020 #16: CHILD CARE AND DEVELOPMENT administered by the New York Attorney FUND—ENTITLEMENT (2017) General’s Office. Immigrants in Illinois, AM. IMMIGRATION COUNCIL (Oct. 4, This document is at a central repository 2017) administered by the New York Attorney General’s Office. Notice: Revised Apportionment of Federal-Aid Highway This document is at a central repository Program Funds for Fiscal Year (FY) 2017, FED.",
"HIGHWAY administered by the New York Attorney ADMIN. (Dec. 21, 2016) General’s Office. Table 3: FY 2017 Section 5307 and 5340 Urbanized Area This document is at a central repository Formula Appropriations (Full Year), FED. TRANSIT ADMIN. administered by the New York Attorney General’s Office. 20 Ill. Comp. Stat. 5100/15 This document is at a central repository administered by the New York Attorney General’s Office.",
"III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 52 of 164 DATED this 16th day of July, 2018. LISA MADIGAN Attorney General of the State of Illinois /s/ Matthew J. Martin Matthew J. Martin Public Interest Counsel Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-8735 mmartin@atg.state.il.us 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 53 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK,et al., Plaintiffs, V. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE,et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the Iowa(the \"State of Iowa\"), by its attorney, Nathan Blake, Deputy Attorney General of the State of Iowa, makes the following Initial Disclosures- INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Iowa. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2.",
"Plaintiff State of Iowa reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of Iowa hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Iowa makes no Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 54 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4.",
"Plaintiff State of Iowa's identification of individuals pursuant to Rule 26(a)(l)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of Iowa incorporates all individuals identified by all other parties in Plaintiffs Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Iowa's identification or production of documents pursuant to Rule 26(a)(l)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff State ofIowa reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff State of Iowa is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff State of Iowa waive the right to object to Defendants' discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I.",
"Fed R,Civ. P. 26(a)(l)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Iowa may use to support Plaintiffs claims as detailed in the First Amended Complaint. Plaintiff State ofIowa expressly reserves the right to supplement this disclosure: Name Contact Information Subiects ofDiscoverable Information Joel Lunde Nathan Blake The witness has knowledge of the impact of Iowa Department of Office ofthe Iowa decennial census population counts on state Management Attomey General funding and budgets. 1305 E. Walnut St. Des Moines,lA 50314 515-281-4325 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 55 of 164 nathan.blake@ag.iowa.gov Gary Krob Nathan Blake Witness has information regarding the State Data Center Office ofthe Iowa presence of hard-to-count populations in Attorney General Iowa, and areas particularly vulnerable to 1305 E. Walnut St. undercounting. Witness also has knowledge Des Moines,lA 50314 concerning outreach efforts in Iowa. 515-281-4325 nathan.bIake@ag.iowa.gov Ed Cook Nathan Blake Witness has information regarding the impact Legislative Services Office ofthe Iowa ofthe decennial census population count on Agency Attomey General the state redistricting process. 1305 E. Walnut St. Des Moines,lA 50314 515-281-4325 nathan.blake@ag.iowa.gov II. Fed R. Civ. P. 26(a)(l)(A)(H) disclosures: The documents and electronically stored information (collectively, \"Documents\") in Plaintiff State of Iowa's possession, custody, or control that may be used by Plaintiff State of Iowa to support its claims are described as follows.",
"Plaintiff State ofIowa expressly reserves its right to supplement this disclosure: Document Descriution Document Location ; Plaintiff State ofIowa plans to utilize the documents These documents are at a central declared by other Plaintiffs in this litigation. repository administered by the New York Attomey General's Office. III. Fed R. Civ. P. 26(a)(l)(A)(iii) disclosures - Computation of Damages: Not applicable. IV. Fed R. Civ.",
"P. 26(a)(l)(A)(iv) disclosures -Insurance Statements: Not applicable. V. Fed. R. Civ.P. 26(a)(2)(A)- Expert Testimony: Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 56 of 164 Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this^h day of July, 2018. THOMAS J. MILLER Attoriey Gei^ral of the Stat Nathan Blake Deputy Attorney General Office ofthe Attorney General ofIowa 1305 E. Walnut St. DesMoines,lA 50314 515-281-4325 nathan.blake@ag.iowa.gov Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 57 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ.",
"P. 26(a)(1), Plaintiff State of Maryland, by its attorney, John Grimm, Assistant Attorney General makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Maryland. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures.",
"2. Plaintiff State of Maryland reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of Maryland hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Maryland makes 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 58 of 164 no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of Maryland’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.",
"Plaintiff State of Maryland incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Maryland’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff State of Maryland reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff State of Maryland is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff State of Maryland waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of State of Maryland may use to support Plaintiff’s claims as detailed in the First Amended Complaint.",
"Plaintiff State of State of Maryland expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 59 of 164 Name Contact Information Subjects of Discoverable Information Marc Nicole John R. Grimm This individual has knowledge of the state Deputy Secretary, Assistant Attorney General budget including how a decrease in Maryland Department of Maryland Office of the federal aid could affect the State of Budget and Management Attorney General Maryland.",
"200 St. Paul Place Staff at the Maryland Baltimore, MD 21202 The Maryland Department of Planning Department of Planning 410-576-6339 provides guidance, analysis, outreach, and 410-576-6955 (fax) support to ensure the state’s public assets jgrimm@oag.state.md.us are preserved and protected, and to achieve the state’s goals for economic, community, and environmental vitality. Individuals within the Department of Planning may have knowledge of Maryland’s redistricting process, and outreach efforts Maryland will undertake with respect to the 2020 decennial census. II.",
"Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Maryland’s possession, custody, or control that may be used by Plaintiff State of Maryland to support its claims are described as follows. Plaintiff State of Maryland expressly reserves its right to supplement this disclosure: Document Description Document Location Md. Dep’t of Legislative This document is at a central repository administered by the New York Servs., Federal Funds Attorney General’s Office and is publicly available at History (Jan. 2016) http://mgaleg.maryland.gov/Pubs/BudgetFiscal/2016-Federal- Funds-History.pdf Md. FY2018 to FY2020 This document is at a central repository administered by the New York Consolidated Attorney General’s Office and is publicly available at Transportation Program, http://www.mdot.maryland.gov/newMDOT/Planning/ 2018 State Report on CTP/CTP_18_23_Final/CTP_FY2018-2023.pdf Transportation Md, Proposed Operating This document is at a central repository administered by the New York Budget, FY 2019 Attorney General’s Office and is publicly available at http://www.dbm.maryland.gov/budget/Pages/operbudhome.aspx 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 60 of 164 United States Census This document is at a central repository administered by the New York Bureau, Use of Census Attorney General’s Office and is publicly available at Bureau Data in Federal https://www2.census.gov/programs-surveys/decennial/2020/program- Funds Distribution (Sept. management/working-papers/Uses-of-Census-Bureau-Data-in-Federal- 2017) Funds-Distribution.pdf Maryland Senate Bill 855 This document is at a central repository administered by the New York Attorney General’s Office and is publicly available at http://mgaleg.maryland.gov/webmga/ frmMain.aspx?id=sb0855&stab=01&pid=billpage&tab=subject3&ys= 2018RS GW Institute of Public This document is at a central repository administered by the New York Policy, Counting for Dollars Attorney General’s Office and is publicly available at 2020: The Role of the https://gwipp.gwu.edu/counting-dollars-2020-role-decennial-census- Decennial Census in the geographic-distribution-federal-funds Geographic Distribution of Federal Funds United States Census This document is at a central repository administered by the New York Bureau, 2020 Census Attorney General’s Office and is publicly available at Operational Plan https://www.census.gov/programs-surveys/decennial-census/2020- census/planning-management/planning-docs/operational-plan.html United States Census This document is at a central repository administered by the New York Bureau, Press Release, Attorney General’s Office and is publicly available at Census Bureau Releases the https://www.census.gov/newsroom/press-releases/2018/roam-app.html Response Outreach Area Mapper Web Application (Feb. 7, 2018) III.",
"Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 61 of 164 V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 23rd day of June, 2018. BRIAN E. FROSH Attorney General of Maryland /s/ John R. Grimm JOHN R. GRIMM Assistant Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 410-576-6339 (tel.) 410-576-6955 (fax) jgrimm@oag.state.md.us 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 62 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ.",
"P. 26(a)(1), Plaintiff the Commonwealth of Massachusetts, by its attorney, Maura Healey, Attorney General of the Commonwealth of Massachusetts, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the Commonwealth of Massachusetts. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff the Commonwealth of Massachusetts reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff the Commonwealth of Massachusetts hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case.",
"By referring to documents in the Initial Disclosures, 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 63 of 164 Plaintiff the Commonwealth of Massachusetts makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff the Commonwealth of Massachusetts’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff the Commonwealth of Massachusetts incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff the Commonwealth of Massachusetts’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff the Commonwealth of Massachusetts reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff the Commonwealth of Massachusetts is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges.",
"Nor does Plaintiff the Commonwealth of Massachusetts waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff the Commonwealth of Massachusetts may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff the Commonwealth of Massachusetts expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 64 of 164 Name Contact Information Subjects of Discoverable Information Michelle K. Tassinari, Miranda M. Cover Witness has knowledge of: Director/Legal Counsel, Ann E. Lynch Elections Division, Assistant Attorneys General -Complete Count activities within Office of the Secretary of Massachusetts Attorney General’s Massachusetts the Commonwealth of Office, Massachusetts One Ashburton Place, 18th Floor -State-level grant making to Boston, MA 02108 community groups to fund Tel. (617) 727-2200 outreach to hard-to-count Fax (617) 727-5762 populations and expand census mercy.cover@state.ma.us participation ann.lynch@state.ma.us Massachusetts Immigrant Miranda M. Cover Witness organization has and Refugee Advocacy Ann E. Lynch knowledge of: Coalition (MIRA) Assistant Attorneys General Massachusetts Attorney General’s -The impact of the citizenship Office, question on community members’ One Ashburton Place, 18th Floor willingness to participate in the Boston, MA 02108 decennial census process Tel. (617) 727-2200 Fax (617) 727-5762 -The heightened fears surrounding mercy.cover@state.ma.us the 2020 decennial census ann.lynch@state.ma.us -Outreach efforts conducted to encourage participation in the census and complete count activities Phillip Granberry, PhD Miranda M. Cover Witness has knowledge of: Ann E. Lynch Assistant Attorneys General -The presence of hard-to-count Massachusetts Attorney General’s populations in Massachusetts Office, One Ashburton Place, 18th Floor -Areas particularly vulnerable to Boston, MA 02108 undercounting Tel.",
"(617) 727-2200 -Surveying hard-to-count Fax (617) 727-5762 populations in Massachusetts mercy.cover@state.ma.us ann.lynch@state.ma.us II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: Plaintiff the Commonwealth of Massachusetts expressly reserves its right to supplement this disclosure with documents or electronically stored information. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 65 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. MAURA HEALEY Attorney General for the Commonwealth of Massachusetts By: /s Jonathan Miller Jonathan Miller, Assistant Attorney General Miranda Cover, Assistant Attorney General Ann E. Lynch, Assistant Attorney General Public Protection & Advocacy Bureau Massachusetts Attorney General’s Office One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Mercy.Cover@state.ma.us Ann.Lynch@state.ma.us Tel.",
"(617) 727-2200 Fax (617) 727-5762 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 66 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Minnesota makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Minnesota. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2.",
"Plaintiff State of Minnesota reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of Minnesota hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Minnesota makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 67 of 164 4. Plaintiff State of Minnesota’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of Minnesota incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Minnesota’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control.",
"Plaintiff State of Minnesota reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff State of Minnesota is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff State of Minnesota waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over- breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Minnesota may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of Minnesota expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 68 of 164 Name Contact Information Subjects of Discoverable Information Susan Brower, May be contacted Witness has information regarding the Minnesota State through counsel for presence of hard-to-count populations in Demographer, the State of Minnesota, and areas particularly Minnesota State Minnesota. vulnerable to undercounting. The witness Demographic Center also has knowledge of the impact of decennial census population counts on state/local funding and budgets, the impact of the citizenship question on community members’ willingness to participate in the decennial census process, heightened fears surrounding the 2020 decennial census, Minnesota’s efforts to mitigate the impact of the citizenship question on non-response rates, outreach efforts conducted by the Census Bureau, and the impact of the decennial census population count on the state redistricting process.",
"Denise Anderson, Chief May be contacted The witness has knowledge of the impact Financial Officer, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Education Minnesota. Daron Korte, Assistant May be contacted The witness has knowledge of the impact Commissioner, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Education Minnesota. Leigh Schleicher, May be contacted The witness has knowledge of the impact Federal Program through counsel for of decennial census population counts on Division Director, the State of state/local funding and budgets. Minnesota Department Minnesota. of Education Nick Greene, Director of May be contacted The witness has knowledge of the impact Property Tax Research, through counsel for of decennial census population counts on Minnesota Department the State of state/local funding and budgets. of Revenue Minnesota.",
"3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 69 of 164 Discovery is ongoing. Other individuals with relevant knowledge may be identified in documents reference below or produced in discovery. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Minnesota’s possession, custody, or control that may be used by Plaintiff State of Minnesota to support its claims are described as follows. Plaintiff State of Minnesota expressly reserves its right to supplement this disclosure: Document Description Document Location Documents that support the allegations in the First These documents are at a central Amended Complaint. repository administered by the New York Attorney General’s Office. Demographic reports regarding Minnesota, including its Many of these documents are hard-to-count populations publicly available. These documents are also either at the U.S. Census Bureau, at a central repository administered by the New York Attorney General’s Office, or both.",
"The State of Minnesota’s outreach plans for the 2020 These documents are at a central census. repository administered by the New York Attorney General’s Office. Documents regarding the role of the decennial census in Many of these documents are the distribution of federal and state funds. publicly available. The U.S. Census Bureau also has some documents. Additional documents would be in the possession of federal governmental entities that implement the affected program, at a central repository administered by the New York Attorney General’s Office, or both. 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 70 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed.",
"R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. OFFICE OF THE ATTORNEY GENERAL State of Minnesota s/ Jacob Campion JACOB CAMPION Assistant Attorney General Atty. Reg. No. 0391274 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1459 (Voice) (651) 282-5832 (Fax) jacob.campion@ag.state.mn.us ATTORNEY FOR STATE OF MINNESOTA 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 71 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff County of Monterey, California (“Monterey County”), by its attorney, William Litt, Deputy County Counsel, of the Office of the Monterey County Counsel, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Monterey County. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff Monterey County reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff Monterey County hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case.",
"By referring to documents in the Initial Disclosures, Plaintiff Monterey Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 72 of 164 County makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff Monterey County’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff Monterey County incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff Monterey County’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff Monterey County reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff Monterey County is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges.",
"Nor does Plaintiff Monterey County waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff Monterey County may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff Monterey County expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Dewayne 168 West Alisal Street, 3rd The witness has knowledge of the impact Woods, Floor, Salinas, CA 93901; of decennial census population counts on Assistant please contact through Monterey County funding and budgets. County counsel 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 73 of 164 Administrative Officer, County of Monterey, Budget & Analysis Division, Elliott 1000 South Main St., Ste.",
"The witness has knowledge of the Robinson, 301, Salinas, CA 93901; potential impact of depressed decennial Director, please contact through census population counts on Monterey Monterey counsel County SNAP funding and on individuals County and families receiving aid under SNAP. Department of Social Services Brent R. Nossaman, LLP, 1666 K The witness has knowledge of the sources Heberlee; Street, NW, Suite 500, and amounts of federal funding dependent federal lobbyist Washington, DC 20006; 202- on decennial census population counts for Monterey 887-1423; fax: 202-466- received by Monterey County and the County; 3215; impact of decennial census population bheberlee@nossaman.com counts on Monterey County funding and budgets. Rosemary Y. 168 West Alisal Street, 3rd The witness is a leader for the County’s Soto, Floor, Salinas, CA 93901; Complete Count Committee as a partner Management please contact through with the U.S. Census Bureau. She will be Analyst III , counsel convening a group of Monterey County CAO/Office of departmental staff and community Community partners to develop a strategy for a full Engagement and communications and outreach plan to Strategic increase participation.",
"Advocacy Juan P. 168 West Alisal Street, 3rd The witness has knowledge of Monterey Rodriguez, Floor, Salinas, CA 93901; County demographic information and the Monterey please contact through potential impact that undercounting the County Civil counsel population will have on the services Rights Officer provided to the community, regardless of immigration status. The witness is aware of the anxiety and fear the potential use of this question has on Monterey County 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 74 of 164 residents and the negative effects – non- participation, among others – it will have. Sabino F. 22 West Gabilan Street, The witness has knowledge of the impact Lopez, Center Salinas, Ca 93901; 831-753- of the citizenship question on community For Community 2324 x 12; slopez@cca- members’ willingness to participate in the Advocacy, viva.org decennial census process. The witness Interim has knowledge of the heightened fears Executive surrounding the 2020 decennial census.",
"Director The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups. Cesar Lara, 831-444-5060; The witness has knowledge of the impact Monterey Bay director@mbclc.org of the citizenship question on community Central Labor members’ willingness to participate in the Council, decennial census process. The witness Executive has knowledge of the heightened fears Director surrounding the 2020 decennial census. The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups. Andrea Manzo, 606 Williams Road, Salinas, The witness has knowledge of the impact Building CA 93905; 831-717-1384; of the citizenship question on community Healthy andreabhc@actioncouncil.org members’ willingness to participate in the Communities - decennial census process.",
"The witness East Salinas, has knowledge of the heightened fears Regional Equity surrounding the 2020 decennial census. Director The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups. Larry Imwalle, 295 Main Street, Suite 300 The witness has knowledge of the impact Action Council, of the citizenship question on community 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 75 of 164 Executive Salinas, CA 93901; 831-783- members’ willingness to participate in the Director 1244; decennial census process.",
"The witness larry@actioncouncil.org has knowledge of the heightened fears surrounding the 2020 decennial census. The witness has information regarding community groups’ efforts to mitigate the impact of the citizenship question on non- response rates. The witness has knowledge concerning outreach efforts conducted by the Census Bureau, and by community groups. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff Monterey County’s possession, custody, or control that may be used by Plaintiff Monterey County to support its claims are described as follows. Plaintiff Monterey County expressly reserves its right to supplement this disclosure: Document Description Document Location County of Monterey Schedule of Expenditures of Monterey County Counsel and Federal Awards for the Year Ended June 30, 2016 State of New York Attorney General’s Office County of Montey Schedule of Expenditures of Federal Monterey County Counsel and Awards for the Year Ended June 30, 2017 State of New York Attorney General’s Office Uses of census Bureau Data in Federal Funds Monterey County Counsel and Distribution: A New Design for the 21st Century; State of New York Attorney version 1.0; issued September 2017 by U.S. Census General’s Office Bureau; prepared by Marisa Hotchkiss, Jessica Phelan. III.",
"Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 76 of 164 V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 17th day of July, 2018. /s/ Charles J. McKee County Counsel William M. Litt Deputy County Counsel Office of the County Counsel County of Monterey 168 West Alisal St., 3rd Fl. Salinas, CA 93901 McKeeCJ@co.monterey.ca.us LittWM@co.monterey.ca.us Tel. (831) 755-5045 Fax (831) 755-5283 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 77 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), the State of North Carolina, by its attorney, Joshua H. Stein and Ryan Y. Park of the North Carolina Department of Justice, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of North Carolina. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of North Carolina reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of North Carolina hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case.",
"By referring to documents in the Initial Disclosures, Plaintiff State of North 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 78 of 164 Carolina makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of North Carolina’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of North Carolina incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of North Carolina’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff State of North Carolina reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff State of North Carolina is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges.",
"Nor does Plaintiff State of North Carolina waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of North Carolina may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of North Carolina expressly reserves the right to supplement this disclosure: Name Contact Subjects of Discoverable Information Information Michael E. Cline, PhD, 114 W. Edenton St. The witness has knowledge relating to the State Demographer, Raleigh, NC 27603 impact of the decennial census population Demographic and rpark@ncdoj.gov count on the federal and state post- Economic Analysis decennial census population estimates 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 79 of 164 Section, (919) 716-6400 process, the presence of hard-to-count North Carolina Office of populations in North Carolina, areas State Budget and particularly vulnerable to undercounting, Management 2020 Census planning, and the impacts of the decennial census counts on socioeconomic and demographic estimates (such as those derived through the Census Bureau’s American Community Survey and various Bureau of Labor Statistics surveys). Debbie Collins, 114 W. Edenton St. The witness has knowledge relating to the Director, Raleigh, NC 27603 impact of the decennial census population Public Transportation rpark@ncdoj.gov counts on state transit funding and Division, (919) 716-6400 budgets.",
"North Carolina Department of Transportation Kevin Rich, 114 W. Edenton St. The witness has knowledge relating to the Budget Development Raleigh, NC 27603 impact of the decennial census population Analyst—Health and rpark@ncdoj.gov counts on state health, housing, and Human Services, (919) 716-6400 human services funding and budgets. North Carolina Office of State Budget and Management Jennifer Neisner, 114 W. Edenton St. The witness has knowledge relating to the Budget Development Raleigh, NC 27603 impact of the decennial census population Analyst—Education, rpark@ncdoj.gov counts on state K-12 education funding North Carolina Office of (919) 716-6400 and budgets. State Budget and Management 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 80 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of North Carolina’s possession, custody, or control that may be used by Plaintiff State of North Carolina to support its claims are described as follows.",
"Plaintiff State of North Carolina expressly reserves its right to supplement this disclosure: Document Description Document Location Analysis of hard-to-count populations, demographic These documents will be at a reports relating to hard-to-count populations, budget central repository administered by requests related to Census promotional material, the New York Attorney General’s preparation of plans to mitigate non-response and Office. subsequent undercounting, and budget analyses of the impact of undercount. 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 81 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable.",
"V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 18th day of July, 2018. JOSHUA H. STEIN Attorney General of the State of North Carolina /s Ryan Y. Park Ryan Y. Park Deputy Solicitor General North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 RPark@ncdoj.gov Tel.",
"(919) 716-6400 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 82 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 83 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 84 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 85 of 164 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 86 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ.",
"P. 26(a)(1), Plaintiff the People of the State of New York (the “State of New York”), by its attorney, Barbara Underwood, Attorney General of the State of New York, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of New York. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of New York reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of New York hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case.",
"By referring to documents in the Initial Disclosures, Plaintiff State of New York makes 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 87 of 164 no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of New York’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of New York incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5.",
"Plaintiff State of New York’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody, or control. Plaintiff State of New York reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff State of New York is not identifying documents protected from disclosure by the attorney-client, work product, or other applicable privileges. Nor does Plaintiff State of New York waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) Disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of New York may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of New York expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 88 of 164 Name Contact Information Subjects of Discoverable Information John C. Traylor, New York State Office of The witness has knowledge of the impact of Executive Deputy the Attorney General decennial census population counts on Comptroller, Office of Ajay Saini federal funding to the State of New York, Operations, New York ajay.saini@ag.ny.gov and knowledge of resources expended by State Office of the (212) 416-8714 the State of New York to mitigate potential Comptroller undercounting during the decennial census.",
"Elizabeth OuYang, New York State Office of The witness has knowledge of the impact of Coordinator, the Attorney General the citizenship question on community NYCounts2020 Ajay Saini members’ willingness to participate in the ajay.saini@ag.ny.gov decennial census process, knowledge of the (212) 416-8714 heightened fears surrounding the 2020 decennial census, and knowledge of efforts to mitigate potential undercounting during the decennial census. Individuals with whom Contact information is These witnesses have knowledge of the Secretary Ross within the custody and accuracy of representations made in the “personally had control of Defendants decision memo about their conversations specific conversations with Secretary Ross, and their positions on on the citizenship the citizenship question, including its question,” as potential impact on response rates, and the referenced in the importance of testing a citizenship question March 26, 2018 before adding it to the census questionnaire decision memo (AR001314) Members of the Census Contact information is These witnesses have knowledge of the Scientific Advisory within the custody and typical processes for researching, designing, Committee and the control of Defendants testing and vetting questions before adding National Advisory them to census surveys, knowledge of the Committee recommendations made to the Census Bureau about concerns related to immigrant anxiety and its potential impact on non- response, and knowledge of the concerns expressed about adding a citizenship question to the 2020 Census questionnaire.",
"3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 89 of 164 Employees of the Contact information is These witnesses have knowledge of Department of within the custody and Defendants’ decision making process, Commerce, including control of Defendants history of the citizenship question, policies the Census Bureau, and and procedures, testing protocols, and Department of Justice testing conducted relating to the decennial census and American Community Survey. These witnesses have information relating to the purported need for citizenship information, including alternative sources of data, and policies and practices relating to the enforcement of Section 2 of the Voting Rights Act. These witnesses have knowledge of the impact of the citizenship question on census participation, barriers to response rates, and Defendants’ follow-up efforts. II. Fed R. Civ. P. 26(a)(1)(A)(ii) Disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of New York’s possession, custody, or control that may be used by Plaintiff State of New York to support its claims are described as follows. Plaintiff State of New York expressly reserves its right to supplement this disclosure: Document Description Document Location A Portrait of Immigrants in New York, Office of the New This document is at a central repository York State Comptroller (Nov. 2016) administered by the New York Attorney General’s Office.",
"U.S. Unauthorized Immigration Population Estimates, Pew This document is at a central repository Research Ctr. (Nov. 3, 2016) administered by the New York Attorney General’s Office. Census 2020: Hard-to-Count Communities in New York, This document is at a central repository CUNY Mapping Service administered by the New York Attorney General’s Office. Quick Facts: New York 2018, U.S. Census Bureau This document is at a central repository administered by the New York Attorney General’s Office. 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 90 of 164 Grants to Local Educational Agencies, U.S. Dep’t of Educ. This document is at a central repository (July 3, 2018) administered by the New York Attorney General’s Office. Counting for Dollars 2020: The Role of the Decennial This document is at a central repository Census in the Geographic Distribution of Federal Funds, administered by the New York Attorney GW Institute of Public Policy (2018) General’s Office. FTA Allocations for Formula and Discretionary Programs This document is at a central repository by State FY 1998-2018, Federal Transit Administration administered by the New York Attorney General’s Office.",
"GW Institute of Public Policy: Counting for Dollars 2020 – This document is at a central repository New York, GW Institute of Public Policy (2017) administered by the New York Attorney General’s Office. Immigrants in New York, Am. Immigration Council (Oct. 4, This document is at a central repository 2017) administered by the New York Attorney General’s Office. Notice: Revised Apportionment of Federal-Aid Highway This document is at a central repository Program Funds for Fiscal Year (FY) 2017, Fed. Highway administered by the New York Attorney Admin. (Dec. 21, 2016) General’s Office. Table 3: FY 2017 Section 5307 and 5340 Urbanized Area This document is at a central repository Formula Appropriations (Full Year), Fed. Transit Admin. administered by the New York Attorney General’s Office. Publically available operational planning documents for the These documents are available at a 2020 Census from the U.S. Census Bureau, including all central repository administered by the versions of the 2020 Census Operation Plans, all 2020 New York Attorney General’s Office. Census Program Briefings and 2020 Census Program Management Reviews, and all 2020 Census Monthly Status Reports, U.S. Census Bureau Publically available documents from the U.S. Census These documents are available at a Bureau regarding its historic practices, including Procedural central repository administered by the Histories of the 1980 Census, 1990 Census, the History of New York Attorney General’s Office.",
"the 2000 Census, documents relating to the history of the 2010 Census, the Index of Questions from previous decennial censuses, and previous decennial census questionnaires Publically available documents of memoranda and These documents are available at a recommendations made by the Census Scientific Advisory central repository administered by the Committee and the National Advisory Committee, and New York Attorney General’s Office. responses and updates from the U.S. Census Bureau to Advisory Committees, as well as charters of those committees 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 91 of 164 Publically available documents from the Census Bureau These documents are available at a regarding the Bureau’s typical process for making changes central repository administered by the to decennial census questions, including documents New York Attorney General’s Office. containing standards for research, testing, and evaluation of proposed changes to questions on the 2020 Census, and documents containing information about proposed changes to the Race and Ethnicity question, and proposals to add a Middle Eastern and North African category to the Race and Ethnicity question Publically available documents from the Census Bureau These documents are available at a regarding previous and proposed efforts to mitigate non- central repository administered by the response during the decennial census, and to follow-up on New York Attorney General’s Office.",
"non-response, including documents summarizing outreach efforts, planning and assessing non-response follow-up operations, and researching, designing and describing imputation methods Publically available documents from the Census Bureau These documents are available at a regarding testing for the 2020 Census, including documents central repository administered by the planning, designing, and describing the implementation of New York Attorney General’s Office tests from 2012 to the present Publically available documents from the Census Bureau These documents are available at a regarding rates of non-response to questions and surveys, central repository administered by the including the rates of non-response on the annual American New York Attorney General’s Office Community Survey Respondent Confidentiality Concerns and Possible Effects This document is at a central repository on Response Rates and Data Quality for the 2020 Census, administered by the New York Attorney National Advisory Committee on Racial, Ethnic and Other General’s Office. Populations (Nov. 2, 2017) Respondent Confidentiality Concerns in Multilingual This document is at a central repository Pretesting Studies and Possible Effects on Response Rates administered by the New York Attorney and Data Quality for the 2020 Census, U.S. Census Bureau General’s Office.",
"(May 16-19, 2018) Respondent Confidentiality Concerns, Memorandum for This document is at a central repository Associate Directorate for Research and Methodology administered by the New York Attorney (ADRM) from Center for Survey Management, U.S. Census General’s Office. Bureau (Sept. 20, 2017) Uses of Census Bureau Data in Federal Funds Distribution, These documents are available at a U.S. Census Bureau, (Sept. 2017) central repository administered by the New York Attorney General’s Office Documents relating to statistical policy issued by federal These documents are publicly available. agencies, including the Office of Management and Budget 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 92 of 164 and the Census Bureau, including but not limited to Statistical Policy Directives No. 1 and 2.",
"Documents included in the Administrative Record produced by Defendants All documents identified by Defendants in their initial disclosures III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 23rd day of July, 2018. Barbara Underwood Attorney General of the State of New York /s/ Elena Goldstein Elena Goldstein Senior Trial Counsel New York State Office of the Attorney General 28 Liberty Street, 20th Fl. New York, NY 10005 7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 93 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of New Jersey, by its attorney, Rachel Wainer Apter, of the Office of the Attorney General, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of New Jersey. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures.",
"2. Plaintiff New Jersey reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff New Jersey hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff New Jersey makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff New Jersey’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff New 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 94 of 164 Jersey incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff New Jersey’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff New Jersey reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff New Jersey is not identifying documents protected from disclosure by the attorney- client, work product or other applicable privileges. Nor does Plaintiff New Jersey waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I.",
"Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of New Jersey may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of New Jersey expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Leonard Preston Rachel Wainer Apter The witness has knowledge of New Bureau Chief, Labor Market Assistant Attorney General Jersey’s efforts to encourage Information Richard J. Hughes Justice participation in the decennial census in NJ State Data Center Complex the past. Division of Economic and 25 Market Street, 8th Floor Demographic Research Trenton, New Jersey 08625 Office of Research and Desk: (609) 376-2702 Information Rachel.Apter@njoag.gov Department of Labor and Workforce Development Lauren M. Zyriek Rachel Wainer Apter The witness has knowledge of how N.J. Director of Assistant Attorney General Assembly No. 4208, an Act Intergovernmental Affairs Richard J. Hughes Justice establishing the New Jersey Complete Office of the Secretary of Complex Count Commission, which was passed State 25 Market Street, 8th Floor by the legislature on June 30, 2018, Department of State Trenton, New Jersey 08625 will be implemented if signed by the Desk: (609) 376-2702 Governor.",
"She also has knowledge of Rachel.Apter@njoag.gov New Jersey’s efforts to encourage participation in the 2020 census. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 95 of 164 Lynn Azarchi Rachel Wainer Apter The witness has knowledge of the Deputy Director, Office of Assistant Attorney General impact of decennial census population Management and Budget Richard J. Hughes Justice counts on state/local funding and Complex budgets. Or 25 Market Street, 8th Floor Trenton, New Jersey 08625 Dave Ridolfino Desk: (609) 376-2702 Department of the Treasury Rachel.Apter@njoag.gov Acting Director, Office of Management and Budget Scott Novakowski Rachel Wainer Apter The witness has knowledge of outreach Associate Counsel and Assistant Attorney General efforts that are being undertaken by Debevoise Legal Fellow Richard J. Hughes Justice non-profit organizations in New Jersey New Jersey Institute for Complex to ensure an accurate count. Social Justice 25 Market Street, 8th Floor Trenton, New Jersey 08625 Desk: (609) 376-2702 Rachel.Apter@njoag.gov Sara Cullinane Rachel Wainer Apter The witness has knowledge of the Executive Director Assistant Attorney General impact of the citizenship question on Make the Road New Jersey Richard J. Hughes Justice community members’ willingness to Complex participate in the 2020 census and 25 Market Street, 8th Floor heightened fears surrounding the 2020 Trenton, New Jersey 08625 census. She also has knowledge of Desk: (609) 376-2702 outreach efforts that are being Rachel.Apter@njoag.gov undertaken by non-profit organizations in New Jersey to ensure an accurate count. II. Fed R. Civ.",
"P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff New Jersey’s possession, custody, or control that may be used by Plaintiff New Jersey to support its claims are described as follows. Plaintiff New Jersey expressly reserves its right to supplement this disclosure: Document Description Document Location State of New Jersey, Assembly No. 4208, 218th Legislature, This document is at a central an Act establishing the New Jersey Complete Count repository administered by the New Commission York Attorney General’s Office 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 96 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV.",
"Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 20th day of July, 2018. GURBIR S. GREWAL Attorney General of the State of New Jersey /s/ Rachel Wainer Apter Assistant Attorney General Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor, West Wing Trenton, New Jersey 08625-0080 Desk: (609) 376-2702 | Cell: (609) 331-6401 Rachel.Apter@njoag.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 97 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of New York by its attorney, Zachary W. Carter, Corporation Counsel of the City of New York, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to City of New York. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of New York reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff City of New York hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of New York makes Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 98 of 164 no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents.",
"4. Plaintiff City of New York’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of New York incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff City of New York’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of New York reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of New York is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of New York waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of New York may use to support Plaintiff’s claims as detailed in the First Amended Complaint.",
"Plaintiff City of New York expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Joseph Salvo, Director of Ajay Saini Witness has information regarding the Population Division, NYC Assistant Attorney presence of hard-to-count populations in Department of City General NYC, and areas particularly vulnerable to Planning Civil Rights Bureau undercounting. Witness has knowledge 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 99 of 164 New York State concerning the outreach efforts conducted by Office of the Attorney the Census Bureau. General 28 Liberty Street, 20th Floor New York, NY 10271 (212) 416-8714 Peter Lobo, Deputy Ajay Saini Witness has information regarding the Director of Population Assistant Attorney presence of hard-to-count populations in Division, NYC General NYC, and areas particularly vulnerable to Department of City Civil Rights Bureau undercounting. Planning New York State Office of the Attorney General 28 Liberty Street, 20th Floor New York, NY 10271 (212) 416-8714 II.",
"Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff City of New York’s possession, custody, or control that may be used by Plaintiff City of New York to support its claims are described as follows. Plaintiff City of New York expressly reserves its right to supplement this disclosure: Document Description Document Location The City of New York’s 2000 Census Appeal This document is at a central Documentation repository administered by the New Submitted to the Census Address List Appeals Office by York Attorney General’s Office. the New York City Department of City Planning, February 8, 2000. 2010 Census Local Review of Census Addresses This document is at a central (LUCA) Documentation repository administered by the New Submitted by the City of New York on December 17, York Attorney General’s Office.",
"2009. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 100 of 164 https://www.census.gov/programs-surveys/decennial- This document is at a central census/2020-census/planning-management/planning- repository administered by the New docs/operational-plan.html York Attorney General’s Office. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 20th day of July, 2018. ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel: (212) 356-4055 By: ______/s/____________________ Tonya Jenerette Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 356-4055 tjeneret@law.nyc.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 101 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., INITIAL DISCLOSURES (Plaintiff State Plaintiffs, of Oregon) v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Oregon (the “State of Oregon”) makes the following Initial Disclosures.",
"INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the State of Oregon. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of Oregon reserves the right at any time to revise and/or supplement these Initial Disclosures.",
"3. Plaintiff State of Oregon hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Oregon makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 102 of 164 4. Plaintiff State of Oregon’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of Oregon incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiff State of Oregon’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff State of Oregon reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff State of Oregon is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff State of Oregon waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Oregon may use to support Plaintiff’s claims as detailed in the First Amended Complaint.",
"Plaintiff State of Oregon expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Irma Linda Castillo, Oregon Commission on The witnesses have knowledge of the impact Chair Hispanic Affairs of the decennial census and citizenship c/o Scott Kaplan questioning on the Hispanic population and Dr. Daniel Lopez- Oregon Department of the related impact on public services available Ceballos, Vice Chair Justice to the Hispanic population. The witnesses 100 Market St. have knowledge of the risk and impact of Dr. Joseph Gallegos, Portland, OR 97201 undercount of the Hispanic population should Commission Member (971) 673-5037 a citizenship question be included in the Alberto Moreno, Past decennial census. The witnesses have 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 103 of 164 Chair knowledge that Oregon’s Hispanic population is a hard-to-count population for the census.",
"The witnesses have knowledge of the impact of the citizenship question on community members’ willingness to participate in the decennial census process. Chanpone Sinlapasai- Oregon Commission on The witness has knowledge of the impact of Okamura, J.D., Chair Asian and Pacific Islander the decennial census and citizenship Affairs questioning on the Asian and Pacific Islander c/o Scott Kaplan population and the related impact on public Oregon Department of services available to these populations. The Justice witnesses have knowledge that Oregon’s 100 Market St. Asian and Pacific Islander population is a Portland, OR 97201 hard-to-count population for the census. The (971) 673-5037 witness has knowledge of the risk and impact of undercount of the Asian and Pacific Islander population should a citizenship question be included in the decennial census.",
"The witness has knowledge of the impact of the citizenship question on community members’ willingness to participate in the decennial census process. Emily Nazarov, Oregon Department of The witness has knowledge of the impact of Government and Legal Education decennial census population counts on school Affairs Manager c/o Scott Kaplan funding and budgets, including the existence Oregon Department of of unauthorized immigrants (including U.S. Justice citizen children) in Oregon’s K-12 school 100 Market St. population, ODE’s policies and practices Portland, OR 97201 towards the same and the census impact on (971) 673-5037 ODE programs including meal programs. Belit Burke, Self- Oregon Department of The witness has knowledge of the presence of Sufficiency Design Human Services populations in Hispanic, Alaska Native and Administrator c/o Scott Kaplan Native American communities, and other Oregon Department of areas and communities particularly vulnerable Justice to undercounting.",
"The witness has 100Market St. information regarding Oregon’s reliance on Portland, OR 97201 the decennial census statistics for important (971) 673-5037 supplemental nutrition (SNAP) and food stamps programs, which currently serves about 20% of Oregon’s residents, and the Child Care and Development Fund. John T. Baker, Oregon Department of The witness has information regarding the Transportation Transportation impact of an undercount on funding for Economist c/o Scott Kaplan highway construction and maintenance within Oregon Department of the State through the Highway Trust Fund and Justice other federal infrastructure funding programs, 100 Market St. including crucial North-South and East-West 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 104 of 164 Portland, OR 97201 highways such as Interstates 5 and 84. (971) 673-5037 Person most Oregon Health Authority The witness has information regarding knowledgeable (to be c/o Scott Kaplan Oregon’s reliance on the federal Health determined) Oregon Department of Center Program for medical care to migrant Justice and other underserved communities within the 100 Market St. State, as well as Oregon’s reliance on the Portland, OR 97201 Medical Assistance Program (“Medicaid”).",
"(971) 673-5037 The witness has information regarding Oregon’s reliance on the decennial census for funding of this program, and the impact an undercount of Oregon’s population could have on this funding and program. Charles Rynerson, State Data Center, The witness has knowledge of the impact Coordinator Population Research of decennial census population counts on Center, Portland State state and local funding and budgets. The University witness has information regarding demographic, economic, and social statistics produced by the Census Bureau relating to the State of Oregon. The witness is knowledgeable about Oregon state and local outreach efforts and census data. Officers, employees and Contact information not Information regarding the processes by which representatives of currently known defendants proposed a citizenship question for defendants identified by the 2020 census, the stated and actual reasons defendants and by for adding this question, the persons involved plaintiffs herein in this decision, and the likely effects of the decision.",
"II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Oregon’s possession, custody, or control that may be used by Plaintiff State of Oregon to support its claims are described as follows. Plaintiff State of Oregon expressly reserves its right to supplement this disclosure: Document Description Document Location Documents relating to current school funding and budgets, From Oregon Department of including the number of unauthorized immigrants (including Education. The document(s) will be U.S. citizen children) in Oregon’s K-12 school population, made available at a central document Special Education funding and the School Breakfast and repository administered by the New 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 105 of 164 National School Lunch Programs. York Attorney General’s Office. Documents relating to the presence of hard-to-count From Oregon Department of Human populations in Hispanic, Alaska Native and Native American Services. The document(s) will be communities, and other areas particularly vulnerable to made available at a central document undercounting, as well as documents relating to Oregon’s use repository administered by the New of and funding source(s) for supplemental nutrition (SNAP) York Attorney General’s Office. and food stamps programs and the Child Care and Development Fund.",
"Documents relating to funding for highway construction and From Oregon Department of maintenance within the State through the Highway Trust Transportation. The document(s) will Fund and other federal infrastructure funding programs. be made available at a central document repository administered by the New York Attorney General’s Office. Documents relating to Oregon’s use of funds from the federal From Oregon Health Authority. The Health Center Program for medical care to migrant and other document(s) will be made available at underserved communities within the State, and the Medical a central document repository Assistance Program (“Medicaid”). administered by the New York Attorney General’s Office. Documents relating to the Oregons past practice of The document(s) will be made expending resources towards community outreach and available at a central document encouraging participation in the Census.",
"repository administered by the New York Attorney General’s Office. Documents relating to the impact of decennial census From Oregon State Treasurer. The population counts on state and local funding and budgets. document(s) will be made available at a central document repository administered by the New York Attorney General’s Office. 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 106 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff State of Oregon will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 20th day of July, 2018. Ellen Rosenblum Attorney General of the State of Oregon /s/ Scott J. Kaplan Scott J. Kaplan.",
"pro hac vice Senior Assistant Attorney General Oregon Department of Justice 100 Market St. Portland, OR 97201 971-673-5037 Scott.j.kaplan@doj.state.or.us 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 107 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the Commonwealth of Pennsylvania, by its attorney, Michael J. Fischer, Chief Deputy Attorney General, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the Commonwealth of Pennsylvania. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff Commonwealth of Pennsylvania reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff Commonwealth of Pennsylvania hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 108 of 164 Commonwealth of Pennsylvania makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents.",
"4. Plaintiff Commonwealth of Pennsylvania’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff Commonwealth of Pennsylvania incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff Commonwealth of Pennsylvania’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff Commonwealth of Pennsylvania reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff Commonwealth of Pennsylvania is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff Commonwealth of Pennsylvania waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff Commonwealth of Pennsylvania may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff Commonwealth of Pennsylvania expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 109 of 164 Name Contact Information Subjects of Discoverable Information Anne Baloga c/o Michael Fischer The witness has knowledge of the Deputy Secretary Pennsylvania Office of impact of decennial census Pennsylvania Office of the Attorney General population counts on state/local Budget 1600 Arch St., Suite 300 funding and budgets as well as Philadelphia, PA 19103 knowledge of Pennsylvania’s efforts to ensure an accurate 2020 (215) 560-2171 decennial census, including efforts to identify hard-to-count populations.",
"David Brinton c/o Michael Fischer The witness has knowledge of Local Government Policy Pennsylvania Office of Pennsylvania’s efforts to ensure an Manager Attorney General accurate 2020 decennial census, Pennsylvania Department 1600 Arch St., Suite 300 including efforts to identify hard- of Community & Economic Philadelphia, PA 19103 to-count populations, as well as Development knowledge of outreach efforts (215) 560-2171 conducted by the Census Bureau. Richard Vilello c/o Michael Fischer The witness has knowledge Deputy Secretary for Pennsylvania Office of Pennsylvania’s efforts to ensure an Community Affairs and Attorney General accurate 2020 decennial census, Development 1600 Arch St., Suite 300 including efforts to identify hard- Pennsylvania Department Philadelphia, PA 19103 to-count populations, as well as of Community & Economic knowledge of outreach efforts Development (215) 560-2171 conducted by the Census Bureau. II.",
"Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: At this time, Plaintiff Commonwealth of Pennsylvania does not identify any documents and electronically stored information pursuant to Fed R. Civ. P. 26(a)(1)(A)(ii). Plaintiff Commonwealth of Pennsylvania expressly reserves its right to supplement this disclosure. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 110 of 164 V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania /s/ Michael J. Fischer Michael J. Fischer Chief Deputy Attorney General Office of Attorney General 1600 Arch Street, Suite 300 Philadelphia, PA 19103 (215) 560-2171 mfischer@attorneygeneral.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 111 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City of Philadelphia, by its attorney, Benjamin H. Field, Deputy City Solicitor of the City of Philadelphia, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Philadelphia. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures.",
"2. Plaintiff City of Philadelphia reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff City of Philadelphia hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Philadelphia 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 112 of 164 makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Philadelphia’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Philadelphia incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiff City of Philadelphia’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Philadelphia reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of Philadelphia is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Philadelphia waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 113 of 164 INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Philadelphia may use to support Plaintiff’s claims as detailed in the First Amended Complaint.",
"Plaintiff City of Philadelphia expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Vaugh Ross Benjamin H. Field The witness has knowledge of the Deputy Chief of Staff Deputy City Solicitor actions Philadelphia has taken and Mayor’s Office Philadelphia Law will need to take to attempt to City of Philadelphia Department minimize an undercount resulting (215) 683-5024 from the addition of a citizenship Benjamin.Field@phila.gov question and meetings the City has had with Census Bureau officials on the issue. Ashley del Bianco Benjamin H. Field The witness has knowledge of the Chief Grants Officer Deputy City Solicitor grants funds the City receives City of Philadelphia Philadelphia Law from the state and federal Department government that are dependent on (215) 683-5024 census population counts and how Benjamin.Field@phila.gov an undercount would affect the amount of funds received by Philadelphia.",
"Ajeenah S. Amir Benjamin H. Field The witness knowledge related to Director Deputy City Solicitor her role in coordinating the City’s Mayor’s Office of Public Philadelphia Law outreach efforts to avoid an Engagement (OPE) Department undercount in the 2020 census if City of Philadelphia (215) 683-5024 the citizenship question is added. Benjamin.Field@phila.gov 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 114 of 164 Miriam E. Enriquez, Benjamin H. Field The witness has knowledge related Esq.",
"Deputy City Solicitor to the populations of hard-to-count Director Philadelphia Law populations including documented Office of Immigrant Department and undocumented immigrants in Affairs (215) 683-5024 Philadelphia, and the heightened City of Philadelphia Benjamin.Field@phila.gov climate of fear among those populations resulting from the current administration’s immigration actions, including the proposal to add a citizenship question to the census/ II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff City of Philadelphia’s possession, custody, or control that may be used by Plaintiff City of Philadelphia to support its claims are described as follows.",
"Plaintiff City of Philadelphia expressly reserves its right to supplement this disclosure: Document Description Document Location Annual grant award documents These documents will be provided to the NYAG’s and kept at a central repository administered by that office. Philadelphia Research Initiative, Pew Charitable http://www.pewtrusts.org/en/research- Trusts, Philadelphia’s Immigrants (June 7, 2018). and- analysis/reports/2018/06/07/philadelphias- immigrants 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 115 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ.",
"P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 19th day of July, 2018. MARCEL S. PRATT CITY SOLICITOR for the CITY OF PHILADELPHIA /s/ Benjamin H. Field Benjamin H. Field Deputy City Solicitor City of Philadelphia Law Department 1515 Arch Street, 15th Floor Philadelphia, PA 19102 (215) 683-5024 Benjamin.Field@phila.gov 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 116 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff City of Pittsburgh makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Pittsburgh. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Pittsburgh reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff City of Pittsburgh hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Pittsburgh makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 117 of 164 4. Plaintiff City of Pittsburgh’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Pittsburgh incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiff City of Pittsburgh’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Pittsburgh reserves the right to use all documents produced by any party or non- party to this action. With these Initial Disclosures, Plaintiff City of Pittsburgh is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Pittsburgh waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Pittsburgh may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff City of Pittsburgh expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Mike Petrucci c/o City of Pittsburgh The witness has knowledge of the Assistant Director, Law Dept., 414 Grant impact of decennial census population Community Development Street, Pittsburgh, PA counts on City of Pittsburgh Office of Management and 15219 funding/budgets, including the City’s Budget reliance on funding from Community Development Block Grant programs. Feyisola Alabi c/o City of Pittsburgh The witness is the City of Pittsburgh’s Special Initiatives Manager, Law Dept., 414 Grant representative on the Complete Count 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 118 of 164 Welcoming Pittsburgh Street, Pittsburgh, PA Commission being formed by the City (Manager) 15219 of Pittsburgh and Allegheny County, Office of the Mayor and has knowledge of the presence of hard-to-count populations in the City, the City’s efforts to reach them, and the City’s efforts to mitigate the impact of a citizenship question on response rates. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff City of Pittsburgh’s possession, custody, or control that may be used by Plaintiff City of Pittsburgh to support its claims are described as follows. Plaintiff City of Pittsburgh expressly reserves its right to supplement this disclosure: Document Description Document Location Information as to funds received by the City of This information is at a central Pittsburgh pursuant to the CDBG program.",
"repository administered by the New York Attorney General’s Office, and/or maintained by Defendants and available via HUD’s Integrated Disbursement and Information System (IDIS). Any documents related to the formation and activities of This information will be at a central the anticipated City-County Complete Count repository administered by the New Commission, relating to efforts to mitigate impact of the York Attorney General’s Office. citizenship question. II. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. III. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 119 of 164 IV. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure.",
"DATED this 23d day of July, 2018. YVONNE S. HILTON Acting City Solicitor s/ Matthew S. McHale, Esq. Matthew S. McHale, Esq. (Pa. ID No. 91880) Admitted pro hac vice Associate City Solicitor City of Pittsburgh Law Department 414 Grant Street, Pittsburgh, PA 15219 (412) 255-2015 matthew.mchale@pittsburghpa.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 120 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the City of Providence, by its attorney, Jeffrey Dana, City Solicitor of the City of Providence, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Providence. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Providence reserves the right at any time to revise and/or supplement these Initial Disclosures.",
"3. Plaintiff City of Providence hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 121 of 164 Providence, makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Providence’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Providence incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims.",
"5. Plaintiff City of Providence’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Providence reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff City of Providence is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Providence waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over- breadth, and all applicable privileges. INITIAL DISCLOSURES I.",
"Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Providence may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff City of Providence expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Gabriela Domenzain, City of Providence The witness has knowledge of the impact Latino Policy Institute Office of the City Solicitor of the citizenship question on community 444 Westminster Street, members’ willingness to participate in the Suite 220 decennial census process. The witness has knowledge of the heightened fears 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 122 of 164 Providence, RI 02903 surrounding the 2020 decennial census. (401) 680-5333 Witness has knowledge concerning outreach efforts conducted by the Census Bureau. John Marion, Common City of Providence The witness has information regarding the Cause Rhode Island Office of the City Solicitor Complete Count Committee’s efforts to 444 Westminster Street, mitigate the impact of the citizenship Suite 220 question on non-response rates. Witness Providence, RI 02903 has knowledge concerning outreach efforts conducted by the Census Bureau.",
"(401) 680-5333 Henrietta White-Holder, City of Providence The witness has knowledge of the impact Higher Ground Office of the City Solicitor of the citizenship question on community International 444 Westminster Street, members’ in hard to count communities Suite 220 willingness to participate in the decennial census process. The witness has Providence, RI 02903 knowledge of the heightened fears (401) 680-5333 surrounding the 2020 decennial census. Witness has knowledge concerning outreach efforts conducted by the Census Bureau. David DosReis, GIS City of Providence Witness has information regarding the Manager Office of the City Solicitor presence of hard-to-count populations in 444 Westminster Street, Providence, and areas particularly Suite 220 vulnerable to undercounting. Providence, RI 02903 (401) 680-5333 Emily Freedman, City of Providence The witness has knowledge of the impact Director of Community Office of the City Solicitor of decennial census population counts on Development 444 Westminster Street, state/local funding and budgets.",
"Suite 220 Providence, RI 02903 (401) 680-5333 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 123 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The City of Providence does not have documents that may be used to support its claims at this time. The City of Providence reserves the right to supplement this disclosure. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV.",
"Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 17th day of July, 2018. Jeffrey Dana City Solicitor of the City of Providence /s/Jeffrey Dana Jeffrey Dana City Solicitor City of Providence 444 Westminster Street, Suite 220 Providence, RI 02903 (401) 680-5333 Jdana@providenceri.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 124 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the State of Rhode Island, by its attorney, Peter F. Kilmartin, Attorney General of the State of Rhode Island, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the Plaintiff State of Rhode Island. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of Rhode Island reserves the right at any time to revise and/or supplement these Initial Disclosures. 3.",
"Plaintiff State of Rhode Island hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff State of Rhode 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 125 of 164 Island makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of Rhode Island’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff State of Rhode Island incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Rhode Island’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff State of Rhode Island reserves the right to use all documents produced by any party or non-party to this action.",
"With these Initial Disclosures, Plaintiff State of Rhode Island is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff State of Rhode Island waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Rhode Island may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of Rhode Island expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information John Marion, 245 Waterman Street, The witness has knowledge of the impact Executive Director, Suite 400A, of decennial census population counts on Common Cause RI Providence, RI 02906, Rhode Island federal representation and (401) 861-2322 federal funding. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 126 of 164 Robert Rapoza, 150 South Main Street, The witness has knowledge of the impact of Executive Director, Providence, RI 02903, decennial census population counts on Rhode Island Board of (401) 274-4400 statewide redistricting plans for Rhode Island Elections state legislative districts.",
"Omar Bah, Founder & 150 South Main Street, The witness has knowledge of the impact of Executive Director, Providence, RI 02903, the citizenship question on community Refugee Dream Center (401) 274-4400 members’ willingness to participate in the decennial census process. The witness has knowledge of the heightened fears surrounding the 2020 decennial census. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 127 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Rhode Island’s possession, custody, or control that may be used by Plaintiff State of Rhode Island to support its claims are described as follows. Plaintiff State of Rhode Island expressly reserves its right to supplement this disclosure: Document Description Document Location Election Data Services study: Kimball W. Brace, “Some This document is at a central Change in Apportionment Allocations With New 2017 repository administered by the Census Estimates; But Greater Change Likely by 2020”, New York Attorney General’s https://www.electiondataservices.com/wp- Office.",
"content/uploads/2017/12/NR_Appor17c3wTablesMapsC2.pdf (accessed March 23, 2018). 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 128 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this Eighteenth day of July, 2018. PETER F. KILMARTIN Attorney General of the State of Rhode Island By: /s Adam D. Roach Adam D. Roach Special Assistant Attorney General RI Office of the Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400 aroach@riag.ri.gov 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 129 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City and County of San Francisco (“San Francisco”), by its attorney, Dennis J. Herrera, City Attorney of the City and County of San Francisco, makes the following Initial Disclosures.",
"INTRODUCTION 1. These Initial Disclosures are based upon information presently known to San Francisco. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff San Francisco reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff San Francisco hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff San Francisco makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 130 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff San Francisco’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.",
"Plaintiff San Francisco incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff San Francisco’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff San Francisco reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff San Francisco is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff San Francisco waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ.",
"P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff San Francisco may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff San Francisco expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 131 of 164 Name Contact Information Subjects of Discoverable Information Adrienne Pon, The witness may be The witness has knowledge of outreach Executive Director, contacted through the San efforts for the 2010 and 2020 decennial City and County of Francisco City Attorney’s censuses, including San Francisco’s San Francisco’s Office, Deputy City efforts to mitigate the impact of the Immigrant Rights Attorney Mollie Lee at citizenship question on participation in the Commission and the (415) 554-4290 or 2020 Census.",
"Mayor’s Office of mollie.lee@sfcityatty.org. Civic Engagement and Immigrant Affairs Ben Rosenfield, City The witness may be The witness has knowledge of the impact Controller, City and contacted through the San of decennial census population counts on County of San Francisco City Attorney’s local funding and budgets. Francisco Office, Deputy City Attorney Mollie Lee at (415) 554-4290 or mollie.lee@sfcityatty.org. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff San Francisco’s possession, custody, or control that may be used by Plaintiff San Francisco to support its claims are described as follows.",
"Plaintiff San Francisco expressly reserves its right to supplement this disclosure: Document Description Document Location U.S. Department of Transportation Federal Transit This document is at a central Administration Grant Award to the City & County of repository administered by the New San Francisco for FY 2017 49 U.S.C. § 5307 Formula York Attorney General’s Office. Funds (Federal Award Identification No. CA-2017-117- 00) February 21, 2018 memorandum from Adrienne Pon to This document is at a central Mayor Mark Farrell titled “Ensuring an Accurate, repository administered by the New Complete, Fair and Inclusive 2020 Census Count” and York Attorney General’s Office. attachment 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 132 of 164 Document Description Document Location March 8, 2011 Press Release from Mayor Edwin M. Lee This document is at a central titled “Mayor Lee Announces U.S. Census Bureau repository administered by the New Results for San Francisco Population” York Attorney General’s Office. August 30, 2010 memorandum from Adrienne Pon to This document is at a central Ditas Katague, Louis Stewart, and Susan McAuliffe repository administered by the New titled “Final Report, California State Census 2010 York Attorney General’s Office.",
"Outreach Grant” April 14, 2010 memorandum from Adrienne Pon to City This document is at a central Administrator Edwin Lee titled “CENSUS/OCEIA repository administered by the New Budget Needs for FY2010-11” York Attorney General’s Office. February 26, 2010 Resolution authorizing the Office of This document is at a central Civic Engagement & Immigrant Affairs to accept and repository administered by the New expand a grant in the amount of $32,250 from the State York Attorney General’s Office. of California, Governor’s Office of Planning and Research, to support San Francisco’s complete count outreach and education activities related to the 2010 Census – File Number 100190 January 1, 2010 SF Counts: 2010 Census Strategic Plan This document is at a central – General and Implementation repository administered by the New York Attorney General’s Office. October 2009 Information Packet – Request for This document is at a central Proposals #2009-01 for SF 2010 Census Outreach repository administered by the New York Attorney General’s Office.",
"June 19, 2009 Resolution calling for an accurate, fair This document is at a central and inclusive count of all San Francisco residents in the repository administered by the New 2010 Census – File number 090744 York Attorney General’s Office. May 27, 2009 Executive Directive 09-02 titled “2010 This document is at a central Census Complete and Inclusive Count” repository administered by the New York Attorney General’s Office. U.S. Census Bureau Report S0501 – Selected This document is at a central Characteristics of the Native and Foreign-Born repository administered by the New Populations; 2012-2016 American Community Survey York Attorney General’s Office.",
"5-Year Estimates for San Francisco County, California 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 133 of 164 Document Description Document Location Screenshot of report on San Francisco County, This document is at a central California from www.censushardtocountmaps2020.us repository administered by the New displaying census self-response rates and data York Attorney General’s Office. Profile of the Unauthorized Population: San Francisco This document is at a central County, CA from the Migration Policy Institute repository administered by the New York Attorney General’s Office. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 17th day of July, 2018.",
"DENNIS J. HERRERA City Attorney /s/ Mollie M. Lee MOLLIE M. LEE, California SBN 251404 Deputy City Attorney SAN FRANCISCO CITY ATTORNEY’S OFFICE City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4602 (415) 554-4290 mollie.lee@sfcityatty.org 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 134 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, V. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.",
"Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the City of Seattle, by its attorney, Peter S. Holmes, Seattle City Attorney, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the City of Seattle. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff City of Seattle reserves the right at any time to revise and/or supplement these Initial Disclosures.",
"3. Plaintiff City of Seattle hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff City of Seattle makes no 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 135 of 164 representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff City of Seattle's identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff City of Seattle incorporates all individuals identified by all other parties in Plaintiff's Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5.",
"Plaintiff City of Seattle's identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff City of Seattle reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff City of Seattle is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff City of Seattle waive the right to object to Defendants' discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff City of Seattle may use to support Plaintiff's claims as detailed in the First Amended Complaint. Plaintiff City of Seattle expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Kelsey Beck, c/o Gary Smith — The witness has knowledge of the Regional Affairs Gary.Smith@seattle.gov impact of decennial census Director, Office of population counts on state/local Intergovernmental funding and budgets.",
"2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 136 of 164 Relations (OIR), City of Seattle Joaquin Uy, c/o Gary Smith — The witness has knowledge of the Communications Gary.Smith@seattle.gov impact of the citizenship question and Outreach on community members' Manager, Office willingness to participate in the of Immigrant and decennial census process. The Refugee Affairs, witness has knowledge of the City of Seattle 'heightened fears surrounding the 2020 decennial census. Witness has knowledge concerning outreach efforts conducted by the Census Bureau.",
"Diana Canzoneri, c/o Gary Smith — Witness has information Demographer, Gary.Smith@seattle.gov regarding the presence of hard-to- Office of Planning count populations in Seattle, and and Community areas particularly vulnerable to Development undercounting. (OPCD), City of Seattle Sierra Howlett c/o Gary Smith — Witness has information Browne, Federal Gary.Smith@seattle.gov regarding the impact of the Affairs Director, decennial census population Office of count on the state redistricting Intergovernmental process. Relations (OIR), City of Seattle Amy Nguyen, c/o Gary Smith — The witness has information Community Gary.Smith@seattle.gov regarding Seattle's efforts to Programs mitigate the impact of the Strategic Advisor, citizenship question on non- Department of response rates. Witness has Neighborhoods, knowledge concerning outreach City of Seattle efforts conducted by the Census Bureau.",
"3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 137 of 164 II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, \"Documents\") in Plaintiff City of Seattle's possession, custody, or control that may be used by Plaintiff City of Seattle to support its claims are described as follows.",
"Plaintiff City of Seattle expressly reserves its right to supplement this disclosure: Document Description Document Location Census Committee Proposal.pptx: City Proposed This document is at a central Census Committee Structure repository administered by the New York Attorney General's Office MEMO re 2020 Census CCC.PDF: Briefing This document is at a central Memorandum: 2020 Census Complete Count repository administered by the New Committee Proposal York Attorney General's Office \\Webpages\\About Seattle - OPCD seattle_gov.htm: This document is at a central Webpage providing Seattle's Population and Household repository administered by the New Statistics York Attorney General's Office Census Open House Working Planning Outline DATA This document is at a central COLLAB.docx: Draft Outline and Agenda City of repository administered by the New Seattle Census Open House York Attorney General's Office Copy of OPCD Mayor's Transition Section II Issue List This document is at a central sa dc.xlsx: Spreadsheet provided by OPCD to support repository administered by the New Mayor's transition York Attorney General's Office Data Disagg_ A Summary of Best Practice Examples This document is at a central and Challenges from the Pop-Level Subcmte.pptx: A repository administered by the New Summary of Best Practice Examples and Challenges: York Attorney General's Office Analyzing and Reporting Population Demographic Data - Produced by the Data Disaggregation Task Force Population-Level Subcommittee ACS_12_5YR_Foreign Born incl East African This document is at a central estim.xls: S0502: Selected Characteristics of the repository administered by the New Foreign-Born Population by Period of Entry into the York Attorney General's Office United States 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 138 of 164 GESCNA Committee DDTF Briefing Draft V2.pptx: This document is at a central Demographic Data Disaggregation Task Force: Gender repository administered by the New Equity, Safe Communities, and New Americans York Attorney General's Office Committee - December 14, 2016 Demographic Data Task Force Report-FINAL.pdf: This document is at a central Memorandum: Demographic Data Task Force Report repository administered by the New (Resolution 31613) York Attorney General's Office Dear Seattle Complete Count Committee This document is at a central members.docx: Subject Line: Census 2010 Open House repository administered by the New for local govt.",
"and non-profits March 1st at Seattle City York Attorney General's Office Hall Demog Data Task Force resources.txt: Subject: Demog This document is at a central Data Task Force resources repository administered by the New York Attorney General's Office Demographics & Disparities RSJI 2011 Summit This document is at a central Canzoneri Presentation.pptx: Demographics and repository administered by the New Disparities: Updated Data on Seattle - 2011 Race and York Attorney General's Office Social Justice Initiative (RSJI) Summit October 6, 2011 Workshop Presentation Disaggregated data for race ethnicity and ancestry This document is at a central groups gg edits 3-28 dc 6 10 2018.docx: Accessing repository administered by the New Disaggregated Data for Race/Ethnic Groups - Guidance York Attorney General's Office from the City of Seattle Demographer GESCNA Committee DDTF Briefing FINAL.pptx: This document is at a central Demographic Data Disaggregation Task Force: Gender repository administered by the New Equity, Safe Communities, and New Americans York Attorney General's Office Committee - December 14, 2016 Presentation to CEP Class 4 30 2012.ppt: New This document is at a central Demographic Data on Seattle and Its Neighborhoods - repository administered by the New Presentation to UW CEP303 Social Structures and York Attorney General's Office Processes http://www.seattle.gov/opcd/population-and- This document is at a central demographics: Population & Demographics - OPCD repository administered by the New seattle_gov_files York Attorney General's Office http://vvww.seattle.govicensus2010/committee.htm: This document is at a central Seattle Census 2010 Complete Count Committee_files repository administered by the New York Attorney General's Office 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 139 of 164 WSDC_Agenda_2017.pdf: Washington State Stat This document is at a central Center Annual Meeting - Agenda repository administered by the New York Attorney General's Office Final Demographic Data Task Force memo.docx: This document is at a central Memorandum: Demographic Data Task Force Report repository administered by the New (Resolution 31613) York Attorney General's Office Using the 2010 Census and ACS to Understand Seattle's This document is at a central Demographics for Kenny Backgroundf.ppt: Using the repository administered by the New ACS and Census to Understand Local Demographics - York Attorney General's Office Presentation to City Council Central Staff 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 140 of 164 III. Fed R. Civ.",
"P. 26(a)(1)(A)(iii) disclosures - Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures - Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) - Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED thisl7 th day of ,2018. PETER S. HOLMES Seattle city / Attorney By: Peter S. Holmes Seattle City Attorney Seattle City Attorney's Office 701Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 206.684.8200 Peter.hohnes@seattle.gov /-47‘57 7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 141 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATES OF NEW YORK, COLORADO, CONNECTICUT, DELAWARE, ILLINOIS, IOWA, MARYLAND, MINNESOTA, NEW JERSEY, NEW MEXICO, NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT, and WASHINGTON; COMMONWEALTHS OF CIVIL ACTION NO.",
"MASSACHUSETTS, PENNSYLVANIA, and 1:18-cv-2921 (JMF) VIRGINIA; DISTRICT OF COLUMBIA; CITIES OF CENTRAL FALLS, CHICAGO, COLUMBUS, PLAINTIFF UNITED NEW YORK, PHILADELPHIA, PITTSBURGH, STATES PROVIDENCE, and SEATTLE; CITY and CONFERENCE OF COUNTY of SAN FRANCISCO; COUNTIES OF MAYORS INITIAL CAMERON, EL PASO, HIDALGO, and DISCLOSURES MONTEREY; and the UNITED STATES CONFERENCE OF MAYORS, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE; and UNITED STATES OF AMERICA, THOMAS E. PRICE, in his official capacity as Secretary of the United States Department of Health and Human Services, and PATRICK CONWAY, in his official capacity as the Acting Administrator of the Centers for Medicare & MedicaidWILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce, and BUREAU OF THE CENSUS, an agency within the United States Department of Commerce; and RON S. JARMIN, in his capacity as performing the non-exclusive functions and duties of the Director of the U.S. Census Bureau, Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the People of the United States Conference of Mayor by its attorney, John Daniel Reaves, General Counsel, of the United States Conference of Mayors, makes the following Initial Disclosures.",
"Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 142 of 164 INTRODUCTION 1. These Initial Disclosures are based upon information presently known to the United States Conference of Mayors. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff the United States Conference of Mayors reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff the United States Conference of Mayors hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff United States Conference of Mayors makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4.",
"Plaintiff the United States Conference of Mayors’ identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff the United States Conference of Mayors incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff the United States Conference of Mayors’ identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 143 of 164 possession, custody or control.",
"Plaintiff State of New York reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff United States Conference of Mayors is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff United States Conference of Mayors waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: Plaintiff United States Conference of Mayors has no individual fact witnesses at this time but reserves the right to supplement this disclosure. II. Fed R. Civ.",
"P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff United States Conference of Mayors’ possession, custody, or control that may be used by Plaintiff United States Conference of Mayors to support its claims are described as follows. Plaintiff United States Conference of Mayors expressly reserves its right to supplement this disclosure: Document Description Document Location Declaration of John Daniel Reaves as to the United States The documents are at a Conference of Mayor’s Two Adopted Resolutions Opposing central repository Citizenship Question; Bipartisan Letter to Census Director administered by the State Opposing Use of Citizenship Question and Press Releases. of New York’s Attorney General’s Office. All are matters of public record and found at www.usmayors.org 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 144 of 164 III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable.",
"IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. DATED this 20th day of July, 2018. /s/ John Daniel Reaves, General Counsel United States Conference of Mayors 1200 New Hampshire Avenue, N.W., Third Floor Washington D.C., 20036 PHONE: (202) 974-5931 EMAIL: jdreavesoffice@gmail.com 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 145 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the Commonwealth of Virginia, by Mark R. Herring, Attorney General of the Commonwealth of Virginia, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to The Commonwealth of Virginia.",
"They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff Commonwealth of Virginia reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff Commonwealth of Virginia hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 146 of 164 documents in the Initial Disclosures, Plaintiff Commonwealth of Virginia makes no representations or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4.",
"Plaintiff Commonwealth of Virginia’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified. Plaintiff Commonwealth of Virginia incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff Commonwealth of Virginia’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody, or control. Plaintiff Commonwealth of Virginia reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Plaintiff Commonwealth of Virginia does not identify documents protected from disclosure by the attorney-client, work product, or other applicable privileges. Nor does Plaintiff Commonwealth of Virginia waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff Commonwealth of Virginia may use to support Plaintiff’s claims as 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 147 of 164 detailed in the First Amended Complaint. Plaintiff Commonwealth of Virginia expressly reserves the right to supplement this disclosure: Name Contact Subjects of Discoverable Information Information Qian Cai, Contact The witness has information regarding the Director, through presence of hard-to-count populations in Demographics counsel: Virginia, and areas particularly vulnerable Research Group, to undercounting.",
"Weldon Cooper 202 N. Ninth Center for Public Street Service, Richmond, VA University of 23219 Virginia (804) 786- 1068 Michael Cassidy, Contact The witness has knowledge of (1) the President and through impact of decennial census population Chief Executive counsel: counts on state/local funding and budgets, Officer of the and (2) the presence of hard-to-count Commonwealth 202 N. Ninth populations in the Virginia, and areas Institute for Fiscal Street particularly vulnerable to undercounting. Analysis Richmond, VA 23219 (804) 786- 1068 Robyn M. de Contact The witness has knowledge of the impact Socio, through of the decennial census population counts Executive counsel: on state/local funding and budgets in Secretary, public safety and law enforcement Commonwealth 202 N. Ninth coverage in localities. of Virginia Street Compensation Richmond, VA Board 23219 (804) 786- 1068 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 148 of 164 Julie Emery, Contact The witness has knowledge (1) of the Executive through impact of the citizenship question on Director, Virginia counsel: community members’ willingness to Civic Engagement participate in the decennial census process Table 202 N. Ninth in Virginia, (2) of the heightened fears Street surrounding the 2020 decennial census in Richmond, VA Virginia, and (3) concerning outreach 23219 efforts conducted by the Census Bureau in (804) 786- Virginia.",
"1068 Megan Healy, Contact The witness has knowledge of the impact Chief Workforce through of decennial census population counts on Development counsel: state/local funding and budgets in state Advisor, Office of workforce development programs. the Governor 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068 John Lawson, Contact The witness has knowledge of the impact Chief Financial through of decennial census population counts on Officer, Virginia counsel: state/local funding and budgets for the Department of Virginia Department of Transportation. Transportation 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 149 of 164 Jennifer Lee, Contact The witness has knowledge of the impact Director, through of decennial census population counts on Department of counsel: state/local funding and budgets in state Medical medical assistance services programs. Assistance 202 N. Ninth Services Street Richmond, VA 23219 (804) 786- 1068 Greg Lucyk, Contact The witness has information regarding the Board President, through impact of the decennial census population One Virginia counsel: count on the state redistricting process.",
"2021 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068 Fernando Contact The witness has knowledge of (1) the Mercado- through impact of the citizenship question on Violand, Director counsel: community members’ willingness to of Latino participate in the decennial census process Outreach, Office 202 N. Ninth in Virginia, and (2) the heightened fears of the Governor Street surrounding the 2020 decennial census in Richmond, VA Virginia. 23219 (804) 786- 1068 Tram Nguyen, Contact The witness has knowledge (1) of the Co-Executive through impact of the citizenship question on Director, New counsel: community members’ willingness to Virginia Majority participate in the decennial census process 202 N. Ninth in Virginia, (2) of the heightened fears Street surrounding the 2020 decennial census in Richmond, VA Virginia, and (3) concerning outreach 23219 efforts conducted by the Census Bureau in (804) 786- Virginia. 1068 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 150 of 164 Sookyung Oh, Contact The witness has knowledge of (1) the D.C. Area through impact of the citizenship question on Director, counsel: community members’ willingness to National Korean participate in the decennial census process American 202 N. Ninth in Virginia, and (2) the heightened fears Service & Street surrounding the 2020 decennial census in Education Richmond, VA Virginia. Consortium 23219 (804) 786- 1068 M. Norman Contact The witness has knowledge of the impact Oliver, State through of decennial census population counts on Commissioner of counsel: state/local funding and budgets in state Health, Virginia health programs.",
"Department of 202 N. Ninth Health Street Richmond, VA 23219 (804) 786- 1068 Atif Qarni, Contact The witness has knowledge of the impact Secretary of through of decennial census population counts on Education, Office counsel: state/local funding and budgets in of the Governor Virginia public education programs. 202 N. Ninth Street Richmond, VA 23219 (804) 786- 1068 Simon Sandoval- Contact The witness has knowledge of (1) the Moshenburg, through impact of the citizenship question on Legal Director, counsel: community members’ willingness to Immigrant participate in the decennial census process Advocacy 202 N. Ninth in Virginia, and (2) the heightened fears Program, Legal Street surrounding the 2020 decennial census in Aid Justice Center Richmond, VA Virginia. 23219 (804) 786- 1068 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 151 of 164 Monica Contact The witness has knowledge of (1) the Sarmiento, through impact of the citizenship question on Executive counsel: community members’ willingness to Director, Virginia participate in the decennial census process Coalition for 202 N. Ninth in Virginia, and (2) the heightened fears Immigrant Rights Street surrounding the 2020 decennial census in Richmond, VA Virginia. 23219 (804) 786- 1068 Stephen Duke Contact The witness has knowledge of the impact Storen, State through of decennial census population counts on Commissioner, counsel: state/local funding and budgets in state Virginia social services programs. Department of 202 N. Ninth Social Services Street Richmond, VA 23219 (804) 786- 1068 II.",
"Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information in Plaintiff Commonwealth of Virginia’s possession, custody, or control that may be used by Plaintiff Commonwealth of Virginia to support its claims are described as follows. All such documents are or will be at a central repository administered by the New York Attorney General’s Office. Plaintiff Commonwealth of Virginia expressly reserves its right to supplement this disclosure: Document Description Documents regarding demography of hard to count populations in Virginia, and areas particularly vulnerable to undercounting. Documents regarding the impact of decennial census population counts on state or local funding and budgets in Virginia. Documents regarding the use of federal funds in state health programs and medical services in Virginia. 7 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 152 of 164 Documents regarding the use of federal funds in public education programs and services in Virginia. Documents regarding the use of federal funds in state social services programs and services in Virginia.",
"Documents regarding the use of federal funds in transportation programs and services in Virginia. Documents regarding the use of federal funds in workforce development programs and services in Virginia. Documents regarding the redistricting process in Virginia. Documents regarding community members’ willingness to participate in the decennial census process in Virginia. Documents regarding heightened fears surrounding the 2020 decennial census in Virginia. Documents regarding outreach efforts conducted by the Census Bureau in Virginia. III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. 8 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 153 of 164 V. Fed.",
"R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 23rd day of July, 2018. MARK R. HERRING Attorney General of the Commonwealth of Virginia /s/ Matthew R. McGuire Matthew R. McGuire Deputy Solicitor General Office of the Attorney General of Virginia 202 North 9th Street Richmond, Virginia 23219 (804) 786-7773 MMcGuire@oag.state.va.us 9 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 154 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff State of Vermont, by its attorney, Thomas J. Donovan, Jr, Attorney General of the State of Vermont, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Plaintiff State of Vermont.",
"They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures. 2. Plaintiff State of Vermont reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Plaintiff State of Vermont hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Plaintiff makes no representations 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 155 of 164 or concessions regarding the relevancy or appropriateness of any particular documents or types of documents. 4. Plaintiff State of Vermont’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude the State from obtaining discovery of individuals not presently identified.",
"Plaintiff incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Plaintiff State of Vermont’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Plaintiff reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures Plaintiff is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Plaintiff waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges.",
"INITIAL DISCLOSURES I. Fed R. Civ. P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Vermont may use to support the Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff expressly reserves the right to supplement this disclosure: 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 156 of 164 Name Contact Information Subjects of Discoverable Information John Adams, Director, Julio A. Thompson The witness has knowledge of Vermont Center for Assistant Attorney General (1) methods for population Geographic Information Office of the Vermont counting; (2) challenges in Attorney General counting historically 109 State Street underrepresented populations; Montpelier, Vermont 05609 and (3) financial impacts of (802) 828-3171 undercounting on Vermont julio.thompson@vermont.gov Medicaid and other federal funding.",
"II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: The documents and electronically stored information (collectively, “Documents”) in Plaintiff State of Vermont’s possession, custody, or control that may be used by the State to support its claims are described as follows. Plaintiff expressly reserves its right to supplement this disclosure: Document Description Document Location Reamer, Counting for Dollars This document is at a central repository administered by 2020: The Role of the Decennial the New York Attorney General’s Office. Census in the Geographic Distribution of Federal Funds (March 18, 2018) Vermont Center for Geographic This document is at a central repository administered by Information, High Cost of a Low the New York Attorney General’s Office Count: Census 2020, Medicaid Payments to States, and Why Every Person Counts 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 157 of 164 III.",
"Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Plaintiff State of Vermont will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. DATED this 17th day of July 2018. STATE OF VERMONT THOMAS J. DONOVAN, JR. ATTORNEY GENERAL By: /s Julio A. Thompson_________ Benjamin D. Battles Solicitor General Julio A. Thompson Assistant Attorney General Civil Rights Unit Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-3171 julio.thompson@vermont.gov 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 158 of 164 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT INITIAL DISCLOSURES OF OF COMMERCE, et al., PLAINTIFF STATE OF WASHINGTON Defendants. Pursuant to Fed R. Civ. P. 26(a)(1), Plaintiff the State of Washington, by its attorney, Assistant Attorney General Laura K. Clinton, makes the following Initial Disclosures. INTRODUCTION 1. These Initial Disclosures are based upon information presently known to Washington. They are made without prejudice to producing during discovery or at trial information, documents, or data that are (a) subsequently discovered or determined to be relevant for any purpose, or (b) produced as a result of ongoing investigations, or (c) subsequently determined to have been omitted from these disclosures.",
"2. Washington reserves the right at any time to revise and/or supplement these Initial Disclosures. 3. Washington hereby expressly reserves all objections to the use for any purpose of these Initial Disclosures or any of the information and documents referenced herein in this case. By referring to documents in the Initial Disclosures, Washington makes no representations or concessions regarding the relevance or appropriateness of any particular documents or types of documents. 1 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 159 of 164 4. Washington’s identification of individuals pursuant to Rule 26(a)(1)(A)(i) is not intended to preclude Plaintiff from obtaining discovery of individuals not presently identified.",
"Washington incorporates all individuals identified by all other parties in Plaintiff’s Initial Disclosures and reserves the right to depose, and to rely upon the testimony of, all such individuals in support of its claims. 5. Washington’s identification or production of documents pursuant to Rule 26(a)(1)(A)(ii) is limited to those documents within its possession, custody or control. Washington reserves the right to use all documents produced by any party or non-party to this action. With these Initial Disclosures, Washington is not identifying documents protected from disclosure by the attorney-client, work product or other applicable privileges. Nor does Washington waive the right to object to Defendants’ discovery requests on any basis, including, but not limited to, relevancy, over-breadth, and all applicable privileges. INITIAL DISCLOSURES I. Fed R. Civ.",
"P. 26(a)(1)(A)(i) disclosures: The below listed persons are likely to have discoverable information that Plaintiff State of Washington may use to support Plaintiff’s claims as detailed in the First Amended Complaint. Plaintiff State of Washington expressly reserves the right to supplement this disclosure: Name Contact Information Subjects of Discoverable Information Mark Baldwin c/o Laura Clinton The witness has knowledge of Assistant Director of Assistant Attorney General Washington’s planning and Forecasting and Research, 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Office of Financial Seattle WA 98104 Census, potential financial Management impacts to the State of Washington arising from an inaccurate count, and related issues. 2 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 160 of 164 Name Contact Information Subjects of Discoverable Information Yi Zhao, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues.",
"Erica Gardner, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues. Mike Mohrman, Office of c/o Laura Clinton The witness has knowledge of Financial Management Assistant Attorney General Washington’s planning and 800 Fifth Avenue, Suite 2000 outreach regarding the 2020 Seattle WA 98104 Census, potential financial impacts to the State of Washington arising from an inaccurate count, and related issues.",
"Records custodian, Office c/o Laura Clinton The witness(es) have of Financial Management Assistant Attorney General knowledge sufficient to 800 Fifth Avenue, Suite 2000 identify and authenticate Seattle WA 98104 Washington’s records concerning the decennial Census and related issues Robert Chang c/o Laura Clinton The witness has knowledge Seattle University School Assistant Attorney General regarding the history of the of Law 800 Fifth Avenue, Suite 2000 Census Bureau’s past breaches Seattle WA 98104 of trust where Census information was used to harm individuals and communities, and the reasonable fear or concern that respondents might have when facing the citizenship question now. 3 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 161 of 164 Name Contact Information Subjects of Discoverable Information Laura Pierce c/o Laura Clinton The witness has knowledge of Washington Nonprofits Assistant Attorney General the concerns that 800 Fifth Avenue, Suite 2000 many nonprofit Seattle WA 98104 organizations have about the impact of the citizenship question.",
"Nonprofits working with hard to count populations are concerned that adding the citizenship question instills fear and makes those communities harder to count because they are likely to voluntarily opt out of the Census. The witness has knowledge of the impact an undercount would have on how funds for services are distributed and on the data available for nonprofits to target their services. David Streeter c/o Laura Clinton The witness has knowledge of Washington Nonprofits Assistant Attorney General the concerns that 800 Fifth Avenue, Suite 2000 many nonprofit Seattle WA 98104 organizations have about the impact of the citizenship question.",
"Nonprofits working with hard to count populations are concerned that adding the citizenship question instills fear and makes those communities harder to count because they are likely to voluntarily opt out of the Census. The witness has knowledge of the impact an undercount would have on how funds for services are distributed and on the data available for nonprofits to target their services. Laura Armstrong c/o Laura Clinton The witness has knowledge Executive Director Assistant Attorney General of already existing barriers La Casa Hogar 800 Fifth Avenue, Suite 2000 facing immigrant, low-income, Seattle WA 98104 Limited English Proficient 4 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 162 of 164 Name Contact Information Subjects of Discoverable Information residents (\"hard-to-count\" populations) throughout Washington state’s Yakima Valley in participating in the Census. The witness has further knowledge as to how the citizenship question will worsen those existing barriers for aforementioned community members’ participation in the decennial Census process. The witness has knowledge of immigrant families' heightened fears surrounding government institutions, and understands this as one of the already existing barriers that is being worsened because of the citizenship question. The witness has knowledge regarding community education and awareness efforts regarding the Census in the Yakima Valley region. The witness represents an organization with knowledge and experience working with immigrant families and agricultural workers throughout the region for over two decades. Linda Moore c/o Laura Clinton The witness has knowledge of CEO|President Assistant Attorney General the impact of the citizenship Yakima Valley 800 Fifth Avenue, Suite 2000 question and the Community Foundation Seattle WA 98104 disproportionate impact of funding and services to low income and people of color and children.",
"The witness has knowledge of the impact of the citizenship questions on “mixed households” where children are citizens and others in the household, including 5 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 163 of 164 Name Contact Information Subjects of Discoverable Information their parents are not which also impacts the count of children. The witness has knowledge of the demographics of Yakima County. II. Fed R. Civ. P. 26(a)(1)(A)(ii) disclosures: All materials requested in discovery or that Washington intends to use at trial are described below. Washington expressly reserves its right to supplement this disclosure: Document Description Document Location Documents concerning the 2020 Census and mitigating Office of Financial Management, non-response in the State of Washington. Washington Nonprofits – These documents will be uploaded to the central repository administered by the New York Attorney General’s Office.",
"III. Fed R. Civ. P. 26(a)(1)(A)(iii) disclosures – Computation of Damages: Not applicable. IV. Fed R. Civ. P. 26(a)(1)(A)(iv) disclosures – Insurance Statements: Not applicable. V. Fed. R. Civ. P. 26(a)(2)(A) – Expert Testimony: Washington will provide disclosures of expert testimony as required by Rule 26(a)(2) on the schedule directed by the Court and as required by Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. 6 Case 1:18-cv-02921-JMF Document 462-3 Filed 11/01/18 Page 164 of 164 DATED this 16th day of July, 2018. ROBERT W. FERGUSON Attorney General of the State of Washington /s/ Laura K. Clinton Laura K. Clinton Assistant Attorney General Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 LauraC5@atg.wa.gov (206) 233-3383 Peter Gonick, Deputy Solicitor General Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 peterg@atg.wa.gov Tel. (360) 753-6245 7"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/44442113/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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| https://www.courtlistener.com/api/rest/v3/recap-documents/63373207/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office
Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov
In re Application of RIIHIMAA, Ari Application No. 16/300,669 Filed: 12 Nov 2018 For: CHAMBER FOR GROWING INVERTEBRATES
: : : DECISION ON PETITION : : :
This is a decision on the petition under the unintentional provisions of 37 CFR 1.137(a), filed December 28, 2021, to revive the above-identified application.
There is no indication that the petition is signed by a registered attorney or patent agent of record. However, in accordance with 37 CFR 1.34, the signature of Jacob Eisenberg appearing on the petition shall constitute a representation to the United States Patent and Trademark Office that he is authorized to represent the particular party on whose behalf he acts.
The petition is GRANTED.
The application became abandoned for failure to timely pay the issue fee in response to the Notice of Allowance and Fee(s) Due (Notice) mailed on July 21, 2021, which set a statutory period for reply of three months. Accordingly, the application became abandoned on October 22, 2021. The Office mailed a Notice of Abandonment on November 5, 2021.
The petition satisfies the requirements of 37 CFR 1.137(a) in that the petitioner has supplied (1) the issue fee in the amount of $600.00; (2) the petition fee of $1050.00; and (3) a proper statement of unintentional delay.
Telephone inquiries concerning this decision should be directed to Paula Britton at 571-272-1556. All other inquiries concerning the examination or status of the application is accessible in the PAIR system at http://portal.uspto.gov/.
/JOANNE L BURKE/Lead Paralegal Specialist, OPET | 2022-03-06T15:29:42 | [
"PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov In re Application of RIIHIMAA, Ari Application No. 16/300,669 Filed: 12 Nov 2018 For: CHAMBER FOR GROWING INVERTEBRATES : : : DECISION ON PETITION : : : This is a decision on the petition under the unintentional provisions of 37 CFR 1.137(a), filed December 28, 2021, to revive the above-identified application. There is no indication that the petition is signed by a registered attorney or patent agent of record. However, in accordance with 37 CFR 1.34, the signature of Jacob Eisenberg appearing on the petition shall constitute a representation to the United States Patent and Trademark Office that he is authorized to represent the particular party on whose behalf he acts. The petition is GRANTED.",
"The application became abandoned for failure to timely pay the issue fee in response to the Notice of Allowance and Fee(s) Due (Notice) mailed on July 21, 2021, which set a statutory period for reply of three months. Accordingly, the application became abandoned on October 22, 2021. The Office mailed a Notice of Abandonment on November 5, 2021. The petition satisfies the requirements of 37 CFR 1.137(a) in that the petitioner has supplied (1) the issue fee in the amount of $600.00; (2) the petition fee of $1050.00; and (3) a proper statement of unintentional delay. Telephone inquiries concerning this decision should be directed to Paula Britton at 571-272-1556. All other inquiries concerning the examination or status of the application is accessible in the PAIR system at http://portal.uspto.gov/. /JOANNE L BURKE/Lead Paralegal Specialist, OPET"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-06.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
*352OPINION PER CURIAM. Gregory Bonaparte, a pro se inmate, appeals the order of the District Court (1) granting summary judgment for Appellants on eleven counts for failure to exhaust administrative remedies, and (2) dismissing the remaining two counts of his complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceedings. I. In November 2007, Bonaparte, then a prisoner at Federal Correctional Institution — Loretto (“Loretto”) in Pennsylvania, filed a Bivens action in the District Court against seven Loretto prison officials. Bonaparte’s complaint set forth more than 100 paragraphs of factual allegations and thirteen counts of constitutional violations. Bonaparte claimed that in retaliation for filing grievance forms, defendants reassigned him to a degrading job, filed false incident reports, failed to timely file his administrative appeal, terminated his job, and segregated him in confinement. He claimed that the defendants violated his Due Process and Equal Protection Rights, as well as his rights under the First Amendment. Bonaparte also raised general claims of racial harassment, alleging that the above actions were never imposed on white inmates who filed grievances against Defendant Beck. Defendants moved to dismiss Bonaparte’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The matter was referred to a Magistrate Judge who recommended that the court, sua sponte, convert defendants’ Rule 12(b)(6) motion to dismiss into a motion for summary judgment. In April 2009, the Magistrate Judge submitted a Report and Recommendation, recommending that the court grant summary judgment for defendants on eleven counts for failing to exhaust administrative remedies and dismiss the remaining two counts for failing to state a claim under 28 U.S.C. § 1915(e)(2)(B). By order entered May 27, 2009, the District Court adopted the report and recommendation, dismissing Bonaparte’s claims against all defendants. The District Court received Bonaparte’s objections to the Magistrate Judge’s Report after issuing the order. On Bonaparte’s motion, the court reconsidered the matter de novo on June 19, 2009, and reached the same result, vacating and reinstating the May 27, 2009 order. Bonaparte now appeals from the District Court’s order. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s entry of summary judgment and dismissal for failure to state a claim. See Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.2009); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). We may affirm on any grounds supported by the record. Id. Defendants brought a motion to dismiss, but referred to matters outside the pleadings, and thus, the District Court partially treated their motion as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d). A district court must provide notice of its intention to convert a motion to dismiss and allow a plaintiff a “reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.1989). The failure to give adequate notice does not, however, require automatic reversal; it *353may be excused if the failure was a “harmless error.” Id. at 342. To the extent that the District Court may have failed to give Bonaparte adequate opportunity to respond to its conversion, we conclude that any such error was harmless, as Bonaparte concedes that he did not properly exhaust administrative remedies and abandons all claims against all Defendants other than Defendant Beck. (See Appellant Br., p. 2, n. 1.) The District Court dismissed Bonaparte’s remaining two claims — retaliation claims the Defendants concede were exhausted — for failure to state a claim pursuant to 28 U.S.C. § 1915(e).1 (See Report, p. 1.) When reviewing a complaint dismissed under § 1915, this Court applies the same standard provided in Rule 12(b)(6). See Tourscher, 184 F.3d at 240. In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A prisoner bringing a retaliation claim must show that: (1) the conduct that triggered the alleged retaliation was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) there is “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000)). The District Court concluded that Bonaparte did not meet the first prong of this test because the grievance he filed against Defendant Beck, in which he asked for a transfer, was not constitutionally protected conduct. (See Report, p. 7.) Having carefully reviewed the record and the parties’ submissions, we conclude that the facts that Bonaparte alleged were sufficient to state at least the first two prongs of a claim of retaliation, especially given that Bonaparte is proceeding pro se. See Alston v. Parker, 363 F.3d 229, 234 (3d Cir.2004) (stating that courts should construe pro se complaints liberally). Bonaparte’s complaint specifically alleges that he filed a grievance requesting a transfer to another cable line because his supervisor “was disrespectful when communicating with him” and because she “did not favor him leaving his job to go and prepare his legal materials.” (See Complaint, p. 3.) Bonaparte further alleged that in retaliation for filing the grievances, his supervisor filed a false incident report against him. (See Complaint, p. 8.) Unlike the *354Magistrate Judge, we believe these allegations are sufficient to meet the pleading requirements for the first and second prongs of the Rauser test. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003) (holding that pro se prisoner’s allegations that he was falsely charged with misconduct in retaliation for filing a complaint against a prison officer stated claim for retaliation in violation of the First Amendment). The Magistrate Judge did not make a determination as to whether Bonaparte met the third prong of the Rauser test, and we will remand for such a determination. If, on remand, the District Court determines that the facts alleged in the complaint are insufficient to meet the third prong of a retaliation claim, Bonaparte should be provided an opportunity to file an amended complaint. An indigent plaintiff who has filed a complaint subject to dismissal under 28 U.S.C. § 1915 should be given an opportunity to file an amended complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir.2002). III. In light of the above, we will vacate the District Court’s order dismissing Counts I and II for failure to state a claim, and we will remand for further proceedings. We will affirm the District Court’s order granting summary judgment as to Bonaparte’s remaining claims for failure to exhaust administrative remedies.
. The Government argues that the District Court dismissed the remaining two claims under a summary judgment standard. However, the Magistrate Judge’s Report, which was adopted by the District Court, recommends dismissing Counts I and II for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (See Report, p. 1.) To the extent that Bonaparte argues that the Magistrate Judge lacked authority to issue a Report and Recommendation, a district judge may authorize a magistrate judge to prepare findings and recommendations on dispositive matters. See 28 U.S.C. § 636(b)(1); N.L.R.B. v. Frazier, 966 F.2d 812, 816 (3d Cir.1992). | 11-05-2022 | [
"*352OPINION PER CURIAM. Gregory Bonaparte, a pro se inmate, appeals the order of the District Court (1) granting summary judgment for Appellants on eleven counts for failure to exhaust administrative remedies, and (2) dismissing the remaining two counts of his complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceedings. I.",
"In November 2007, Bonaparte, then a prisoner at Federal Correctional Institution — Loretto (“Loretto”) in Pennsylvania, filed a Bivens action in the District Court against seven Loretto prison officials. Bonaparte’s complaint set forth more than 100 paragraphs of factual allegations and thirteen counts of constitutional violations. Bonaparte claimed that in retaliation for filing grievance forms, defendants reassigned him to a degrading job, filed false incident reports, failed to timely file his administrative appeal, terminated his job, and segregated him in confinement.",
"He claimed that the defendants violated his Due Process and Equal Protection Rights, as well as his rights under the First Amendment. Bonaparte also raised general claims of racial harassment, alleging that the above actions were never imposed on white inmates who filed grievances against Defendant Beck. Defendants moved to dismiss Bonaparte’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The matter was referred to a Magistrate Judge who recommended that the court, sua sponte, convert defendants’ Rule 12(b)(6) motion to dismiss into a motion for summary judgment. In April 2009, the Magistrate Judge submitted a Report and Recommendation, recommending that the court grant summary judgment for defendants on eleven counts for failing to exhaust administrative remedies and dismiss the remaining two counts for failing to state a claim under 28 U.S.C. § 1915(e)(2)(B). By order entered May 27, 2009, the District Court adopted the report and recommendation, dismissing Bonaparte’s claims against all defendants.",
"The District Court received Bonaparte’s objections to the Magistrate Judge’s Report after issuing the order. On Bonaparte’s motion, the court reconsidered the matter de novo on June 19, 2009, and reached the same result, vacating and reinstating the May 27, 2009 order. Bonaparte now appeals from the District Court’s order. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s entry of summary judgment and dismissal for failure to state a claim. See Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.2009); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999).",
"We may affirm on any grounds supported by the record. Id. Defendants brought a motion to dismiss, but referred to matters outside the pleadings, and thus, the District Court partially treated their motion as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d). A district court must provide notice of its intention to convert a motion to dismiss and allow a plaintiff a “reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P.",
"12(d); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.1989). The failure to give adequate notice does not, however, require automatic reversal; it *353may be excused if the failure was a “harmless error.” Id. at 342. To the extent that the District Court may have failed to give Bonaparte adequate opportunity to respond to its conversion, we conclude that any such error was harmless, as Bonaparte concedes that he did not properly exhaust administrative remedies and abandons all claims against all Defendants other than Defendant Beck. (See Appellant Br., p. 2, n. 1.)",
"The District Court dismissed Bonaparte’s remaining two claims — retaliation claims the Defendants concede were exhausted — for failure to state a claim pursuant to 28 U.S.C. § 1915(e).1 (See Report, p. 1.) When reviewing a complaint dismissed under § 1915, this Court applies the same standard provided in Rule 12(b)(6). See Tourscher, 184 F.3d at 240. In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl.",
"Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A prisoner bringing a retaliation claim must show that: (1) the conduct that triggered the alleged retaliation was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) there is “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000)). The District Court concluded that Bonaparte did not meet the first prong of this test because the grievance he filed against Defendant Beck, in which he asked for a transfer, was not constitutionally protected conduct. (See Report, p. 7.) Having carefully reviewed the record and the parties’ submissions, we conclude that the facts that Bonaparte alleged were sufficient to state at least the first two prongs of a claim of retaliation, especially given that Bonaparte is proceeding pro se. See Alston v. Parker, 363 F.3d 229, 234 (3d Cir.2004) (stating that courts should construe pro se complaints liberally). Bonaparte’s complaint specifically alleges that he filed a grievance requesting a transfer to another cable line because his supervisor “was disrespectful when communicating with him” and because she “did not favor him leaving his job to go and prepare his legal materials.” (See Complaint, p.",
"3.) Bonaparte further alleged that in retaliation for filing the grievances, his supervisor filed a false incident report against him. (See Complaint, p. 8.) Unlike the *354Magistrate Judge, we believe these allegations are sufficient to meet the pleading requirements for the first and second prongs of the Rauser test. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003) (holding that pro se prisoner’s allegations that he was falsely charged with misconduct in retaliation for filing a complaint against a prison officer stated claim for retaliation in violation of the First Amendment).",
"The Magistrate Judge did not make a determination as to whether Bonaparte met the third prong of the Rauser test, and we will remand for such a determination. If, on remand, the District Court determines that the facts alleged in the complaint are insufficient to meet the third prong of a retaliation claim, Bonaparte should be provided an opportunity to file an amended complaint. An indigent plaintiff who has filed a complaint subject to dismissal under 28 U.S.C. § 1915 should be given an opportunity to file an amended complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir.2002). III. In light of the above, we will vacate the District Court’s order dismissing Counts I and II for failure to state a claim, and we will remand for further proceedings. We will affirm the District Court’s order granting summary judgment as to Bonaparte’s remaining claims for failure to exhaust administrative remedies.",
". The Government argues that the District Court dismissed the remaining two claims under a summary judgment standard. However, the Magistrate Judge’s Report, which was adopted by the District Court, recommends dismissing Counts I and II for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (See Report, p. 1.) To the extent that Bonaparte argues that the Magistrate Judge lacked authority to issue a Report and Recommendation, a district judge may authorize a magistrate judge to prepare findings and recommendations on dispositive matters. See 28 U.S.C. § 636(b)(1); N.L.R.B. v. Frazier, 966 F.2d 812, 816 (3d Cir.1992)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8479220/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report: May 20, 2008 American National Bankshares Inc. (Exact name of registrant as specified in its charter) Virginia 0-12820 54-1284688 (State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 628 Main Street, Danville, VA 24541 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code 434-792-5111 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13a-4(c)) Item 8.01 Other Events On May 20, 2008, the Board of Directors declared a qaurterly cash dividend of $0.23 per share of common stock, payable on June 20, 2008, to shareholders on record June 6, 2008. Item 9.01 Financial Statements and Exhibits (d) Exhibit: 99.1News Release Signature Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: May 20, 2008 /s/ Neal A. Petrovich Senior Vice President and Chief Financial Officer | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report: May 20, 2008 American National Bankshares Inc. (Exact name of registrant as specified in its charter) Virginia 0-12820 54-1284688 (State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 628 Main Street, Danville, VA 24541 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code 434-792-5111 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13a-4(c)) Item 8.01 Other Events On May 20, 2008, the Board of Directors declared a qaurterly cash dividend of $0.23 per share of common stock, payable on June 20, 2008, to shareholders on record June 6, 2008. Item 9.01 Financial Statements and Exhibits (d) Exhibit: 99.1News Release Signature Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.",
"Date: May 20, 2008 /s/ Neal A. Petrovich Senior Vice President and Chief Financial 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 |
|
Pee Curiam. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Trenehard in the Supreme Court. For affirmance — The Chancellor, Chiee Justice, Swayze, Parker, Black, Katzenbacii, Williams, Gardner, Van Buskirk, JJ. 9. For reversal — None. | 10-16-2022 | [
"Pee Curiam. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Trenehard in the Supreme Court. For affirmance — The Chancellor, Chiee Justice, Swayze, Parker, Black, Katzenbacii, Williams, Gardner, Van Buskirk, JJ. 9. For reversal — None."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8273887/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: 17 y/o caught with weed Georgia Question:Hi, I was riding with my brother and got into an interstate crash. I had a small amount of marijuana (2 grams) on me, that I threw over the interstate gate right after the crash. my brother did not know what I threw neither did he know I had weed. We drove off because we were fine and called the cops to make a police report. The cops came and said that someone called 911 and said that someone threw something. They kept on asking what I threw but I wouldn't say, then they found it, and not wanting to get my brother in trouble for something he didn't know I had, I told them it was all mine. That didn't matter, as they still threw both of us in jail. I had no idea that a 17 year old is considered an adult in Georgia, what will likely be my consequences? Possession of marijuana under 1 oz, we have already had to pay thousands over this.
I was not the driver. Answer #1: >The cops came and said that someone called 911 and said that someone threw something. They kept on asking what I threw but I wouldn't say, then they found it, and not wanting to get my brother in trouble for something he didn't know I had, I told them it was all mine.
You got conned. They didn't find shit. | 12-26-2015 | [
"Title: 17 y/o caught with weed Georgia Question:Hi, I was riding with my brother and got into an interstate crash. I had a small amount of marijuana (2 grams) on me, that I threw over the interstate gate right after the crash. my brother did not know what I threw neither did he know I had weed. We drove off because we were fine and called the cops to make a police report. The cops came and said that someone called 911 and said that someone threw something. They kept on asking what I threw but I wouldn't say, then they found it, and not wanting to get my brother in trouble for something he didn't know I had, I told them it was all mine.",
"That didn't matter, as they still threw both of us in jail. I had no idea that a 17 year old is considered an adult in Georgia, what will likely be my consequences? Possession of marijuana under 1 oz, we have already had to pay thousands over this. I was not the driver. Answer #1: >The cops came and said that someone called 911 and said that someone threw something. They kept on asking what I threw but I wouldn't say, then they found it, and not wanting to get my brother in trouble for something he didn't know I had, I told them it was all mine. You got conned. They didn't find shit."
]
| https://www.reddit.com/r/legaladvice/comments/3ybcrt/17_yo_caught_with_weed_georgia/ | 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 .
Election/Restrictions Applicant’s election without traverse of Group I, claims 1, 2, 4, 6, 5, 11, 24, 25, 29-31, 33, and 34 in the reply filed on 05/19/2022 is acknowledged. Claims 36, 37, 39, 41, 43, 46, and 50 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/19/2022.
Claim Interpretation Regarding limitations recited in claims 1, 2, 4, 6, 5, 11, 24, 25, 29-31, 33, and 34, which are directed to a manner of operating the disclosed microfluidic device, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” 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 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. 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. Claim(s) 1, 2, 4, 6, 5, 11, 24, 25, 29-31, and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ghassemi (Multi-Constriction Microfluidic Sensors for Single-Cell Biophysical Characterization), in view of Kotesa et al. (Real Time Measurement of Deformability Index for Electro-Mechanodiagnostics). Regarding claim 1, Ghassemi discloses a microfluidic device for cell mechanophenotyping (Figure 3.6), the microfluidic device comprising: an inlet (see: top channel which branches from sample inlet); an outlet (see: top channel which branches from sample outlet); a first channel in fluid communication with the inlet and the outlet (see: one of the top two parallel channels), the first channel comprising: a first upstream zone having a first cross-sectional area in a lateral direction perpendicular to a direction of fluid flow through the first channel (see: each of the top two parallel channels have a portion on the left side coupled to the branched sample inlet having its own width); a first downstream zone having a second cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the right side coupled to the branched sample outlet having its own width); and a first constriction zone positioned between the first upstream zone and the first downstream zone and having a third cross-sectional area in the lateral direction, the third cross-sectional area being less than each of the first cross-sectional area and the second cross-sectional area (see: each of the top two parallel channels have a central portion comprising a constriction channel having its own width which is narrower than the rest of the parallel channel); a second channel arranged in parallel with the first channel and in fluid communication with the inlet and the outlet (see: another of the top two parallel channels), the second channel comprising: a second upstream zone having a fourth cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the left side coupled to the branched sample inlet having its own width); a second downstream zone having a fifth cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the right side coupled to the branched sample outlet having its own width); and a second constriction zone positioned between the second upstream zone and the second downstream zone and having a sixth cross-sectional area in the lateral direction, the sixth cross-sectional area being less than each of the fourth cross-sectional area and the fifth cross-sectional area (see: each of the top two parallel channels have a central portion comprising a constriction channel having its own width which is narrower than the rest of the parallel channel); a sensor pair positioned along the first channel and the second channel (see: pair of gold electrodes extending across each of the top two parallel channels), the sensor pair comprising: an entry sensor positioned along the first upstream zone and the second upstream zone and configured to detect a cell flowing through the first upstream zone and the second upstream zone (see: gold electrode on the left side, closer to the sample inlet); and an exit sensor positioned along the first downstream zone and the second downstream zone and configured to detect a cell flowing through the first downstream zone and the second downstream zone (see: gold electrode on the right side, closer to the sample outlet). Ghassemi does not explicitly disclose each of the channels having their own discrete sensor pair, each sensor comprising an entry sensor and exit sensor. Kotesa teaches an analogous mechano-phenotyping microfluidic platform comprising a plurality of sensor pairs (Fig. 1, Fig. 3). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the device disclosed by Ghassemi with additional sensor electrodes such that each of the parallel channels comprises their own discrete sensor pair since mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 124 USPQ 378, 380 (CCPA 1960). Further, 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. Bemis Co., 193 USPQ 8. Regarding claim 2, modified Ghassemi further discloses the first entry sensor comprises a first plurality of electrodes having a first electrode configuration, wherein the first exit sensor comprises a second plurality of electrodes having the first electrode configuration, wherein the second entry sensor comprises a third plurality of electrodes having a second electrode configuration different from the first electrode configuration, and wherein the second exit sensor comprises a fourth plurality of electrodes having the second electrode configuration (see: Rejection of Claim 1 above; the modification of Ghassemi, in view of Kotesa would have resulted in a device having four parallel channels, each with a plurality of pairs of electrodes). Regarding claim 4, modified Ghassemi further discloses the first entry sensor is further configured to generate a first entry sensor waveform in response to detecting the first cell flowing through the first upstream zone (Kotesa: Fig. 3, see: S1), wherein the first exit sensor is further configured to generate a first exit sensor waveform in response to detecting the first cell flowing through the first downstream zone (Kotesa: Fig. 3, see: S2), wherein the first entry sensor waveform comprises a first sensor code corresponding to the first channel, wherein the first exit sensor waveform comprises the first sensor code (Since the device disclosed by modified Ghassemi is capable of applying discrete input signals into each of the analogous entry sensors and exit sensors, it is the position of the Examiner that the prior art device is fully capable of performing the instantly recited functions), wherein the second entry sensor is further configured to generate a second entry sensor waveform in response to detecting the second cell flowing through the second upstream zone, wherein the second exit sensor is further configured to generate a second exit sensor waveform in response to detecting the second cell flowing through the second downstream zone, Page4 of11 wherein the second entry sensor waveform comprises a second sensor code corresponding to the second channel, and wherein the second exit sensor waveform comprises the second sensor code (see: Rejection of Claim 1 above; the modification of Ghassemi, in view of Kotesa would have resulted in a device having four parallel channels, each with a plurality of pairs of electrodes capable of applying discrete input signals into each of the analogous entry sensors and exit sensors). Regarding claim 6, modified Ghassemi further discloses a lock-in amplifier configured to generate an excitation signal for exciting the first sensor pair and the second sensor pair, wherein the lock-in amplifier is further configured to: receive an output signal comprising the first entry sensor waveform, the first exit sensor waveform, the second entry sensor waveform, and the second exit sensor waveform; and demodulate the output signal (Kotesa: Fig. 3, see: Lock-in Amplifier which is fully capable of performing the instantly recited functions as it is coupled to each of the analogous entry sensors and exit sensors). Regarding claim 8, modified Ghassemi further discloses a processing unit configured to: receive the demodulated output signal; determine, based at least in part on the demodulated output signal, a first cell transit time for the first cell; and determine, based at least in part on the demodulated output signal, a second cell transit time for the second cell (Kotesa: Fig. 3, pg. 191/III. EXPERIMENTS AND RESULTS, see: Data Acquisition and MATLAB custom signal processing algorithms for impedance and transit time measurements). Regarding claim 11, modified Ghassemi further discloses the processing unit is further configured to: determine, based at least in part on the demodulated output signal, a first cell size of the first cell; and determine, based at least in part on the demodulated output signal, a second cell size of the second cell (Kotesa: Fig. 4, see: measure the cell size). Regarding claim 24, modified Ghassemi further discloses a first plurality of protrusions extending into the first constriction zone; and a second plurality of protrusions extending into the second constriction zone (Ghassemi: Fig. 3.6, see: each of the parallel channel’s analogous constriction zones comprise two areas wherein a pair of protrusions extend into the channel and narrows the width). Regarding claim 25, modified Ghassemi further discloses a substrate and a microfluidic layer attached to one another, wherein the first sensor pair and the second sensor pair are positioned on the substrate, and wherein the first channel and the second channel are at least partially defined in the microfluidic layer (Ghassemi: Fig. 3.6, see: Glass layer comprising the electrodes and PDMS layer comprising the microfluidic channels). Regarding claim 29, modified Ghassemi further discloses a feed channel extending from the inlet and in fluid communication with the first channel and the second channel (Ghassemi: Fig. 3.6, see: bottom channel which branches from sample inlet). Regarding claim 30, modified Ghassemi further discloses the feed channel comprises: a third upstream zone having a seventh cross-sectional area in the lateral direction, the seventh cross-sectional area being greater than each of the first cross-sectional area and the fourth cross-sectional area (Ghassemi: Fig. 3.6, see: bottom channel which branches from sample inlet and is wider than the width of either of the portions on the left sides of each of the top two parallel channels); a third downstream zone having an eighth cross-sectional area in the lateral direction (Ghassemi: Fig. 3.6, see: portion of bottom channel which branches from sample outlet and has its own width); and an expansion zone positioned between the third upstream zone and the third downstream zone and having a ninth cross-sectional area in the lateral direction, the ninth cross-sectional area being greater than each of the seventh cross-sectional area and the eighth cross-sectional area (Ghassemi: Fig. 3.6, see: central portion of the bottom channel which comprises a pair of relaxation regions, the width between them being wider than the width of the portions of the bottom channel branching from the sample inlet and sample outlet). Regarding claim 31, modified Ghassemi further discloses the feed channel comprises: a third upstream zone having a linear shape (Ghassemi: Fig. 3.6, see: linear portion of bottom channel which branches from sample inlet); a third downstream zone having a linear shape (Ghassemi: Fig. 3.6, see: linear portion of bottom channel which branches from sample outlet); and an inertial focuser positioned between the third upstream zone and the third downstream zone and having a contoured shape configured to inhibit cell overlap in the lateral direction (Ghassemi: Fig. 3.6, see: central portion of the bottom channel which comprises a plurality of constriction channels). Regarding claim 33, modified Ghassemi further discloses a plurality of protrusions extending vertically into the feed channel and configured to inhibit cell overlap in a vertical direction (Ghassemi: Fig. 3.6, see: each of the parallel channel’s analogous constriction zones comprise two areas wherein a pair of protrusions extend into the channel and narrows the width).
Claim(s) 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ghassemi (Multi-Constriction Microfluidic Sensors for Single-Cell Biophysical Characterization), in view of Kotesa et al. (Real Time Measurement of Deformability Index for Electro-Mechanodiagnostics), as applied to claims 1 and 29 above, in further view of Goedecke et al. (Easy and Accurate Mechano-profiling on Micropost Arrays). Regarding claim 34, modified Ghassemi does not explicitly disclose a plurality of micropillars extending into the feed channel and configured to direct cells to one of the first channel or the second channel based on cell size. Goedecke teaches an analogous device configured for mechano-profiling of cancer cells comprising a micropost array comprising a plurality of integrated flexible microposts (Figure 9). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate a micropost array into the analogous feed channel in the device disclosed by modified Ghassemi, as taught by Goedecke, since such a modification would have amounted to applying a known mechano-profiling technique to a known mechano-phenotyping device ready for improvement to yield the predictable results and advantages as taught by Goedecke (Goedecke: pg. 1-3/Introduction).
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J EOM whose telephone number is (571)270-7075. The examiner can normally be reached Monday-Friday (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, Lyle Alexander can be reached on 5712721254. 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.
/ROBERT J EOM/ Primary Examiner, Art Unit 1797 | 2022-06-18T18:33:49 | [
"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 Applicant’s election without traverse of Group I, claims 1, 2, 4, 6, 5, 11, 24, 25, 29-31, 33, and 34 in the reply filed on 05/19/2022 is acknowledged. Claims 36, 37, 39, 41, 43, 46, and 50 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/19/2022. Claim Interpretation Regarding limitations recited in claims 1, 2, 4, 6, 5, 11, 24, 25, 29-31, 33, and 34, which are directed to a manner of operating the disclosed microfluidic device, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.",
"Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” 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 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. 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. Claim(s) 1, 2, 4, 6, 5, 11, 24, 25, 29-31, and 33 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Ghassemi (Multi-Constriction Microfluidic Sensors for Single-Cell Biophysical Characterization), in view of Kotesa et al. (Real Time Measurement of Deformability Index for Electro-Mechanodiagnostics).",
"Regarding claim 1, Ghassemi discloses a microfluidic device for cell mechanophenotyping (Figure 3.6), the microfluidic device comprising: an inlet (see: top channel which branches from sample inlet); an outlet (see: top channel which branches from sample outlet); a first channel in fluid communication with the inlet and the outlet (see: one of the top two parallel channels), the first channel comprising: a first upstream zone having a first cross-sectional area in a lateral direction perpendicular to a direction of fluid flow through the first channel (see: each of the top two parallel channels have a portion on the left side coupled to the branched sample inlet having its own width); a first downstream zone having a second cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the right side coupled to the branched sample outlet having its own width); and a first constriction zone positioned between the first upstream zone and the first downstream zone and having a third cross-sectional area in the lateral direction, the third cross-sectional area being less than each of the first cross-sectional area and the second cross-sectional area (see: each of the top two parallel channels have a central portion comprising a constriction channel having its own width which is narrower than the rest of the parallel channel); a second channel arranged in parallel with the first channel and in fluid communication with the inlet and the outlet (see: another of the top two parallel channels), the second channel comprising: a second upstream zone having a fourth cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the left side coupled to the branched sample inlet having its own width); a second downstream zone having a fifth cross-sectional area in the lateral direction (see: each of the top two parallel channels have a portion on the right side coupled to the branched sample outlet having its own width); and a second constriction zone positioned between the second upstream zone and the second downstream zone and having a sixth cross-sectional area in the lateral direction, the sixth cross-sectional area being less than each of the fourth cross-sectional area and the fifth cross-sectional area (see: each of the top two parallel channels have a central portion comprising a constriction channel having its own width which is narrower than the rest of the parallel channel); a sensor pair positioned along the first channel and the second channel (see: pair of gold electrodes extending across each of the top two parallel channels), the sensor pair comprising: an entry sensor positioned along the first upstream zone and the second upstream zone and configured to detect a cell flowing through the first upstream zone and the second upstream zone (see: gold electrode on the left side, closer to the sample inlet); and an exit sensor positioned along the first downstream zone and the second downstream zone and configured to detect a cell flowing through the first downstream zone and the second downstream zone (see: gold electrode on the right side, closer to the sample outlet).",
"Ghassemi does not explicitly disclose each of the channels having their own discrete sensor pair, each sensor comprising an entry sensor and exit sensor. Kotesa teaches an analogous mechano-phenotyping microfluidic platform comprising a plurality of sensor pairs (Fig. 1, Fig. 3). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the device disclosed by Ghassemi with additional sensor electrodes such that each of the parallel channels comprises their own discrete sensor pair since mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 124 USPQ 378, 380 (CCPA 1960). Further, 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. Bemis Co., 193 USPQ 8. Regarding claim 2, modified Ghassemi further discloses the first entry sensor comprises a first plurality of electrodes having a first electrode configuration, wherein the first exit sensor comprises a second plurality of electrodes having the first electrode configuration, wherein the second entry sensor comprises a third plurality of electrodes having a second electrode configuration different from the first electrode configuration, and wherein the second exit sensor comprises a fourth plurality of electrodes having the second electrode configuration (see: Rejection of Claim 1 above; the modification of Ghassemi, in view of Kotesa would have resulted in a device having four parallel channels, each with a plurality of pairs of electrodes). Regarding claim 4, modified Ghassemi further discloses the first entry sensor is further configured to generate a first entry sensor waveform in response to detecting the first cell flowing through the first upstream zone (Kotesa: Fig.",
"3, see: S1), wherein the first exit sensor is further configured to generate a first exit sensor waveform in response to detecting the first cell flowing through the first downstream zone (Kotesa: Fig. 3, see: S2), wherein the first entry sensor waveform comprises a first sensor code corresponding to the first channel, wherein the first exit sensor waveform comprises the first sensor code (Since the device disclosed by modified Ghassemi is capable of applying discrete input signals into each of the analogous entry sensors and exit sensors, it is the position of the Examiner that the prior art device is fully capable of performing the instantly recited functions), wherein the second entry sensor is further configured to generate a second entry sensor waveform in response to detecting the second cell flowing through the second upstream zone, wherein the second exit sensor is further configured to generate a second exit sensor waveform in response to detecting the second cell flowing through the second downstream zone, Page4 of11 wherein the second entry sensor waveform comprises a second sensor code corresponding to the second channel, and wherein the second exit sensor waveform comprises the second sensor code (see: Rejection of Claim 1 above; the modification of Ghassemi, in view of Kotesa would have resulted in a device having four parallel channels, each with a plurality of pairs of electrodes capable of applying discrete input signals into each of the analogous entry sensors and exit sensors). Regarding claim 6, modified Ghassemi further discloses a lock-in amplifier configured to generate an excitation signal for exciting the first sensor pair and the second sensor pair, wherein the lock-in amplifier is further configured to: receive an output signal comprising the first entry sensor waveform, the first exit sensor waveform, the second entry sensor waveform, and the second exit sensor waveform; and demodulate the output signal (Kotesa: Fig.",
"3, see: Lock-in Amplifier which is fully capable of performing the instantly recited functions as it is coupled to each of the analogous entry sensors and exit sensors). Regarding claim 8, modified Ghassemi further discloses a processing unit configured to: receive the demodulated output signal; determine, based at least in part on the demodulated output signal, a first cell transit time for the first cell; and determine, based at least in part on the demodulated output signal, a second cell transit time for the second cell (Kotesa: Fig. 3, pg. 191/III. EXPERIMENTS AND RESULTS, see: Data Acquisition and MATLAB custom signal processing algorithms for impedance and transit time measurements). Regarding claim 11, modified Ghassemi further discloses the processing unit is further configured to: determine, based at least in part on the demodulated output signal, a first cell size of the first cell; and determine, based at least in part on the demodulated output signal, a second cell size of the second cell (Kotesa: Fig. 4, see: measure the cell size).",
"Regarding claim 24, modified Ghassemi further discloses a first plurality of protrusions extending into the first constriction zone; and a second plurality of protrusions extending into the second constriction zone (Ghassemi: Fig. 3.6, see: each of the parallel channel’s analogous constriction zones comprise two areas wherein a pair of protrusions extend into the channel and narrows the width). Regarding claim 25, modified Ghassemi further discloses a substrate and a microfluidic layer attached to one another, wherein the first sensor pair and the second sensor pair are positioned on the substrate, and wherein the first channel and the second channel are at least partially defined in the microfluidic layer (Ghassemi: Fig.",
"3.6, see: Glass layer comprising the electrodes and PDMS layer comprising the microfluidic channels). Regarding claim 29, modified Ghassemi further discloses a feed channel extending from the inlet and in fluid communication with the first channel and the second channel (Ghassemi: Fig. 3.6, see: bottom channel which branches from sample inlet). Regarding claim 30, modified Ghassemi further discloses the feed channel comprises: a third upstream zone having a seventh cross-sectional area in the lateral direction, the seventh cross-sectional area being greater than each of the first cross-sectional area and the fourth cross-sectional area (Ghassemi: Fig. 3.6, see: bottom channel which branches from sample inlet and is wider than the width of either of the portions on the left sides of each of the top two parallel channels); a third downstream zone having an eighth cross-sectional area in the lateral direction (Ghassemi: Fig.",
"3.6, see: portion of bottom channel which branches from sample outlet and has its own width); and an expansion zone positioned between the third upstream zone and the third downstream zone and having a ninth cross-sectional area in the lateral direction, the ninth cross-sectional area being greater than each of the seventh cross-sectional area and the eighth cross-sectional area (Ghassemi: Fig. 3.6, see: central portion of the bottom channel which comprises a pair of relaxation regions, the width between them being wider than the width of the portions of the bottom channel branching from the sample inlet and sample outlet). Regarding claim 31, modified Ghassemi further discloses the feed channel comprises: a third upstream zone having a linear shape (Ghassemi: Fig.",
"3.6, see: linear portion of bottom channel which branches from sample inlet); a third downstream zone having a linear shape (Ghassemi: Fig. 3.6, see: linear portion of bottom channel which branches from sample outlet); and an inertial focuser positioned between the third upstream zone and the third downstream zone and having a contoured shape configured to inhibit cell overlap in the lateral direction (Ghassemi: Fig. 3.6, see: central portion of the bottom channel which comprises a plurality of constriction channels). Regarding claim 33, modified Ghassemi further discloses a plurality of protrusions extending vertically into the feed channel and configured to inhibit cell overlap in a vertical direction (Ghassemi: Fig. 3.6, see: each of the parallel channel’s analogous constriction zones comprise two areas wherein a pair of protrusions extend into the channel and narrows the width).",
"Claim(s) 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ghassemi (Multi-Constriction Microfluidic Sensors for Single-Cell Biophysical Characterization), in view of Kotesa et al. (Real Time Measurement of Deformability Index for Electro-Mechanodiagnostics), as applied to claims 1 and 29 above, in further view of Goedecke et al. (Easy and Accurate Mechano-profiling on Micropost Arrays). Regarding claim 34, modified Ghassemi does not explicitly disclose a plurality of micropillars extending into the feed channel and configured to direct cells to one of the first channel or the second channel based on cell size. Goedecke teaches an analogous device configured for mechano-profiling of cancer cells comprising a micropost array comprising a plurality of integrated flexible microposts (Figure 9). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate a micropost array into the analogous feed channel in the device disclosed by modified Ghassemi, as taught by Goedecke, since such a modification would have amounted to applying a known mechano-profiling technique to a known mechano-phenotyping device ready for improvement to yield the predictable results and advantages as taught by Goedecke (Goedecke: pg.",
"1-3/Introduction). Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J EOM whose telephone number is (571)270-7075. The examiner can normally be reached Monday-Friday (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, Lyle Alexander can be reached on 5712721254. 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. /ROBERT J EOM/ Primary Examiner, Art Unit 1797"
]
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U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________
No. 201600366 _________________________
UNITED STATES OF AMERICA Appellee v.
XAVIER J. RICHARDSON Corporal (E-4), U.S. Marine Corps Appellant _________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel David M. Jones, USMC. Convening Authority: Commanding General, 2d MAW, II Marine Expeditionary Force, Cherry Point, NC. Staff Judge Advocate’s Recommendation : Colonel John M. Henry, USMC. For Appellant: Lieutenant Rachel E. Weidemann, JAGC, USN. For Appellee: Brian K. Keller, Esq. _________________________
Decided 21 March 2017 _________________________
Before M ARKS , C AMPBELL , and F ULTON , Appellate Military Judges _________________________
After careful consideration of the record, submitted without assignment of error, we affirm the findings and sentence as approved by the convening authority. Art. 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c).
For the Court
R.H. TROIDL Clerk of Court | 03-23-2017 | [
"U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________ No. 201600366 _________________________ UNITED STATES OF AMERICA Appellee v. XAVIER J. RICHARDSON Corporal (E-4), U.S. Marine Corps Appellant _________________________ Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Lieutenant Colonel David M. Jones, USMC. Convening Authority: Commanding General, 2d MAW, II Marine Expeditionary Force, Cherry Point, NC. Staff Judge Advocate’s Recommendation : Colonel John M. Henry, USMC. For Appellant: Lieutenant Rachel E. Weidemann, JAGC, USN. For Appellee: Brian K. Keller, Esq. _________________________ Decided 21 March 2017 _________________________ Before M ARKS , C AMPBELL , and F ULTON , Appellate Military Judges _________________________ After careful consideration of the record, submitted without assignment of error, we affirm the findings and sentence as approved by the convening authority. Art. 66(c), Uniform Code of Military Justice, 10 U.S.C.",
"§ 866(c). For the Court R.H. TROIDL Clerk of Court"
]
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PER CURIAM: * Edward Thomas Vess appeals from the sentence imposed following his conviction for two counts of transporting illegal aliens within the United States by means of a motor vehicle. He is specifically challenging the special condition of his supervised *391release, which delegates to the probation officer the decision whether Vess should participate in a mental health treatment program. Citing United States v. Albro, 32 F.3d 173, 174 (5th Cir.1994), Vess argues that the district court committed plain error when it impermissibly delegated its Article III power to impose conditions of supervised release by giving the probation officer discretion to decide whether he should participate in a mental health treatment program. Vess’s argument is foreclosed by our circuit precedent, issued after his brief was filed in this case. United States v. Bishop, 603 F.3d 279 (5th Cir.2010)(holding that imposition of such a condition is not plain error). The judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 11-05-2022 | [
"PER CURIAM: * Edward Thomas Vess appeals from the sentence imposed following his conviction for two counts of transporting illegal aliens within the United States by means of a motor vehicle. He is specifically challenging the special condition of his supervised *391release, which delegates to the probation officer the decision whether Vess should participate in a mental health treatment program. Citing United States v. Albro, 32 F.3d 173, 174 (5th Cir.1994), Vess argues that the district court committed plain error when it impermissibly delegated its Article III power to impose conditions of supervised release by giving the probation officer discretion to decide whether he should participate in a mental health treatment program. Vess’s argument is foreclosed by our circuit precedent, issued after his brief was filed in this case. United States v. Bishop, 603 F.3d 279 (5th Cir.2010)(holding that imposition of such a condition is not plain error). The judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir.",
"R. 47.5.4."
]
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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 Allowance Claims 1-12 are allowed. The following is an examiner’s statement of reasons for allowance: Examiner finds applicant’s remarks on page 5 first paragraph, filed 12/09/2020 persuasive. 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 NAISHADH N DESAI whose telephone number is (571)270-3038. The examiner can normally be reached on 9-5. 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, Quyen Leung can be reached on 571-272-8188. 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.
NAISHADH N. DESAI Primary Examiner Art Unit 2834
/NAISHADH N DESAI/ Primary Examiner, Art Unit 2834 | 2021-03-01T14:36:17 | [
"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 Allowance Claims 1-12 are allowed. The following is an examiner’s statement of reasons for allowance: Examiner finds applicant’s remarks on page 5 first paragraph, filed 12/09/2020 persuasive. 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 NAISHADH N DESAI whose telephone number is (571)270-3038. The examiner can normally be reached on 9-5. 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, Quyen Leung can be reached on 571-272-8188. 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. NAISHADH N. DESAI Primary Examiner Art Unit 2834 /NAISHADH N DESAI/ Primary Examiner, Art Unit 2834"
]
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310 S.W.3d 424 (2010) Ex parte Yokamon Laneal HEARN, Applicant. No. AP-76,237. Court of Criminal Appeals of Texas. April 28, 2010. *426 Richard Burr, Houston & Naomi Terr, Houston, for Appellant. Craig Watson, D.A., Dallas, Jeffrey L. VanHorn, State's Attorney, Austin, for State.
OPINION JOHNSON, J., delivered the opinion for a unanimous Court. Applicant, Yokamon Laneal Hearn, was convicted of capital murder and sentenced to death. In this subsequent application for habeas corpus, applicant asserts that he is mentally retarded and, pursuant to the United States Supreme Court holding in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), constitutionally exempt from a death sentence. In our statutes and case law, "mental retardation" is defined by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. Ex parte Briseno, 135 S.W.3d 1, 7 n. 26 (Tex. Crim.App.2004) (citing AMERICAN ASSOCIATION OF MENTAL RETARDATION (AAMR), MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (9th ed. 1992)). See also AMERICAN ASSOCIATION ON MENTAL DEFICIENCY (AAMD), CLASSIFICATION IN MENTAL RETARDATION 1 (GROSSMAN ED. 1983). The issue before this court is whether alternative assessment measures can be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning. We hold that alternative assessment measures can not be substituted for full-scale IQ scores.
Procedural History In December 1998, applicant was convicted of capital murder and sentenced to death. This Court affirmed his conviction and sentence,[1] and the United States Supreme Court denied his petition for writ of certiorari.[2] While his appeal was pending in this Court, applicant filed his initial application for writ of habeas corpus in the 282nd District Court of Dallas County (state district court). That court recommended that all relief be denied. Ex parte Hearn, No. W98-46232-S(A) (282nd Dist. Ct., Dallas County, Aug. 1, 2001). Upon review of the record, this Court denied relief in an unpublished order. Ex parte Hearn, No. 50,116-01 (Tex.Crim.App. Nov. 14, 2001). Subsequently, applicant sought habeas corpus relief from his conviction and sentence in federal court. The United States District Court for the Northern District of Texas (federal district court) denied relief on his application for writ of habeas corpus. Hearn v. Cockrell, 2002 WL 1544815 (N.D.Tex. July 11, 2002). Thereafter, the United States Court of Appeals for the Fifth Circuit (Fifth Circuit)[3] and the United States Supreme Court[4] each refused applicant's petitions for review. After the United States Supreme Court refused applicant's petition for writ of certiorari, applicant's counsel concluded her representation of applicant. Applicant then sought the help of the Texas Defender Service. In March 2004, with the assistance of the Texas Defender Service attorneys, applicant filed a motion for stay of execution and appointment of counsel to *427 assist him in investigating an Atkins claim. We denied both requests, finding that applicant failed to make a prima facie showing of mental retardation. Ex parte Yokamon Laneal Hearn, No. 50,116-02 (Tex. Crim.App. Mar. 3, 2004). At about the same time, in the federal district court, applicant moved for appointment of counsel and stay of execution. The federal district court transferred the motions to the Fifth Circuit sua sponte. Applicant then filed a separate notice of appeal, asking the Fifth Circuit to reverse the order, appoint counsel, and stay the execution. The Fifth Circuit granted a stay of execution in order to determine whether applicant was entitled to counsel and services under 21 U.S.C. § 848(q). It held that applicant was entitled to such counsel, granted applicant's request for appointment of counsel, and remanded his case to the federal district court. In re Hearn and Hearn v. Dretke, 376 F.3d 447 (5th Cir.2004), reh. denied, 389 F.3d 122 (5th Cir.2004). On remand, the federal district court held that applicant had not made a showing of mental retardation, as is required in order to proceed on his successive habeas corpus petition. Hearn v. Quarterman, 2007 WL 2809908 (N.D.Tex. Sep.27, 2007). Applicant then filed a Rule 59(e) motion to vacate the judgment and supported that motion with two new expert reports. After reviewing these reports, the federal district court held that applicant did make a prima facie case for an Atkins claim and stayed the federal proceedings to allow applicant to present his Atkins claim to the state court. Hearn v. Quarterman, 2008 WL 3362041 (N.D.Tex. Aug.12, 2008). In October 2008, applicant filed, in the state district court, a subsequent application that is based on an Atkins claim and seeks post-conviction relief from his death sentence. It was forwarded to this Court in June 2009. In September 2009, the Court filed and set this case in order to determine whether alternative-assessment measures can be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning.
Applying Atkins
In Atkins, the Supreme Court held that executing persons who are mentally retarded is a violation of the Eighth Amendment. Atkins, 536 U.S. at 320, 122 S. Ct. 2242. The Supreme Court "le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." Id. at 317, 122 S. Ct. 2242. Post-Atkins, we have received a significant number of habeas corpus applications from death row inmates who allege they suffer from mental retardation and are therefore exempt from execution. "This Court does not, under normal circumstances, create law. We interpret and apply the law as written by the Texas Legislature or as announced by the United States Supreme Court." Briseno, 135 S.W.3d at 4. However, the Texas Legislature has not yet enacted legislative guidelines for enforcing the Atkins mandate. Consequently, we have set out guidelines by which to address Atkins claims until the legislature acts. Briseno, 135 S.W.3d at 4. In Briseno we announced that "[u]ntil the Texas Legislature provides an alternate statutory definition of `mental retardation,'. . . we will follow the AAMR or section 591.003(13) of the Texas Health and Safety Code criteria in addressing Atkins mental retardation claims."[5]Briseno, *428 135 S.W.3d at 8. The AAMR defines mental retardation as a disability characterized by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.[6]Briseno, 135 S.W.3d at 7 n. 26 (citing AAMR at 5). See also AAMD at 1. Determining whether one has significantly subaverage intellectual functioning is a question of fact. It is defined as an IQ of about 70 or below.[7] AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (DSM-IV). There is "a measurement error of approximately 5 points in assessing IQ," which may vary from instrument to instrument.[8]Id. Thus, any score could actually represent a score that is five points higher or five points lower than the actual IQ. Id.; see also Wilson v. Quarterman, 2009 WL 900807 *4 (E.D.Tex. Mar. 31, 2009). The IQ score is not, however, the exclusive measure of mental retardation. A finding of mental retardation also requires a showing of "significant limitations in adaptive functioning." DSM-IV at 41. According to the AAMR, three adaptive-behavior areas are applicable to determining mental retardation: conceptual skills, social skills, and practical skills.[9] Limitations in adaptive behavior can be determined by using standardized tests.[10] According to the DSM-IV, "significant limitation" is defined by a score of at least two standard deviations below either (1) the mean in one of the three adaptive behavior skills areas or (2) the overall score on a standardized measure of conceptual, social, and practical skills. Id. Although standardized tests are not the sole measure of adaptive functioning, they may be helpful to the factfinder, who has the ultimate responsibility for determining mental retardation. In addition to demonstrating that one has subaverage intellectual functioning and significant limitations in adaptive functioning, he or she must demonstrate that the two are linked the adaptive limitations must be related to a deficit in intellectual functioning and not a personality disorder. To help distinguish the two, this court has set forth evidentiary factors that "fact-finders in the criminal trial context might also focus upon in weighing evidence *429 as indicative of mental retardation or of a personality disorder."[11]Briseno, 135 S.W.3d at 8.
Applicant's prima facie case for mental retardation In 2005, defense psychologist Dr. Alice Conroy administered a WAIS-III test to applicant; applicant obtained a full-scale IQ score of 74. Defense expert Dr. James Patton concluded that applicant's full scale IQ score of 74 was within the standard error of measurement.[12] Therefore, applicant argues that because his IQ score of 74 is within the standard error of measurement, he has met the requirement of significant subaverage intellectual functioning. However, three additional IQ test scores yielded results that are materially above 70. In January 2007, the district court held an evidentiary hearing on applicant's Atkins claim. In preparation for the hearing, the two state experts administered the WAIS-III and Stanford-Binet Intelligence Scales (5th Edition). Applicant's resulting full-scale IQ scores on those tests were 88 and 93 respectively.[13] The defense then asked Dr. Dale G. Watson to review applicant's previous test results. As a part of his evaluation of applicant's mental health, Dr. Watson administered an additional IQ test using the Woodcock Johnson Test of Cognitive Abilities (3rd Edition); applicant's resulting full-scale IQ score on that test was 87. Id. After reviewing applicant's results on that test, Dr. Watson found that it did not demonstrate subaverage intellectual functioning, but did demonstrate deficits in adaptive behavior.[14] In an effort to better understand the inconsistency between applicant's above-70 full-scale IQ scores and his significant deficits in adaptive functioning, Dr. Watson administered a neuropsychological test battery. After reviewing the results, Dr. Watson concluded that applicant's neuropsychological deficits "appear" to underlie previous findings of deficits in adaptive functions, and are "likely" developmental in nature. *430 The defense then asked Dr. Stephen Greenspan to consider whether neuropsychological deficits such as those revealed by neuropsychological testing of applicant could satisfy the requirement of significantly subaverage general intellectual functioning, despite full-scale IQ scores ranging from 87 to 93. Dr. Greenspan opined that substituting neuropsychological measures for full-scale IQ scores is "justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder . . . because it is well known that such conditions cause a mixed pattern of intellectual impairments that, while just as serious and handicapping as those found in people with a diagnosis of MR, are not adequately summarized" by full-scale IQ scores.[15] Dr. Greenspan concluded that, under a more expansive definition of mental retardation, applicant could establish a mental-retardation claim. In view of all the evidence, applicant argues that he is mentally retarded. He notes that, in spite of the new IQ test results, Dr. Patton concluded that applicant is mentally retarded. "Neuropsychological testing, together with the diagnosis of fetal alcohol syndrome, has demonstrated that the significant limitations I have identified in Mr. Hearn's adaptive behavior are, nevertheless, a product of intellectual deficits. . . . I am satisfied that Mr. Hearn has mental retardation." Id. In making his Atkins claim, applicant asks this Court to significantly alter the current definition of mental retardation. Applicant correctly notes that the assessment of "about 70 or below" is flexible; "[s]ometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded while a person whose IQ tests below 70 may not be mentally retarded."[16]Briseno, 135 S.W.3d at 7 n. 24 (citing AAMD at 23). Applicant, however, misconstrues this language to mean that clinical judgment can completely replace full-scale IQ scores in measuring intellectual functioning. This court has expressly declined to establish a "mental retardation" bright-line exemption from execution without "significantly greater assistance from the [ ] legislature." Briseno, 135 S.W.3d at 6. Instead, this court interprets the "about 70" language of the AAMR's definition of mental retardation to represent a rough ceiling, above which a finding of mental retardation in the capital context is precluded.[17] *431 In the present case, applicant attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning.[18] However, this court has regarded non-IQ evidence as relevant to an assessment of intellectual functioning only where a full-scale IQ score was within the margin of error for standardized IQ testing.[19] Thus, we hold that, while applicants should be given the opportunity to present clinical assessment to demonstrate why his or her full-scale IQ score is within that margin of error, applicants may not use clinical assessment as a replacement for full-scale IQ scores in measuring intellectual functioning. The evidence before us in this application does not demonstrate significantly subaverage intellectual functioning by applicant. Accordingly, we dismiss the application. NOTES [1] Hearn v. State, No. 73,371, slip op. (Tex. Crim.App. Oct. 3, 2001). [2] Hearn v. Texas, 535 U.S. 991, 122 S. Ct. 1547, 152 L. Ed. 2d 472 (2002). [3] Hearn v. Cockrell, 73 Fed.Appx. 79 (5th Cir. 2003). [4] Hearn v. Dretke, 540 U.S. 1022, 124 S. Ct. 579, 157 L. Ed. 2d 440 (2003). [5] According to § 591.003(13) of the Texas Health and Safety Code, mental retardation "means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period." TEX. HEALTH & SAFETY CODE § 591.003(13). [6] A jury determination of mental retardation is not required. Briseno, 135 S.W.3d at 9. [7] General intellectual functioning is defined by the intelligence quotient (IQ). It is obtained by assessment with a standardized, individually administered intelligence test (i.e. Wechsler Intelligence Scales for Children, 3rd Edition; Stanford-Binet, 4th Edition; and Kaufman Assessment Battery for Children). DSM-IV at 41. [8] A Wechsler IQ score of 70 would represent a score range of 65 to 75. DSM-IV at 41. [9] Conceptual skills include skills related to language, reading and writing, money concepts, and self-direction. Social skills include skills related to interpersonal relationships, responsibility, self-esteem, gullibility, naivete, following rules, obeying laws, and avoiding victimization. Practical skills are skills related to activities of daily living and include occupational skills and maintaining a safe environment. AAMR at 82. [10] Several scales that have been designed to measure adaptive functioning: Vineland Adaptive Behavior Scales, the AAMR Adaptive Behavior Scale, the Scales of Independent Behavior, and the Adaptive Behavior Assessment System. DSM-IV at 42; Ex parte Woods, 296 S.W.3d 587, 596-97 (Tex.Crim. App.2009); Hunter v. State, 243 S.W.3d 664 at 670-71 (Tex.Crim.App.2007). [11] This court has set forth the following evidentiary factors:
Did those who knew the offender during the developmental stagehis family, friends, teachers, employers, authoritiesthink he was mentally retarded at that time, and, if so, act in accordance with that determination? Has the person formulated plans and carried them through or is his conduct impulsive? Does his conduct show leadership or does it show that he is led around by others? Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? Does he respond coherently, rationally, and on point to oral and written questions or do his responses wander from subject to subject? Can the person hide facts or lie effectively in his own or others' interests? Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning and complex execution of purpose? Briseno, 135 S.W.3d at 8-9. [12] Dr. Watson specifically stated that applicant's full-scale score of 74 is "in the IQ range that can be considered approximately two standard deviations below the mean of 100." Applicant's Habeas Application, Ex. 2 at 46. [13] An entry in the clinic notes of the Texas Department of Criminal Justice-institutional division on January 5, 1999, notes that applicant's estimated full-scale IQ on a WAIS-R short-form test was 82. [14] Dr. Watson testified that there were errors in the scoring of the WAIS-III completed by Dr. Conroy and the WAIS-III completed by Dr. Price. None of the errors changed any score by more than one point. [15] Dr. Pablo Stewart previously found that applicant suffers from Fetal Alcohol Syndrome and Dr. Greenspan adopted this finding in conducting his evaluation of applicant's mental health. Applicant's Habeas Application, Ex. 4 at 64-65. Dr. Greenspan also noted that, in the past, other experts have argued that "full-scale IQ is not an adequate indicator of significant intellectual impairment in someone with brain damage," and that extremely deficient verbal IQ could be a better index. Id. at 11-12 (discussing People v. Superior Court (Vidal), 40 Cal. 4th 999, 56 Cal. Rptr. 3d 851, 155 P.3d 259 (2007)). [16] The AAMD states that, "[t]he maximum specified IQ is not to be taken as an exact value, but as a commonly accepted guideline" and that "clinical assessment must be flexible." AAMD at 22. [17] See, e.g., Ex parte Woods, 296 S.W.3d at 608 n. 35 & 36; Williams, 270 S.W.3d at 132; Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim. App.2008); Hunter, 243 S.W.3d at 671; Gallo v. State, 239 S.W.3d 757, 771 (Tex.Crim.App. 2007); Ex parte Blue, 230 S.W.3d 151, 165 (Tex.Crim.App.2007); Ex parte Lewis, 223 S.W.3d 372, 378 n. 21 (Cochran, J. concurring) (Tex.Crim.App.2006); Hall v. State, 160 S.W.3d 24, 36 (Tex.Crim.App.2004); Briseno, 135 S.W.3d at 14 n. 53. Compare, Ex parte Van Alstyne, 239 S.W.3d 815 (Tex.Crim.App. 2007); Ex parte Bell, 152 S.W.3d 103 (Tex. Crim.App.2004); Ex parte Modden, 147 S.W.3d 293 (Tex.Crim.App.2004). [18] In support, applicant cited Dr. Greenspan's conclusion that substituting neuropsychological measures for full-scale IQ in cases of apparent brain damage "is justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder." Applicant's Habeas Application, Ex. 4 at 68. [19] In Hunter, the expert discussed the band of confidence for the particular IQ test implemented and how applicant's mild depression and having been handcuffed at the time of taking an IQ test may have affected his score. Hunter, 243 S.W.3d at 670. | 10-30-2013 | [
"310 S.W.3d 424 (2010) Ex parte Yokamon Laneal HEARN, Applicant. No. AP-76,237. Court of Criminal Appeals of Texas. April 28, 2010. *426 Richard Burr, Houston & Naomi Terr, Houston, for Appellant. Craig Watson, D.A., Dallas, Jeffrey L. VanHorn, State's Attorney, Austin, for State. OPINION JOHNSON, J., delivered the opinion for a unanimous Court. Applicant, Yokamon Laneal Hearn, was convicted of capital murder and sentenced to death. In this subsequent application for habeas corpus, applicant asserts that he is mentally retarded and, pursuant to the United States Supreme Court holding in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.",
"2d 335 (2002), constitutionally exempt from a death sentence. In our statutes and case law, \"mental retardation\" is defined by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. Ex parte Briseno, 135 S.W.3d 1, 7 n. 26 (Tex. Crim.App.2004) (citing AMERICAN ASSOCIATION OF MENTAL RETARDATION (AAMR), MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (9th ed. 1992)). See also AMERICAN ASSOCIATION ON MENTAL DEFICIENCY (AAMD), CLASSIFICATION IN MENTAL RETARDATION 1 (GROSSMAN ED. 1983). The issue before this court is whether alternative assessment measures can be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning. We hold that alternative assessment measures can not be substituted for full-scale IQ scores. Procedural History In December 1998, applicant was convicted of capital murder and sentenced to death.",
"This Court affirmed his conviction and sentence,[1] and the United States Supreme Court denied his petition for writ of certiorari. [2] While his appeal was pending in this Court, applicant filed his initial application for writ of habeas corpus in the 282nd District Court of Dallas County (state district court). That court recommended that all relief be denied. Ex parte Hearn, No. W98-46232-S(A) (282nd Dist. Ct., Dallas County, Aug. 1, 2001). Upon review of the record, this Court denied relief in an unpublished order. Ex parte Hearn, No. 50,116-01 (Tex.Crim.App. Nov. 14, 2001). Subsequently, applicant sought habeas corpus relief from his conviction and sentence in federal court. The United States District Court for the Northern District of Texas (federal district court) denied relief on his application for writ of habeas corpus.",
"Hearn v. Cockrell, 2002 WL 1544815 (N.D.Tex. July 11, 2002). Thereafter, the United States Court of Appeals for the Fifth Circuit (Fifth Circuit)[3] and the United States Supreme Court[4] each refused applicant's petitions for review. After the United States Supreme Court refused applicant's petition for writ of certiorari, applicant's counsel concluded her representation of applicant. Applicant then sought the help of the Texas Defender Service. In March 2004, with the assistance of the Texas Defender Service attorneys, applicant filed a motion for stay of execution and appointment of counsel to *427 assist him in investigating an Atkins claim. We denied both requests, finding that applicant failed to make a prima facie showing of mental retardation. Ex parte Yokamon Laneal Hearn, No. 50,116-02 (Tex. Crim.App. Mar.",
"3, 2004). At about the same time, in the federal district court, applicant moved for appointment of counsel and stay of execution. The federal district court transferred the motions to the Fifth Circuit sua sponte. Applicant then filed a separate notice of appeal, asking the Fifth Circuit to reverse the order, appoint counsel, and stay the execution. The Fifth Circuit granted a stay of execution in order to determine whether applicant was entitled to counsel and services under 21 U.S.C. § 848(q). It held that applicant was entitled to such counsel, granted applicant's request for appointment of counsel, and remanded his case to the federal district court. In re Hearn and Hearn v. Dretke, 376 F.3d 447 (5th Cir.2004), reh. denied, 389 F.3d 122 (5th Cir.2004). On remand, the federal district court held that applicant had not made a showing of mental retardation, as is required in order to proceed on his successive habeas corpus petition.",
"Hearn v. Quarterman, 2007 WL 2809908 (N.D.Tex. Sep.27, 2007). Applicant then filed a Rule 59(e) motion to vacate the judgment and supported that motion with two new expert reports. After reviewing these reports, the federal district court held that applicant did make a prima facie case for an Atkins claim and stayed the federal proceedings to allow applicant to present his Atkins claim to the state court. Hearn v. Quarterman, 2008 WL 3362041 (N.D.Tex. Aug.12, 2008). In October 2008, applicant filed, in the state district court, a subsequent application that is based on an Atkins claim and seeks post-conviction relief from his death sentence. It was forwarded to this Court in June 2009. In September 2009, the Court filed and set this case in order to determine whether alternative-assessment measures can be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning. Applying Atkins In Atkins, the Supreme Court held that executing persons who are mentally retarded is a violation of the Eighth Amendment.",
"Atkins, 536 U.S. at 320, 122 S. Ct. 2242. The Supreme Court \"le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.\" Id. at 317, 122 S. Ct. 2242. Post-Atkins, we have received a significant number of habeas corpus applications from death row inmates who allege they suffer from mental retardation and are therefore exempt from execution. \"This Court does not, under normal circumstances, create law. We interpret and apply the law as written by the Texas Legislature or as announced by the United States Supreme Court.\" Briseno, 135 S.W.3d at 4. However, the Texas Legislature has not yet enacted legislative guidelines for enforcing the Atkins mandate. Consequently, we have set out guidelines by which to address Atkins claims until the legislature acts. Briseno, 135 S.W.3d at 4.",
"In Briseno we announced that \"[u]ntil the Texas Legislature provides an alternate statutory definition of `mental retardation,'. . . we will follow the AAMR or section 591.003(13) of the Texas Health and Safety Code criteria in addressing Atkins mental retardation claims. \"[5]Briseno, *428 135 S.W.3d at 8. The AAMR defines mental retardation as a disability characterized by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. [6]Briseno, 135 S.W.3d at 7 n. 26 (citing AAMR at 5).",
"See also AAMD at 1. Determining whether one has significantly subaverage intellectual functioning is a question of fact. It is defined as an IQ of about 70 or below. [7] AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (DSM-IV). There is \"a measurement error of approximately 5 points in assessing IQ,\" which may vary from instrument to instrument.[8]Id. Thus, any score could actually represent a score that is five points higher or five points lower than the actual IQ. Id. ; see also Wilson v. Quarterman, 2009 WL 900807 *4 (E.D.Tex. Mar.",
"31, 2009). The IQ score is not, however, the exclusive measure of mental retardation. A finding of mental retardation also requires a showing of \"significant limitations in adaptive functioning.\" DSM-IV at 41. According to the AAMR, three adaptive-behavior areas are applicable to determining mental retardation: conceptual skills, social skills, and practical skills. [9] Limitations in adaptive behavior can be determined by using standardized tests. [10] According to the DSM-IV, \"significant limitation\" is defined by a score of at least two standard deviations below either (1) the mean in one of the three adaptive behavior skills areas or (2) the overall score on a standardized measure of conceptual, social, and practical skills. Id.",
"Although standardized tests are not the sole measure of adaptive functioning, they may be helpful to the factfinder, who has the ultimate responsibility for determining mental retardation. In addition to demonstrating that one has subaverage intellectual functioning and significant limitations in adaptive functioning, he or she must demonstrate that the two are linked the adaptive limitations must be related to a deficit in intellectual functioning and not a personality disorder. To help distinguish the two, this court has set forth evidentiary factors that \"fact-finders in the criminal trial context might also focus upon in weighing evidence *429 as indicative of mental retardation or of a personality disorder. \"[11]Briseno, 135 S.W.3d at 8. Applicant's prima facie case for mental retardation In 2005, defense psychologist Dr. Alice Conroy administered a WAIS-III test to applicant; applicant obtained a full-scale IQ score of 74. Defense expert Dr. James Patton concluded that applicant's full scale IQ score of 74 was within the standard error of measurement.",
"[12] Therefore, applicant argues that because his IQ score of 74 is within the standard error of measurement, he has met the requirement of significant subaverage intellectual functioning. However, three additional IQ test scores yielded results that are materially above 70. In January 2007, the district court held an evidentiary hearing on applicant's Atkins claim. In preparation for the hearing, the two state experts administered the WAIS-III and Stanford-Binet Intelligence Scales (5th Edition). Applicant's resulting full-scale IQ scores on those tests were 88 and 93 respectively. [13] The defense then asked Dr. Dale G. Watson to review applicant's previous test results. As a part of his evaluation of applicant's mental health, Dr. Watson administered an additional IQ test using the Woodcock Johnson Test of Cognitive Abilities (3rd Edition); applicant's resulting full-scale IQ score on that test was 87. Id. After reviewing applicant's results on that test, Dr. Watson found that it did not demonstrate subaverage intellectual functioning, but did demonstrate deficits in adaptive behavior.",
"[14] In an effort to better understand the inconsistency between applicant's above-70 full-scale IQ scores and his significant deficits in adaptive functioning, Dr. Watson administered a neuropsychological test battery. After reviewing the results, Dr. Watson concluded that applicant's neuropsychological deficits \"appear\" to underlie previous findings of deficits in adaptive functions, and are \"likely\" developmental in nature. *430 The defense then asked Dr. Stephen Greenspan to consider whether neuropsychological deficits such as those revealed by neuropsychological testing of applicant could satisfy the requirement of significantly subaverage general intellectual functioning, despite full-scale IQ scores ranging from 87 to 93. Dr. Greenspan opined that substituting neuropsychological measures for full-scale IQ scores is \"justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder .",
". . because it is well known that such conditions cause a mixed pattern of intellectual impairments that, while just as serious and handicapping as those found in people with a diagnosis of MR, are not adequately summarized\" by full-scale IQ scores. [15] Dr. Greenspan concluded that, under a more expansive definition of mental retardation, applicant could establish a mental-retardation claim. In view of all the evidence, applicant argues that he is mentally retarded.",
"He notes that, in spite of the new IQ test results, Dr. Patton concluded that applicant is mentally retarded. \"Neuropsychological testing, together with the diagnosis of fetal alcohol syndrome, has demonstrated that the significant limitations I have identified in Mr. Hearn's adaptive behavior are, nevertheless, a product of intellectual deficits. . . . I am satisfied that Mr. Hearn has mental retardation.\" Id. In making his Atkins claim, applicant asks this Court to significantly alter the current definition of mental retardation. Applicant correctly notes that the assessment of \"about 70 or below\" is flexible; \"[s]ometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded while a person whose IQ tests below 70 may not be mentally retarded. \"[16]Briseno, 135 S.W.3d at 7 n. 24 (citing AAMD at 23). Applicant, however, misconstrues this language to mean that clinical judgment can completely replace full-scale IQ scores in measuring intellectual functioning. This court has expressly declined to establish a \"mental retardation\" bright-line exemption from execution without \"significantly greater assistance from the [ ] legislature.\" Briseno, 135 S.W.3d at 6.",
"Instead, this court interprets the \"about 70\" language of the AAMR's definition of mental retardation to represent a rough ceiling, above which a finding of mental retardation in the capital context is precluded. [17] *431 In the present case, applicant attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning. [18] However, this court has regarded non-IQ evidence as relevant to an assessment of intellectual functioning only where a full-scale IQ score was within the margin of error for standardized IQ testing. [19] Thus, we hold that, while applicants should be given the opportunity to present clinical assessment to demonstrate why his or her full-scale IQ score is within that margin of error, applicants may not use clinical assessment as a replacement for full-scale IQ scores in measuring intellectual functioning. The evidence before us in this application does not demonstrate significantly subaverage intellectual functioning by applicant. Accordingly, we dismiss the application. NOTES [1] Hearn v. State, No.",
"73,371, slip op. (Tex. Crim.App. Oct. 3, 2001). [2] Hearn v. Texas, 535 U.S. 991, 122 S. Ct. 1547, 152 L. Ed. 2d 472 (2002). [3] Hearn v. Cockrell, 73 Fed.Appx. 79 (5th Cir. 2003). [4] Hearn v. Dretke, 540 U.S. 1022, 124 S. Ct. 579, 157 L. Ed. 2d 440 (2003). [5] According to § 591.003(13) of the Texas Health and Safety Code, mental retardation \"means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.\" TEX. HEALTH & SAFETY CODE § 591.003(13). [6] A jury determination of mental retardation is not required. Briseno, 135 S.W.3d at 9. [7] General intellectual functioning is defined by the intelligence quotient (IQ). It is obtained by assessment with a standardized, individually administered intelligence test (i.e. Wechsler Intelligence Scales for Children, 3rd Edition; Stanford-Binet, 4th Edition; and Kaufman Assessment Battery for Children).",
"DSM-IV at 41. [8] A Wechsler IQ score of 70 would represent a score range of 65 to 75. DSM-IV at 41. [9] Conceptual skills include skills related to language, reading and writing, money concepts, and self-direction. Social skills include skills related to interpersonal relationships, responsibility, self-esteem, gullibility, naivete, following rules, obeying laws, and avoiding victimization. Practical skills are skills related to activities of daily living and include occupational skills and maintaining a safe environment. AAMR at 82. [10] Several scales that have been designed to measure adaptive functioning: Vineland Adaptive Behavior Scales, the AAMR Adaptive Behavior Scale, the Scales of Independent Behavior, and the Adaptive Behavior Assessment System. DSM-IV at 42; Ex parte Woods, 296 S.W.3d 587, 596-97 (Tex.Crim. App.2009); Hunter v. State, 243 S.W.3d 664 at 670-71 (Tex.Crim.App.2007). [11] This court has set forth the following evidentiary factors: Did those who knew the offender during the developmental stagehis family, friends, teachers, employers, authoritiesthink he was mentally retarded at that time, and, if so, act in accordance with that determination? Has the person formulated plans and carried them through or is his conduct impulsive? Does his conduct show leadership or does it show that he is led around by others? Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?",
"Does he respond coherently, rationally, and on point to oral and written questions or do his responses wander from subject to subject? Can the person hide facts or lie effectively in his own or others' interests? Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning and complex execution of purpose? Briseno, 135 S.W.3d at 8-9. [12] Dr. Watson specifically stated that applicant's full-scale score of 74 is \"in the IQ range that can be considered approximately two standard deviations below the mean of 100.\" Applicant's Habeas Application, Ex. 2 at 46. [13] An entry in the clinic notes of the Texas Department of Criminal Justice-institutional division on January 5, 1999, notes that applicant's estimated full-scale IQ on a WAIS-R short-form test was 82. [14] Dr. Watson testified that there were errors in the scoring of the WAIS-III completed by Dr. Conroy and the WAIS-III completed by Dr. Price.",
"None of the errors changed any score by more than one point. [15] Dr. Pablo Stewart previously found that applicant suffers from Fetal Alcohol Syndrome and Dr. Greenspan adopted this finding in conducting his evaluation of applicant's mental health. Applicant's Habeas Application, Ex. 4 at 64-65. Dr. Greenspan also noted that, in the past, other experts have argued that \"full-scale IQ is not an adequate indicator of significant intellectual impairment in someone with brain damage,\" and that extremely deficient verbal IQ could be a better index. Id. at 11-12 (discussing People v. Superior Court (Vidal), 40 Cal. 4th 999, 56 Cal. Rptr. 3d 851, 155 P.3d 259 (2007)). [16] The AAMD states that, \"[t]he maximum specified IQ is not to be taken as an exact value, but as a commonly accepted guideline\" and that \"clinical assessment must be flexible.\" AAMD at 22. [17] See, e.g., Ex parte Woods, 296 S.W.3d at 608 n. 35 & 36; Williams, 270 S.W.3d at 132; Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim.",
"App.2008); Hunter, 243 S.W.3d at 671; Gallo v. State, 239 S.W.3d 757, 771 (Tex.Crim.App. 2007); Ex parte Blue, 230 S.W.3d 151, 165 (Tex.Crim.App.2007); Ex parte Lewis, 223 S.W.3d 372, 378 n. 21 (Cochran, J. concurring) (Tex.Crim.App.2006); Hall v. State, 160 S.W.3d 24, 36 (Tex.Crim.App.2004); Briseno, 135 S.W.3d at 14 n. 53. Compare, Ex parte Van Alstyne, 239 S.W.3d 815 (Tex.Crim.App. 2007); Ex parte Bell, 152 S.W.3d 103 (Tex. Crim.App.2004); Ex parte Modden, 147 S.W.3d 293 (Tex.Crim.App.2004). [18] In support, applicant cited Dr. Greenspan's conclusion that substituting neuropsychological measures for full-scale IQ in cases of apparent brain damage \"is justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder.\" Applicant's Habeas Application, Ex. 4 at 68. [19] In Hunter, the expert discussed the band of confidence for the particular IQ test implemented and how applicant's mild depression and having been handcuffed at the time of taking an IQ test may have affected his score. Hunter, 243 S.W.3d at 670."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1370729/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________
No. 06-2705 ___________
Estate of Delores Walters; * Tanya Ward; Paddy Aungie; * Melanie Traversie; Dion Hall; * Brady Hall, * * Appellants, * * Appeal from the United States v. * District Court for the * District of South Dakota. United States of America, * acting through the Bureau of * Indian Affairs, Department of Safety, * * Appellee. * ___________
Submitted: December 13, 2006 Filed: January 29, 2007 ___________
Before BYE, COLLOTON, and BENTON, Circuit Judges. ___________
BYE, Circuit Judge.
Several parties who suffered injuries on the Cheyenne River Sioux Indian Reservation in South Dakota challenge the district court's1 determination that their claims against the Bureau of Indian Affairs (BIA) were barred by the discretionary
1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680. We affirm.
I
Three separate car accidents occurred between January 14 and May 6, 2004, on a 14.6 mile stretch of gravel road designated as BIA Route #3 within the exterior boundaries of the Cheyenne River Sioux Indian Reservation. Several people (hereinafter Walters) were injured in the accidents. They joined together to bring claims against the United States (acting through the BIA) under the FTCA alleging the washboard condition of the gravel road contributed to their accidents, and the BIA's lack of regular maintenance was the cause of the washboard condition.
The United States filed a motion to dismiss contending the discretionary function exception barred the suit because, under the circumstances of this case, maintenance of the road was a discretionary function. See 28 U.S.C. § 2680(a) (precluding claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused"). After converting the motion to dismiss into a motion for summary judgment, the district court granted summary judgment and dismissed the suit on two grounds. First, the district court agreed the discretionary function exception applied. Second, the district court sua sponte raised the issue whether a private party could be held liable for negligent failure to maintain a road, and concluded the FTCA's private analogue requirement, see 28 U.S.C. § 1346(b)(1) (authorizing claims only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred"), barred the suit under the facts and circumstances of this case. Walters filed a timely appeal challenging both of the district court's determinations.
-2- II
We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party. Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). If the FTCA's discretionary function exception applies, it is a jurisdictional bar to suit. Dykstra v. U. S. Bureau of Prisons, 140 F.3d 791, 795 (8th Cir. 1998). We also review de novo the district court's determination that it lacks jurisdiction. Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004).
Walters contends the district court erred in determining the discretionary function exception barred this suit because road maintenance is generally not considered a discretionary function, but rather a ministerial act performed at the operational level. See ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir. 1987) (concluding the discretionary function exception did not shield the Park Service from suit for its alleged failure to maintain a road in compliance with Park Service standards that required park roads to "conform to the original grades and alignments" and to be "firm, [and] of uniform cross section"). Walters likens ARA Leisure to this case because the applicable regulation here defined maintenance as "the act of preserving the entire roadway, including surface, shoulders, roadsides, structures, and the necessary traffic control devices as nearly as possible in the as-built condition and to provide services for the satisfactory and safe use of such roads." 25 C.F.R. § 170.2(h) (2004). Walters reasons the "as-built condition" of BIA Route #3 did not include washboard, meaning the BIA did not maintain the road in compliance with the applicable standard, and thus this suit should be allowed for the same reason suit was allowed in ARA Leisure.
If § 170.2(h) were the extent of the applicable regulations, we would agree this case is the same as ARA Leisure and the discretionary function exception does not apply. The government, however, cites another applicable regulation which
-3- specifically requires the BIA to take into account the availability of funds when deciding the extent to which to maintain roads. See 25 C.F.R. § 170.6 (2004) ("Subject to the availability of funds, the Commissioner shall maintain, or cause to be maintained, those approved roads on the Federal-Aid Indian Road System.").
Where the applicable statutes, regulations, or policies allow the government to take budgetary considerations into account, the discretionary function exception applies. In National Union Fire Insurance v. United States, the Ninth Circuit explained this distinction:
A word also needs to be said about cost. In ARA Leisure, we said that the agency could not invoke the discretionary function exception based on budgetary considerations, but in Kennewick [Irrigation District v. United States, 880 F.2d 1018 (9th Cir. 1989)] we said that it could. In this case we also say that it could. These cases can be reconciled; whether the government can take cost into account depends on the applicable statutes, regulations, and policies. In ARA Leisure, the regulation required the Park Service to maintain the road width and firmness, not to balance that goal against what it would cost. In the case at bar, the statute expressly requires the Corps to consider the "relation of the ultimate cost of such work" to the other factors in deciding whether to do the work. 33 U.S.C. § 541. Where a statute or policy requires a particular government action, it has no discretionary function immunity based on its choice to spend its money doing something else instead. But where a statute or policy plainly requires the government to balance expense against other desiderata, then considering the cost of greater safety is a discretionary function.
115 F.3d 1415, 1421-22 (9th Cir. 1997).
Walters gives us no reason to create a circuit split with the Ninth Circuit on this issue, other than to urge us to consider the unfairness of shielding the BIA from suit for the serious injuries suffered by the parties in light of allegedly strong evidence the
-4- road was poorly maintained by the BIA. Unfortunately, the discretionary function exception is not about fairness:
Application of the exception is often troubling, because it may be a shield for carelessness and poor judgment. . . . Private actors generally must pay for the harm they do by carelessness. The government's power to tax enables it, better than any private actor, to perform its conduct with reasonable care for the safety of persons and property, and to spread the cost over all the beneficiaries if its conduct negligently causes harm. Fairness might seem to suggest that the government should be liable more broadly than private actors. But at its root, the discretionary function exception is about power, not fairness. The sovereign has, by the exercise of its authority, reserved to itself the right to act without liability for misjudgment and carelessness in the formulation of policy.
Id. at 1422.
Because the applicable regulations expressly required the BIA to consider the availability of funds in deciding whether to perform maintenance on its roads, we conclude the district court correctly held the discretionary function exception shields the government from suit in this case.2
III
We affirm the district court's order of dismissal.
2 Having concluded the district court lacked jurisdiction over this suit because the discretionary function exception applied, we have no reason to consider the district court's alternative holding that the suit was barred by the FTCA's private analogue requirement.
-5- COLLOTON, Circuit Judge, concurring in the judgment.
I am not as confident as my colleagues that we can uphold the district court’s conclusion that this action is barred by the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The discretionary function exception precludes liability for acts of government officials that “involve an element of judgment or choice,” where the judgment or choice is “based on considerations of public policy.” United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (internal quotations omitted). Unlike National Union Fire Insurance v. United States, 115 F.3d 1415 (9th Cir. 1997), where the applicable statute “expressly require[d]” the government “to consider the relation of the ultimate cost of [the] work to other factors in deciding whether to do the work,” id. at 1422 (internal quotation omitted), the regulation in this case says merely that the government “shall maintain, or cause to be maintained” the roads, “subject to the availability of funds.” 25 C.F.R. § 170.6 (2004). Everything the government does is subject to the availability of funds. This case thus seems closer to ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir. 1987), where the government argued that road maintenance decisions required consideration of “funding constraints,” id. at 195, and the court rejected the argument because “[b]udgetary constraints underlie virtually all governmental activity.” Id. at 196. Cf. Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986) (“Where the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees.”). I am doubtful that the people who determined not to repair the road in this case were charged with making a policy decision about the allocation or availability of government funds.
I concur in the judgment, however, because I believe the district court correctly dismissed this action pursuant to the “private analogue requirement” of the FTCA. The FTCA extends jurisdiction to the district courts over claims against the United
-6- States for wrongful acts or omissions of government employees only in circumstances “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346 (b)(1) (emphasis added). The Act requires the court “to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FCTA ‘in the performance of activities which private persons do not perform.’” United States v. Olson, 126 S. Ct. 510, 512 (2005) (quoting Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955)).
In this case, therefore, the dispositive question is whether a private entity would be liable to the plaintiffs if a private party negligently had failed to eliminate “washboard” conditions in the gravel road traveled by the plaintiffs. The Supreme Court of South Dakota provided guidance on this question in Estate of Shuck v. Perkins County, 577 N.W.2d 584 (S.D. 1998). There, a driver of an automobile lost control of his vehicle due to loose gravel on a road, and the court held that the defendant county was not liable for negligence in maintaining the road by allowing loose gravel to remain on the road. The court reasoned that “there can be no duty or negligent breach thereof concerning a condition which is inherent to that subject matter,” and observed that the plaintiffs cited no authority that “loose gravel, by itself, is not an inherent part of a gravel road.” Id. at 589. In explaining what it meant by an “inherent” condition, the court stated that “[w]hile gravel when initially placed may be compacted by machinery, the passing of time, traffic, weather and the elements can result in that compacted gravel becoming loose.” Id. (emphasis added).
The holding of Shuck demonstrates that negligent maintenance resulting in loose gravel cannot give rise to an action under the FTCA, because a private party (like a county) has no duty in South Dakota to prevent the development of such an “inherent” condition. For the same reason, the failure to prevent washboard conditions in a gravel road would not give rise to tort liability for a private party in South Dakota. There is no dispute that “washboard conditions” are an inherent
-7- condition of gravel roads in the same sense that Shuck defined loose gravel as an inherent condition – that is, while gravel roads initially may be rendered flat by machinery, the passing of time, traffic, weather, and the elements can result in the development of washboard conditions. The district court remarked that “washboard conditions on gravel roads are so obvious that any person driving on a gravel road is expected to be aware of such conditions and take precautions when driving on gravel roads.” The court took judicial notice that washboard conditions “are an inherent part of almost all gravel roads in South Dakota,” and appellants conceded this fact at oral argument. Accordingly, because a private party would not be liable in South Dakota for failing to maintain a gravel road without washboard conditions, the United States has not waived sovereign immunity under the FTCA for such an act or omission by a government employee. ______________________________
-8- | 10-13-2015 | [
"United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-2705 ___________ Estate of Delores Walters; * Tanya Ward; Paddy Aungie; * Melanie Traversie; Dion Hall; * Brady Hall, * * Appellants, * * Appeal from the United States v. * District Court for the * District of South Dakota. United States of America, * acting through the Bureau of * Indian Affairs, Department of Safety, * * Appellee. * ___________ Submitted: December 13, 2006 Filed: January 29, 2007 ___________ Before BYE, COLLOTON, and BENTON, Circuit Judges. ___________ BYE, Circuit Judge. Several parties who suffered injuries on the Cheyenne River Sioux Indian Reservation in South Dakota challenge the district court's1 determination that their claims against the Bureau of Indian Affairs (BIA) were barred by the discretionary 1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota.",
"function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680. We affirm. I Three separate car accidents occurred between January 14 and May 6, 2004, on a 14.6 mile stretch of gravel road designated as BIA Route #3 within the exterior boundaries of the Cheyenne River Sioux Indian Reservation. Several people (hereinafter Walters) were injured in the accidents. They joined together to bring claims against the United States (acting through the BIA) under the FTCA alleging the washboard condition of the gravel road contributed to their accidents, and the BIA's lack of regular maintenance was the cause of the washboard condition. The United States filed a motion to dismiss contending the discretionary function exception barred the suit because, under the circumstances of this case, maintenance of the road was a discretionary function. See 28 U.S.C. § 2680(a) (precluding claims \"based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused\"). After converting the motion to dismiss into a motion for summary judgment, the district court granted summary judgment and dismissed the suit on two grounds.",
"First, the district court agreed the discretionary function exception applied. Second, the district court sua sponte raised the issue whether a private party could be held liable for negligent failure to maintain a road, and concluded the FTCA's private analogue requirement, see 28 U.S.C. § 1346(b)(1) (authorizing claims only \"under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred\"), barred the suit under the facts and circumstances of this case. Walters filed a timely appeal challenging both of the district court's determinations. -2- II We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party.",
"Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). If the FTCA's discretionary function exception applies, it is a jurisdictional bar to suit. Dykstra v. U. S. Bureau of Prisons, 140 F.3d 791, 795 (8th Cir. 1998). We also review de novo the district court's determination that it lacks jurisdiction. Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004). Walters contends the district court erred in determining the discretionary function exception barred this suit because road maintenance is generally not considered a discretionary function, but rather a ministerial act performed at the operational level. See ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.",
"1987) (concluding the discretionary function exception did not shield the Park Service from suit for its alleged failure to maintain a road in compliance with Park Service standards that required park roads to \"conform to the original grades and alignments\" and to be \"firm, [and] of uniform cross section\"). Walters likens ARA Leisure to this case because the applicable regulation here defined maintenance as \"the act of preserving the entire roadway, including surface, shoulders, roadsides, structures, and the necessary traffic control devices as nearly as possible in the as-built condition and to provide services for the satisfactory and safe use of such roads.\"",
"25 C.F.R. § 170.2(h) (2004). Walters reasons the \"as-built condition\" of BIA Route #3 did not include washboard, meaning the BIA did not maintain the road in compliance with the applicable standard, and thus this suit should be allowed for the same reason suit was allowed in ARA Leisure. If § 170.2(h) were the extent of the applicable regulations, we would agree this case is the same as ARA Leisure and the discretionary function exception does not apply. The government, however, cites another applicable regulation which -3- specifically requires the BIA to take into account the availability of funds when deciding the extent to which to maintain roads. See 25 C.F.R.",
"§ 170.6 (2004) (\"Subject to the availability of funds, the Commissioner shall maintain, or cause to be maintained, those approved roads on the Federal-Aid Indian Road System.\"). Where the applicable statutes, regulations, or policies allow the government to take budgetary considerations into account, the discretionary function exception applies. In National Union Fire Insurance v. United States, the Ninth Circuit explained this distinction: A word also needs to be said about cost. In ARA Leisure, we said that the agency could not invoke the discretionary function exception based on budgetary considerations, but in Kennewick [Irrigation District v. United States, 880 F.2d 1018 (9th Cir. 1989)] we said that it could. In this case we also say that it could.",
"These cases can be reconciled; whether the government can take cost into account depends on the applicable statutes, regulations, and policies. In ARA Leisure, the regulation required the Park Service to maintain the road width and firmness, not to balance that goal against what it would cost. In the case at bar, the statute expressly requires the Corps to consider the \"relation of the ultimate cost of such work\" to the other factors in deciding whether to do the work. 33 U.S.C. § 541. Where a statute or policy requires a particular government action, it has no discretionary function immunity based on its choice to spend its money doing something else instead.",
"But where a statute or policy plainly requires the government to balance expense against other desiderata, then considering the cost of greater safety is a discretionary function. 115 F.3d 1415, 1421-22 (9th Cir. 1997). Walters gives us no reason to create a circuit split with the Ninth Circuit on this issue, other than to urge us to consider the unfairness of shielding the BIA from suit for the serious injuries suffered by the parties in light of allegedly strong evidence the -4- road was poorly maintained by the BIA. Unfortunately, the discretionary function exception is not about fairness: Application of the exception is often troubling, because it may be a shield for carelessness and poor judgment. . . . Private actors generally must pay for the harm they do by carelessness. The government's power to tax enables it, better than any private actor, to perform its conduct with reasonable care for the safety of persons and property, and to spread the cost over all the beneficiaries if its conduct negligently causes harm.",
"Fairness might seem to suggest that the government should be liable more broadly than private actors. But at its root, the discretionary function exception is about power, not fairness. The sovereign has, by the exercise of its authority, reserved to itself the right to act without liability for misjudgment and carelessness in the formulation of policy. Id. at 1422. Because the applicable regulations expressly required the BIA to consider the availability of funds in deciding whether to perform maintenance on its roads, we conclude the district court correctly held the discretionary function exception shields the government from suit in this case.2 III We affirm the district court's order of dismissal. 2 Having concluded the district court lacked jurisdiction over this suit because the discretionary function exception applied, we have no reason to consider the district court's alternative holding that the suit was barred by the FTCA's private analogue requirement.",
"-5- COLLOTON, Circuit Judge, concurring in the judgment. I am not as confident as my colleagues that we can uphold the district court’s conclusion that this action is barred by the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The discretionary function exception precludes liability for acts of government officials that “involve an element of judgment or choice,” where the judgment or choice is “based on considerations of public policy.” United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (internal quotations omitted). Unlike National Union Fire Insurance v. United States, 115 F.3d 1415 (9th Cir. 1997), where the applicable statute “expressly require[d]” the government “to consider the relation of the ultimate cost of [the] work to other factors in deciding whether to do the work,” id. at 1422 (internal quotation omitted), the regulation in this case says merely that the government “shall maintain, or cause to be maintained” the roads, “subject to the availability of funds.” 25 C.F.R. § 170.6 (2004). Everything the government does is subject to the availability of funds.",
"This case thus seems closer to ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir. 1987), where the government argued that road maintenance decisions required consideration of “funding constraints,” id. at 195, and the court rejected the argument because “[b]udgetary constraints underlie virtually all governmental activity.” Id. at 196. Cf. Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986) (“Where the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees.”). I am doubtful that the people who determined not to repair the road in this case were charged with making a policy decision about the allocation or availability of government funds.",
"I concur in the judgment, however, because I believe the district court correctly dismissed this action pursuant to the “private analogue requirement” of the FTCA. The FTCA extends jurisdiction to the district courts over claims against the United -6- States for wrongful acts or omissions of government employees only in circumstances “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346 (b)(1) (emphasis added).",
"The Act requires the court “to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FCTA ‘in the performance of activities which private persons do not perform.’” United States v. Olson, 126 S. Ct. 510, 512 (2005) (quoting Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955)). In this case, therefore, the dispositive question is whether a private entity would be liable to the plaintiffs if a private party negligently had failed to eliminate “washboard” conditions in the gravel road traveled by the plaintiffs. The Supreme Court of South Dakota provided guidance on this question in Estate of Shuck v. Perkins County, 577 N.W.2d 584 (S.D.",
"1998). There, a driver of an automobile lost control of his vehicle due to loose gravel on a road, and the court held that the defendant county was not liable for negligence in maintaining the road by allowing loose gravel to remain on the road. The court reasoned that “there can be no duty or negligent breach thereof concerning a condition which is inherent to that subject matter,” and observed that the plaintiffs cited no authority that “loose gravel, by itself, is not an inherent part of a gravel road.” Id. at 589. In explaining what it meant by an “inherent” condition, the court stated that “[w]hile gravel when initially placed may be compacted by machinery, the passing of time, traffic, weather and the elements can result in that compacted gravel becoming loose.” Id. (emphasis added).",
"The holding of Shuck demonstrates that negligent maintenance resulting in loose gravel cannot give rise to an action under the FTCA, because a private party (like a county) has no duty in South Dakota to prevent the development of such an “inherent” condition. For the same reason, the failure to prevent washboard conditions in a gravel road would not give rise to tort liability for a private party in South Dakota. There is no dispute that “washboard conditions” are an inherent -7- condition of gravel roads in the same sense that Shuck defined loose gravel as an inherent condition – that is, while gravel roads initially may be rendered flat by machinery, the passing of time, traffic, weather, and the elements can result in the development of washboard conditions.",
"The district court remarked that “washboard conditions on gravel roads are so obvious that any person driving on a gravel road is expected to be aware of such conditions and take precautions when driving on gravel roads.” The court took judicial notice that washboard conditions “are an inherent part of almost all gravel roads in South Dakota,” and appellants conceded this fact at oral argument. Accordingly, because a private party would not be liable in South Dakota for failing to maintain a gravel road without washboard conditions, the United States has not waived sovereign immunity under the FTCA for such an act or omission by a government employee. ______________________________ -8-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3041608/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 24 1999
TENTH CIRCUIT PATRICK FISHER Clerk
KEVIN CHARLES PORTH,
Petitioner-Appellant,
v.
JAMES FERGUSON, Warden, No. 98-8090 Wyoming Department of Corrections (D.C. No. 97-CV-36) State Penitentiary; E. K. MCDANIEL, (Wyoming) Warden, Nevada Department of Corrections State Penitentiary; ATTORNEY GENERAL OF THE STATE OF WYOMING,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
Mr. Porth appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He also moves for a certificate of appealability. We
deny his motion and dismiss the appeal.
Mr. Porth was convicted of conspiracy to commit aggravated robbery and
sentenced to twenty-five years of incarceration. His conviction was affirmed on
appeal. See Porth v. State, 868 P.2d 236 (Wyo. 1994). His application for post-
conviction relief was denied as well. He filed this petition for a writ of habeas
corpus raising ten claims: 1) ineffective assistance of appellate counsel for failure
to raise ineffective assistance of trial counsel; 2) failure of the state courts to
provide him with assistance of counsel in his petition for post-conviction relief;
3) failure of state trial court to grant him an evidentiary hearing on his petition for
post-conviction relief; 4) ineffective assistance of appellate counsel for failure to
challenge the trial court’s refusal to remove leg irons; 5) trial court error in
refusing to admit a co-conspirator’s hearsay statement; 6) trial court error in
refusing to grant defense witness immunity; 7) trial court error in permitting the
co-conspirator to invoke his Fifth Amendment privilege in the presence of the
jury; 8) trial court error in allowing defense witness to testify over the
prosecutor’s objection; 9) trial court error in admitting evidence seized without
-2- probable cause; and 10) insufficient evidence to support the verdict. In a
thorough order, the district court rejected Mr. Porth’s claims on the merits and
denied his petition.
Pursuant to 28 U.S.C. § 2253 (c)(1), a circuit judge must issue a certificate
of appealability before a state prisoner may appeal the denial of a habeas corpus
petition. A certificate of appealability “may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253 (c)(2); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).
After careful review of Mr. Porth’s application for a certificate of appealability,
his brief, the district court’s order and the entire record before us, we conclude
that Mr. Porth’s claims are meritless substantially for the reasons set forth in the
district court’s order denying the petition. Since Mr. Porth has not made a
substantial showing of the denial of a constitutional right, we deny his request for
a certificate of appealability and dismiss the appeal.
APPLICATION DENIED; APPEAL DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge
-3- | 08-14-2010 | [
"F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 24 1999 TENTH CIRCUIT PATRICK FISHER Clerk KEVIN CHARLES PORTH, Petitioner-Appellant, v. JAMES FERGUSON, Warden, No. 98-8090 Wyoming Department of Corrections (D.C. No. 97-CV-36) State Penitentiary; E. K. MCDANIEL, (Wyoming) Warden, Nevada Department of Corrections State Penitentiary; ATTORNEY GENERAL OF THE STATE OF WYOMING, Respondents-Appellees. ORDER AND JUDGMENT * Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.",
"The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. Mr. Porth appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He also moves for a certificate of appealability. We deny his motion and dismiss the appeal. Mr. Porth was convicted of conspiracy to commit aggravated robbery and sentenced to twenty-five years of incarceration.",
"His conviction was affirmed on appeal. See Porth v. State, 868 P.2d 236 (Wyo. 1994). His application for post- conviction relief was denied as well. He filed this petition for a writ of habeas corpus raising ten claims: 1) ineffective assistance of appellate counsel for failure to raise ineffective assistance of trial counsel; 2) failure of the state courts to provide him with assistance of counsel in his petition for post-conviction relief; 3) failure of state trial court to grant him an evidentiary hearing on his petition for post-conviction relief; 4) ineffective assistance of appellate counsel for failure to challenge the trial court’s refusal to remove leg irons; 5) trial court error in refusing to admit a co-conspirator’s hearsay statement; 6) trial court error in refusing to grant defense witness immunity; 7) trial court error in permitting the co-conspirator to invoke his Fifth Amendment privilege in the presence of the jury; 8) trial court error in allowing defense witness to testify over the prosecutor’s objection; 9) trial court error in admitting evidence seized without -2- probable cause; and 10) insufficient evidence to support the verdict. In a thorough order, the district court rejected Mr. Porth’s claims on the merits and denied his petition.",
"Pursuant to 28 U.S.C. § 2253 (c)(1), a circuit judge must issue a certificate of appealability before a state prisoner may appeal the denial of a habeas corpus petition. A certificate of appealability “may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).",
"After careful review of Mr. Porth’s application for a certificate of appealability, his brief, the district court’s order and the entire record before us, we conclude that Mr. Porth’s claims are meritless substantially for the reasons set forth in the district court’s order denying the petition. Since Mr. Porth has not made a substantial showing of the denial of a constitutional right, we deny his request for a certificate of appealability and dismiss the appeal. APPLICATION DENIED; APPEAL DISMISSED. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge -3-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/158126/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Curia, per ONeall, C. J. We concur in the ruling of the Judge below ; the verdict of the jury in conformity to the same is right. The governor offered the reward for the apprehension and delivery of Moses, a fugitive slave charged with a felony, to the jail of Charleston district. The plaintiff apprehended him and delivered him to the constable, the defendant, who took him before a magistrate, obtained his warrant, and then committed him to the jail of Charleston district. The governor’s reward was thus earned — by whom ? Surely by the plaintiff: for he apprehended the fugitive and placed him in the custody of a legal officer, whose duty was to lodge him in the jail, and which he did do. The ground taken in the appeal has not been pressed, but a new position has been assumed, to wit, that the constable, the defendant, was entitled jointly with the plaintiff. I cannot perceive any ground for such a claim. He had nothing to do with the apprehension. The slave was delivered to him, as a public officer, to convey to the jail. He did this : but in doing it he must be regarded as discharging a public duty, for which he is paid in his fees of office. The motion is dismissed. Johnston and Wardlaw, JJ., concurred.
Motion dismissed. | 07-29-2022 | [
"Curia, per ONeall, C. J. We concur in the ruling of the Judge below ; the verdict of the jury in conformity to the same is right. The governor offered the reward for the apprehension and delivery of Moses, a fugitive slave charged with a felony, to the jail of Charleston district. The plaintiff apprehended him and delivered him to the constable, the defendant, who took him before a magistrate, obtained his warrant, and then committed him to the jail of Charleston district. The governor’s reward was thus earned — by whom ? Surely by the plaintiff: for he apprehended the fugitive and placed him in the custody of a legal officer, whose duty was to lodge him in the jail, and which he did do. The ground taken in the appeal has not been pressed, but a new position has been assumed, to wit, that the constable, the defendant, was entitled jointly with the plaintiff. I cannot perceive any ground for such a claim. He had nothing to do with the apprehension.",
"The slave was delivered to him, as a public officer, to convey to the jail. He did this : but in doing it he must be regarded as discharging a public duty, for which he is paid in his fees of office. The motion is dismissed. Johnston and Wardlaw, JJ., concurred. Motion dismissed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7392262/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The opinion of the Court was delivered by Sergeant, J. The issuing of a new execution by the plaintiff was not a waiver of his resort to the constable, if the latter had been fixed for the debt, as was decided recently by this court in the case of a sheriff, Myers v. Commonwealth, (ante 60). On the other point, however, the instruction of the court was right. Several cases have decided that the constable, notwithstanding he *230has failed to comply with the injunctions of the first part of the 12th section of the Act of 1810, may, under the latter part of the same section, show that there was “ sufficient cause” for his not doing so. It may be shown by the constable that the plaintiff had no right to issue the execution, having already received the debt, or levied it by a prior execution, and this exempts the officer from liability to the plaintiff Such process, it is true, is not absolutely null and void, but it is one which is unwarrantable and improper, and which the plaintiff ought not to be permitted to derive an advantage from, as against any person whatever. Judgment affirmed. | 02-18-2022 | [
"The opinion of the Court was delivered by Sergeant, J. The issuing of a new execution by the plaintiff was not a waiver of his resort to the constable, if the latter had been fixed for the debt, as was decided recently by this court in the case of a sheriff, Myers v. Commonwealth, (ante 60). On the other point, however, the instruction of the court was right. Several cases have decided that the constable, notwithstanding he *230has failed to comply with the injunctions of the first part of the 12th section of the Act of 1810, may, under the latter part of the same section, show that there was “ sufficient cause” for his not doing so.",
"It may be shown by the constable that the plaintiff had no right to issue the execution, having already received the debt, or levied it by a prior execution, and this exempts the officer from liability to the plaintiff Such process, it is true, is not absolutely null and void, but it is one which is unwarrantable and improper, and which the plaintiff ought not to be permitted to derive an advantage from, as against any person whatever. Judgment affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6312475/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion issued March 26, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00047-CV ——————————— ANTHONY KHALIL, Appellant V. LOYA INSURANCE COMPANY AND SCOTT COPELAND, Appellees
On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2010-16506
MEMORANDUM OPINION
The parties have filed a joint motion to dismiss the appeal. No opinion has
issued. Accordingly, we grant the motion and dismiss the appeal. See TEX. R.
APP. P. 42.1(a)(1). We dismiss all other pending motions as moot.
PER CURIAM Panel consists of Justices Jennings, Bland, and Massengale.
2 | 10-16-2015 | [
"Opinion issued March 26, 2013 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-00047-CV ——————————— ANTHONY KHALIL, Appellant V. LOYA INSURANCE COMPANY AND SCOTT COPELAND, Appellees On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2010-16506 MEMORANDUM OPINION The parties have filed a joint motion to dismiss the appeal. No opinion has issued. Accordingly, we grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1). We dismiss all other pending motions as moot. PER CURIAM Panel consists of Justices Jennings, Bland, and Massengale. 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3118953/ | 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 .
Election/Restrictions Applicant’s election without traverse of Group I, claims 1-15, in the reply filed on 07/20/2022 is acknowledged. Claims 16-20 are withdrawn from consideration.
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.
Claims 1-3, 5-7, and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Watanabe et al. (US 2019/0088493), Wang et al. (CN 111211130 A) and Pu et al. (US 2019/0326308). In reference to claim 1, Zhang et al. (CN 109390348 A), hereafter “Zhang,” a machine translation of which is included and cited herein, discloses a three-dimensional (3D) memory device, with reference to Figure 3k, comprising: a substrate; a memory stack on the substrate comprising a plurality of interleaved conductive layers 120 and dielectric layers 151, an outermost one of the conductive layers toward the substrate being a source select gate line (SSG), paragraph 77; a plurality of channel structures 110 each extending vertically through the memory stack; an isolation structure extending vertically and surrounding at least one of the channel structures in a plan view to separate the SSG and the at least one channel structure, paragraphs 11 and 55. Zhang does not disclose the isolation structure extending vertically into the substrate or an alignment mark extending vertically into the substrate and coplanar with the isolation structure. Watanabe et al. (US 2019/0088493), hereafter “Watanabe,” discloses a 3D memory device including teaching an alignment mark, 17 and 20 in Rmark in Figure 1, extending vertically and coplanar with the isolation structure, 20 and GC in Rteg and Rcell, paragraph 33. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to form an alignment mark extending vertically and coplanar with the isolation structure. One would have been motivated to do so in order to align the structure for lithography, paragraph 27. Zhang in view of Watanabe does not teach the isolation structure or the alignment mark extending into the substrate. Wang et al. (CN 111211130 A), hereafter “Wang,” a machine translation of which is included and cited herein, discloses a 3D memory device including teaching an isolation structure, 141 in Figure 3h, extending into the substrate, paragraph 57. Pu et al. (US 2019/0326308) discloses a 3D memory device including teaching an alignment mark, 202 in Figure 2, extending into the substrate, paragraph 70. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the isolation structure and the alignment mark to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting a feature of one depth for another of different depth. In reference to claim 2, Zhang discloses wherein the plurality of channel structures are disposed in a core array region and an edge region in a plan view, and the at least one channel structure is disposed in the edge region, paragraphs 12 and 13. In reference to claim 3, Zhang discloses wherein the memory stack comprises a staircase structure, the edge region is laterally between the staircase structure and the core array region, and the at least one channel structure is disposed in an outmost column adjacent to the staircase structure in the plan view, Figure 3k and paragraphs 12 and 13. In reference to claim 5, Zhang is silent regarding a lateral distance between the SSG and the at least one channel structure is between about 40 nm and about 80 nm. Pu teaches a channel structure, 802-1, 802-2 in Figure 8 for example, separated from a structure by between about 2 nm and about 20 nm (thickness of liner 302), paragraph 68. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for a lateral distance between the SSG and the at least one channel structure to be between about 40 nm and about 80 nm. Where the general conditions of a claim are disclosed in the prior art it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), see MPEP 2144.05 II A. In this case it would be within the skill of one of ordinary skill in the art to optimize the distance by which the structures are separated. In reference to claim 6, Zhang discloses wherein each of the channel structures comprises a semiconductor plug 116 at one end toward the substrate, paragraphs 63 and 64. In reference to claim 7, Zhang discloses the isolation structure is laterally between the SSG and the semiconductor plug of the at least one channel structure, Figure 3k. In reference to claim 9, Watanabe discloses wherein the isolation structure and the alignment mark each comprise a dielectric, interlayer insulating film 20, paragraph 33. In reference to claim 10, Watanabe discloses the alignment mark extends vertically through the SSG, paragraph 33. In reference to claim 11, Watanabe discloses an SSG cut coplanar with the isolation structure and the alignment mark, test pattern in Rteg, paragraph 33. Watanabe discloses forming the SSG cut concurrently with forming an isolation structure and an alignment mark and Wang and Pu disclose isolation structures and alignment marks extending into the substrate, respectively. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the SSG cut to extend into the substrate. To do so would have merely been to apply a variation of known work in a related field to achieve predictable results based on design incentives, KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case, applying the depth of features as taught by Wang and Pu to all of the features concurrently patterned in Watanabe.
Claims 4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Watanabe et al. (US 2019/0088493), Wang et al. (CN 111211130 A) and Pu et al. (US 2019/0326308) as applied to claims 2 and 6 above and further in view of Kim et al. (US 2019/0035804). In reference to claim 4, Zhang does not disclose a lateral dimension of the at least one channel structure is greater than a lateral dimension of the channel structures disposed in the core array region. Kim et al. (US 2019/0035804), hereafter “Kim,” discloses a 3D memory device including teaching a lateral dimension d2 of the at least one channel structure DCH is greater than a lateral dimension of the channel structures CCH disposed in the core array region, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for a lateral dimension of the at least one channel structure to be greater than a lateral dimension of the channel structures disposed in the core array region. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different widths for channel structures of all the same width. In reference to claim 8, Zhang does not disclose the semiconductor plug of the at least one channel structure extends into the substrate further than a semiconductor plug of another one of the channel structures. Kim teaches the semiconductor plug of the at least one channel structure extends into the substrate further, rd2, than a semiconductor plug of another one of the channel structures, rd1, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the semiconductor plug of the at least one channel structure to extend into the substrate further than a semiconductor plug of another one of the channel structures. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different depths for channel structures of all the same depth.
Claims 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Wang et al. (CN 111211130 A). In reference to claim 12, Zhang discloses a 3D memory device, with reference to Figure 3k, comprising: a substrate; a source select gate line (SSG) extending laterally; an isolation structure extending vertically through the SSG into the substrate, paragraph 77; a first channel structure 110 extending vertically through the SSG into the substrate, paragraphs 61 and 62; and a second channel structure 110 extending vertically through the isolation structure into the substrate and spaced apart from the SSG by the isolation structure, paragraphs 11 and 55. Zhang does not disclose the isolation structure extending vertically into the substrate. Wang et al. (CN 111211130 A) discloses a 3D memory device including teaching an isolation structure, 141 in Figure 3h, extending into the substrate, paragraph 57. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the isolation structure to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting a feature of one depth for another of different depth. In reference to claim 13, Zhang discloses the first channel structure is disposed in a core array region, and the second channel structure is disposed in an edge region in a plan view, Figure 3k and paragraphs 12 and 13.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Wang et al. (CN 111211130 A) as applied to claim 12 above and further in view of Kim et al. (US 2019/0035804). In reference to claim 14, Zhang does not disclose the second channel structure extends into the substrate further than the first channel structures. Kim teaches second channel structure DCH extends into the substrate further, rd2, than the first channel structures, rd1, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the second channel structure to extend into the substrate further than the first channel structures. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different depths for channel structures of all the same depth.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) and Wang et al. (CN 111211130 A) as applied to claim 12 above and further in view of Watanabe et al. (US 2019/0088493) and Pu et al. (US 2019/0326308). In reference to claim 15, Zhang does not disclose an alignment mark extending vertically through the SSG into the substrate and coplanar with the isolation structure; and an SSG cut extending vertically through the SSG into the substrate and coplanar with the isolation structure and the alignment mark. Watanabe discloses a 3D memory device including teaching an alignment mark, 17 and 20 in Rmark in Figure 1, extending vertically through the SSG and coplanar with the isolation structure, 20 and GC in Rteg and Rcell, and an SSG cut, test pattern in Rteg, extending vertically through the SSG and coplanar with the isolation structure and the alignment mark, paragraph 33. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to form an alignment mark extending vertically through the SSG and coplanar with the isolation structure. One would have been motivated to do so in order to align the structure for lithography, paragraph 27. Watanabe does not disclose the alignment mark or the SSG cut extending into the substrate. Pu et al. (US 2019/0326308) discloses a 3D memory device including teaching an alignment mark, 202 in Figure 2, extending into the substrate, paragraph 70. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the alignment mark to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting a feature of one depth for another of different depth. Watanabe discloses forming the SSG cut concurrently with forming an isolation structure and an alignment mark and Wang and Pu disclose isolation structures and alignment marks extending into the substrate, respectively. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the SSG cut to extend into the substrate. To do so would have merely been to apply a variation of known work in a related field to achieve predictable results based on design incentives, KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case, applying the depth of features as taught by Wang and Pu to all of the features concurrently patterned in Watanabe.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN R. JUNGE whose telephone number is (571)270-5717. The examiner can normally be reached M-F 8:00-4:30 CT. 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, Fernando Toledo can be reached on 571-272-1867. 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.
/BRYAN R JUNGE/ Primary Examiner, Art Unit 2897 | 2022-08-16T22:00:07 | [
"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 Applicant’s election without traverse of Group I, claims 1-15, in the reply filed on 07/20/2022 is acknowledged. Claims 16-20 are withdrawn from consideration. 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.",
"Claims 1-3, 5-7, and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Watanabe et al. (US 2019/0088493), Wang et al. (CN 111211130 A) and Pu et al. (US 2019/0326308). In reference to claim 1, Zhang et al. (CN 109390348 A), hereafter “Zhang,” a machine translation of which is included and cited herein, discloses a three-dimensional (3D) memory device, with reference to Figure 3k, comprising: a substrate; a memory stack on the substrate comprising a plurality of interleaved conductive layers 120 and dielectric layers 151, an outermost one of the conductive layers toward the substrate being a source select gate line (SSG), paragraph 77; a plurality of channel structures 110 each extending vertically through the memory stack; an isolation structure extending vertically and surrounding at least one of the channel structures in a plan view to separate the SSG and the at least one channel structure, paragraphs 11 and 55. Zhang does not disclose the isolation structure extending vertically into the substrate or an alignment mark extending vertically into the substrate and coplanar with the isolation structure.",
"Watanabe et al. (US 2019/0088493), hereafter “Watanabe,” discloses a 3D memory device including teaching an alignment mark, 17 and 20 in Rmark in Figure 1, extending vertically and coplanar with the isolation structure, 20 and GC in Rteg and Rcell, paragraph 33. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to form an alignment mark extending vertically and coplanar with the isolation structure. One would have been motivated to do so in order to align the structure for lithography, paragraph 27. Zhang in view of Watanabe does not teach the isolation structure or the alignment mark extending into the substrate.",
"Wang et al. (CN 111211130 A), hereafter “Wang,” a machine translation of which is included and cited herein, discloses a 3D memory device including teaching an isolation structure, 141 in Figure 3h, extending into the substrate, paragraph 57. Pu et al. (US 2019/0326308) discloses a 3D memory device including teaching an alignment mark, 202 in Figure 2, extending into the substrate, paragraph 70. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the isolation structure and the alignment mark to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007).",
"In this case substituting a feature of one depth for another of different depth. In reference to claim 2, Zhang discloses wherein the plurality of channel structures are disposed in a core array region and an edge region in a plan view, and the at least one channel structure is disposed in the edge region, paragraphs 12 and 13. In reference to claim 3, Zhang discloses wherein the memory stack comprises a staircase structure, the edge region is laterally between the staircase structure and the core array region, and the at least one channel structure is disposed in an outmost column adjacent to the staircase structure in the plan view, Figure 3k and paragraphs 12 and 13. In reference to claim 5, Zhang is silent regarding a lateral distance between the SSG and the at least one channel structure is between about 40 nm and about 80 nm. Pu teaches a channel structure, 802-1, 802-2 in Figure 8 for example, separated from a structure by between about 2 nm and about 20 nm (thickness of liner 302), paragraph 68.",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for a lateral distance between the SSG and the at least one channel structure to be between about 40 nm and about 80 nm. Where the general conditions of a claim are disclosed in the prior art it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), see MPEP 2144.05 II A.",
"In this case it would be within the skill of one of ordinary skill in the art to optimize the distance by which the structures are separated. In reference to claim 6, Zhang discloses wherein each of the channel structures comprises a semiconductor plug 116 at one end toward the substrate, paragraphs 63 and 64. In reference to claim 7, Zhang discloses the isolation structure is laterally between the SSG and the semiconductor plug of the at least one channel structure, Figure 3k. In reference to claim 9, Watanabe discloses wherein the isolation structure and the alignment mark each comprise a dielectric, interlayer insulating film 20, paragraph 33. In reference to claim 10, Watanabe discloses the alignment mark extends vertically through the SSG, paragraph 33. In reference to claim 11, Watanabe discloses an SSG cut coplanar with the isolation structure and the alignment mark, test pattern in Rteg, paragraph 33. Watanabe discloses forming the SSG cut concurrently with forming an isolation structure and an alignment mark and Wang and Pu disclose isolation structures and alignment marks extending into the substrate, respectively.",
"It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the SSG cut to extend into the substrate. To do so would have merely been to apply a variation of known work in a related field to achieve predictable results based on design incentives, KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case, applying the depth of features as taught by Wang and Pu to all of the features concurrently patterned in Watanabe.",
"Claims 4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Watanabe et al. (US 2019/0088493), Wang et al. (CN 111211130 A) and Pu et al. (US 2019/0326308) as applied to claims 2 and 6 above and further in view of Kim et al. (US 2019/0035804). In reference to claim 4, Zhang does not disclose a lateral dimension of the at least one channel structure is greater than a lateral dimension of the channel structures disposed in the core array region. Kim et al. (US 2019/0035804), hereafter “Kim,” discloses a 3D memory device including teaching a lateral dimension d2 of the at least one channel structure DCH is greater than a lateral dimension of the channel structures CCH disposed in the core array region, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for a lateral dimension of the at least one channel structure to be greater than a lateral dimension of the channel structures disposed in the core array region.",
"To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different widths for channel structures of all the same width. In reference to claim 8, Zhang does not disclose the semiconductor plug of the at least one channel structure extends into the substrate further than a semiconductor plug of another one of the channel structures. Kim teaches the semiconductor plug of the at least one channel structure extends into the substrate further, rd2, than a semiconductor plug of another one of the channel structures, rd1, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the semiconductor plug of the at least one channel structure to extend into the substrate further than a semiconductor plug of another one of the channel structures.",
"To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different depths for channel structures of all the same depth. Claims 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Wang et al. (CN 111211130 A). In reference to claim 12, Zhang discloses a 3D memory device, with reference to Figure 3k, comprising: a substrate; a source select gate line (SSG) extending laterally; an isolation structure extending vertically through the SSG into the substrate, paragraph 77; a first channel structure 110 extending vertically through the SSG into the substrate, paragraphs 61 and 62; and a second channel structure 110 extending vertically through the isolation structure into the substrate and spaced apart from the SSG by the isolation structure, paragraphs 11 and 55.",
"Zhang does not disclose the isolation structure extending vertically into the substrate. Wang et al. (CN 111211130 A) discloses a 3D memory device including teaching an isolation structure, 141 in Figure 3h, extending into the substrate, paragraph 57. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the isolation structure to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting a feature of one depth for another of different depth.",
"In reference to claim 13, Zhang discloses the first channel structure is disposed in a core array region, and the second channel structure is disposed in an edge region in a plan view, Figure 3k and paragraphs 12 and 13. Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 109390348 A) in view of Wang et al. (CN 111211130 A) as applied to claim 12 above and further in view of Kim et al. (US 2019/0035804). In reference to claim 14, Zhang does not disclose the second channel structure extends into the substrate further than the first channel structures. Kim teaches second channel structure DCH extends into the substrate further, rd2, than the first channel structures, rd1, paragraph 88. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the second channel structure to extend into the substrate further than the first channel structures.",
"To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting channel structures of different depths for channel structures of all the same depth. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al.",
"(CN 109390348 A) and Wang et al. (CN 111211130 A) as applied to claim 12 above and further in view of Watanabe et al. (US 2019/0088493) and Pu et al. (US 2019/0326308). In reference to claim 15, Zhang does not disclose an alignment mark extending vertically through the SSG into the substrate and coplanar with the isolation structure; and an SSG cut extending vertically through the SSG into the substrate and coplanar with the isolation structure and the alignment mark. Watanabe discloses a 3D memory device including teaching an alignment mark, 17 and 20 in Rmark in Figure 1, extending vertically through the SSG and coplanar with the isolation structure, 20 and GC in Rteg and Rcell, and an SSG cut, test pattern in Rteg, extending vertically through the SSG and coplanar with the isolation structure and the alignment mark, paragraph 33. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to form an alignment mark extending vertically through the SSG and coplanar with the isolation structure.",
"One would have been motivated to do so in order to align the structure for lithography, paragraph 27. Watanabe does not disclose the alignment mark or the SSG cut extending into the substrate. Pu et al. (US 2019/0326308) discloses a 3D memory device including teaching an alignment mark, 202 in Figure 2, extending into the substrate, paragraph 70. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the alignment mark to extend into the substrate. To do so would have merely been a simple substitution of one known element for another to obtain predictable results; KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007). In this case substituting a feature of one depth for another of different depth. Watanabe discloses forming the SSG cut concurrently with forming an isolation structure and an alignment mark and Wang and Pu disclose isolation structures and alignment marks extending into the substrate, respectively. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the SSG cut to extend into the substrate. To do so would have merely been to apply a variation of known work in a related field to achieve predictable results based on design incentives, KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, (2007).",
"In this case, applying the depth of features as taught by Wang and Pu to all of the features concurrently patterned in Watanabe. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN R. JUNGE whose telephone number is (571)270-5717. The examiner can normally be reached M-F 8:00-4:30 CT. 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, Fernando Toledo can be reached on 571-272-1867. 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. /BRYAN R JUNGE/ Primary Examiner, Art Unit 2897"
]
| 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 |
HABALSON, J. -The principle is generally' recognized in the books, that taxes are not a lien unless expressly made so by statute. Mr. 'Cooley says: “In considering this remedy by suit, it is to be kept in mind that it exists only by force of the statute. The statute must, therefore, be closely followed in the proceedings1.” — Cooley on Tax., 444, 449. Mr. Desty observes: “A tax is not a lien unless it is expressly made so by laAV or ordinance which imposes it. The lien on real estate for taxes has no existence, unless there be some statute creating it, and such statute must be strictly construed.”-Desty on Tax., 734; Canal Co. v. Gordon, 6 Wall. 561; 25 Am. & Eng. Ency. Law, 267; 1 Jones on Liens, § 112; 1 Pom. Eq. Juris., § 281; Endlich on Int. of Statutes, 154, 434, 435. In Chandler v. Hanna, 73 Ala. 392, it is said: “The rule is general, of' great practical importance, and has been frequently acted upon, that ‘when by a statute a *188new right is given, and a specific remedy provided, or a. new power, and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute.’ * * * The rule does not collide with the general rule, that the jurisdiction of a court of equity is not impaired by statutes conferring upon other tribunals jurisdiction which was exclusively equitable, unless the statutes expressly take away the equitable jurisdiction; nor with the other well settled rule, That if a statute gives a remedy in the affirmative, without a negative, express or implied, for a matter which was actionable at the common law, the party may sue at the common law as well as upon the statute; for this does not take away the common law remedy.’ * * * In the cases to which these rules are applied, the right existed and its enforcement lay within the jurisdiction of either the court of equity or the common law courts. * * * But when the right is solely and exclusively of legislative creation, when it does not derive existence from the common law, or from the principle prevailing in courts of equity, jurisdiction of it may be limited to particular tribunals, and specific peculiar remedies provided for its enforcement. The jurisdiction and the remedy being bounded by the statute, can be pursued and exercised only before the tribunals and in the mode the statute provides. Other tribunals cannot exercise the jurisdiction without enlarging the operation of the statute.” So it was held in that case, that the lien of a mechanic and material-man was a new right, created by statute for which a specific remedy was provided by action at law, and in the absence of special cause for equitable interposition, a court of equity could not assume jurisdiction of its enforcement.- — Walker v. Dainwood, 80 Ala. 245; Globe I. R. & C. Co. v. Thacher, 87 Ala. 453, 465; Phillips v. Ash, 63 Ala. 414; Wimberly v. Mayberry 94 Ala. 355; Janney v. Buell, 55 Ala. 408. The facts of the -ease to which the foregoing principles are applicable, are undisputed, and as stated by the complainant’s counsel, and as appear in the transcript, are, that -on the 29th September, 1894, the de*189fendant, tlie Sheffield City Company, executed a deed of trust of all its property to Wilhoyte and Fossick for the benefit of creditors; that before said deed "was made, in June, 1894, the complainant, Tradesman’s National Bank, bought said property, 287 lots in Sheffield, at a tax sale for State and county taxes, received a certificate of purchase, and afterwards, a deed to the property from the probate judge. Afterwards, in July, 1894, the same property ivas sold by the city of Sheffield for municipal taxes and bought in by the complainant bank. A deed was accordingly made to it, and the property has been assessed ever since to complainant, and the taxes paid by it and by no one else. In May, 1898, in the case of Enslen v. the defendant company and one Harris, C. B. Ashe was appointed receiver of all the assets of the defendant company, and is now acting as such receiver, and he is not nor are said trustees taking any steps to redeem said property, and there are no assets of said corporation out of which said taxes so paid by complainant can be paid, except out of the said lots included in said tax sales. It was not averred that complainant ever went into possession of said property. It is averred-that E. F. Enslen claims to have a lien on said property by virtue of a judgment rendered against the defendant company, in the circuit court of 'Colbert county, on the 11th April, 1895, based on a claim which was due before the execution of said deed of trust. The bill further alleges, that by reason of certain irregularities, said tax sales were" ineffectual to pass the. legal title (but not because the taxes were not due) and prays for the enforcement of the-'lien which the statutes of Alabama give to complainant- for the payment of the money paid out for taxes on said property. It- is contended by the defendants that, whether said sales were void or not, complainant has no right to invoke the aid of a court of equity to enforce any lien for the recovery of sums paid out in taxes to the State, county and city on said property since said sale in 1893. *190Section 459 of the Code of 1886 (Code 1896, § 3921) provided, that from and after the first of January -of each year, the State shall have a prior lien upon each and every piece or parcel of property, real or personal, for the payment of taxes which may be assessed against the owner, or upon such property, during that year for the use of the State, and in favor of the county for taxes during the year, in like manner, for the use of the county. Section 3921 of the Code of 1896, is to the same effect, except that the lien is from the first of October, instead of from first of January of each year. Section 597 of Code of 1886 and 4078 of Code of 1896, provide that “When the sale of any land sold for the payment of taxes is, for any cause, ineffectual to pass the title to the purchaser, except in cases in which such sales are in this title ['chapter in the section of Code of 1896] expressly declared to be invalid, such sale shall operate as an assignment to the purchaser of the rights and liens of the State and county in and to the. land sold.” This lien of the State on property, it is to be observed, is foa* the taxes of the year for which it was assessed. If the property is assessed for a particular year, — as in this case for the year 1893,— the lien extends no further so far as it grows out of that assessment, than for the ■security of the taxes for that year. If the property assessed for a particular year, be sold by the 'State for the enforcement of the State and county taxes of that year, and is purchased by a stranger, the lien, so far as the interest' of the State is concerned, is satisfied, and the State has no liens for future assessments to be assigned or conferred on a purchaser. — Winter v. City Council, 101 Ala. 649. The State has its money, and no remedy is bestowed for its recovery back from the State, even if the sale for taxes was ineffectual to pass the title to the purchaser. The rule of caveat emptor applies to him. — Desty on Tax., 850; Cooley on Tax., 476. So, if that were all, the purchaser would be x-emediless as to voluntary payment of future assessments of taxes on the property. In other words, the. lien which the statute (§ 3921) gives the State and county, and *191which, is a prior and superior lien to all other liens, is confined by the terms of the statute, — “for the payment of the taxes which may be assessed against the owner, or upon the property, during that year for the use of the State” and county. But, the sale of the land for the State and county taxes may have been made in such a manner as to be ineffectual to pass the title to the purchaser, in which case, without more, the owner could ‘sue the purchaser and recover the land, although the taxes due the State and county had been fully paid by the purchaser. The legislature sought to remedy this hardship and injustice, and by said section 4078 (597) of the Code, above referred to, provided, so far as the purchaser’s interests are concerned, fob keeping the State and county lien alive for the benefit of the purchaser, when the sale was ineffectual to pass title to the purchaser, and assigned it to him, for his security, though the State and county, having been fully paid, have no pecuniary interest in the matter. The legislature recognized the fact, that it would be most unjust for the owner to recover his land from such purchaser, on account of the irregularity of the sale rrnder which it was sold for taxes, and not refund to him the taxes, costs and expenses of the sale, for which he, the owner, was liable and should have paid. Otherwise, owners of taxable property would be encouraged not to pay their taxes, and speculate on the chances,— far more than equal, — of a recovery of the land from the purchaser, because of irregularities in the assessment and sale. So it -was, by that and other sections of the Code, the State has sought to protect purchasers at tax sales in providing a security and a remedy for the money they have paid out for delinquent owners, when the title they acquired from the State was invalid, because of irregularities committed by the officers of the State. In so doing, the owner is not injured, the purchaser is protected, and the general policy of the State to encourage the purchase of property for delinquent taxes, promoted. The point to be emphasized, and not overlooked in every case is, that the lien of the State and county, assigned by the terms of the statute to a purchaser, is a yearly one, and exists in *192no instance, except for the taxes assessed and payable for the particular year or years for which the property was .sold. Several years’ taxes and liens therefor may exist, before the sale for some reason may have occurred, but the liens and taxes for each year are separate and distinct. So it is, that a purchaser has and enjoys the benefits of this lien, to the full extent for which it was bestowed, and may enforce it for his reimbursement for the amounts he has' paid the State and county for the owner, — in case the sale was ineffectual to pass the title to him, but for no other reason. If the sale was legal, he acquired the title and needed and acquired no lien from the State and county. Here appears the first concern of the State for the protection of purchasers at tax sales, and the provisions enacted for their benefit in securing to them the amounts they have paid at the sale, which delinquent owners owed and were under duty to pay. It may be added in this connection, as a further safeguard to tax purchasers, that section 4081 (599) entitles the purchaser of land at a tax sale, or any one claiming under him, after the expiration of six months from the date of sale, to maintain an action of ejectment or statutory action in the nature of ejectment, or of unlawful detainer for the recovery of the possession of the land, to be held by him, subject only to the right of redemption bestowed by the statute on the owner. As another remedial safeguard to the purchaser, the legislature further provided, that “No action for the recovery of real estate sold for taxes shall lie, unless the samé is brought within three years from the date when the purchaser became entitled to demand a deed therefor,” etc. — Code, § 4089; Capehart v. Guffey, 130 Ala. 425. But, as we have stated, so far as the lien of the State and county is concerned, it exists and is provided for and is assigned to the purchaser, only for the taxes of the particular year or years for which the land was sold. Here the legislature might have rested without other provisions on the subject, leaving its revenue system in this regard, incomplete. It was manifest, how*193ever, thal the titles of purchasers might and wonld he disputed by owners, and that suits would he brought to test the validity of the assessment and sale of lands for taxes. To meet such contingencies, the legislature took another step forward, and provided still ampler legislation for their protection, in the enactment of othei* provisions. It occurred to the legislative mind,, that a purchaser, while he had assigned to him by statute the lien of the State and county to protect him in the purchase of the land when originally sold, to the extent of what he then paid, might, under the presumption that he had acquired a good title, go forward thereafter and discharge assessments against the property in future years, which amounts, in case the original sale was declared invalid, should he refunded to him. For relief in such cases, section 4083 of the Code was adopted providing: “If, in any suit brought by the purchaser or other person claiming under him to recover lands sold for taxes, a recovery is defeated on the ground that the sale was invalid for any other reason than that the taxes were not due, the court shall forthwith., on the motion of the plaintiff, impanel a jury to ascertain the amount of taxes for which the lands were liable at the time of the sale, and for the payment of which they were sold, with interest thereon from the date of sale, and the amount of such taxes on the lands, if any, as the plaintiff, or the person under whom he claims, has, since such sale, lawfully paid, Avith interest thereon from the date of such payment, the interest- on both amounts to he computed at the rate of tAvelve per cent per annum; and the court shall, thereupon, render judgment against the defendant in favor of the plaintiff for the amount ascertained by the jury, and the costs of suit, Avhich judgment shall constitute a lien on the lands sued for, and payment thereof may be (ui forced as in other cases.” — Code, ¡j 4083. The next section, 4084, makes proAdsion for the payment of the purchaser, or other person claiming under 'him, Avhen sued for possession hv the OAvner, and the purchaser claims and defends under his tax title, and his defense fails on the ground that the sale Avas invalid for any other reason than that the taxes were not due, *194and the plaintiff recovers. Provision is then made for the ascertainment of the amounts paid by the purchaser, with interest at 12. per cent per annum, for which he is to have a judgment and lien, as provided in the other section. These sections, going further than section 4078, as to a lien for which the lands were sold, but including all taxes, State, county and municipal which the purchaser may, since the sale, have paid on the property, give in addition a lien on it for the whole sum, for his indemnification and reimbursement. — Turner v. White, 97 Ala. 545; Cobb v. Vary, 120 Ala. 263. These sections are cumulative of rights and remedies as provided in said sections 3921 and 4078. The latter sections (4083 and 4084) themselves confer a lien for the purposes in them specified, but this lien is distinct from the first one bestowed; and a full and ample remedy is provided in said last named sections for suits arising under them. The right here bestowed was a new one, theretofore not existing, and the remedy for its enforcement is provided in the same statute which created the. right. Under these two sections, as we have said, the lien is created distinct from that given to the State under the former 'section, 3921. It does not arise and is not bestowed, except at the end and as the result of a judgment in ejectment, and it is, then, and not before, the judgment which constitutes a lien on the lands sued for arises. They are as distinct as two mortgages on the same land are. They are bestowed on different persons', 'at different times", on different conditions and the latter has a 12 per cent penalty by way of interest, not attached to the former, and embraces municipal taxes, which the lien given the State by statute does not cover. When this new right is sought to be enforced, the specific remedy if provided by statute must be pursued, and chancery has no jurisdiction to enforce it. Authorities supra. This suit is instituted primarily not to enforce the purchaser’s lien to it by the State for the purchase money, etc., paid at the tax sale for the year 1893. Its chief object is to enforce the lien for taxes for sub*195sequent years, when no suck lien exists, and cannot exist, except at the end of an ejectment suit, and a judgment rendered therein, in favor of the complainant, as provided in said section 4083. It may be, if the proceeding had been to enforce the lien of the State for the year 1893, assigned under the statute to complainant, that the chancery court, by virtue of its jurisdiction generally to enforce liens, when no other adequate, legal remedy exists or is provided, would have had jurisdiction to entertain the action. — Westmoreland v. Trousdale, 60 Ala. 448; Carmen v. Ala. Nat. Bank, 101 Ala. 189. But that case is not before us. It results that the decree of the court below is erroneous, and must be reversed. The judgment of this court heretofore rendered reversing the decree and dismissing the bill, will be set aside, and the judgment will now be rendered, reversing the decree below and remanding the cause. Reversed and remanded. | 07-19-2022 | [
"HABALSON, J. -The principle is generally' recognized in the books, that taxes are not a lien unless expressly made so by statute. Mr. 'Cooley says: “In considering this remedy by suit, it is to be kept in mind that it exists only by force of the statute. The statute must, therefore, be closely followed in the proceedings1.” — Cooley on Tax., 444, 449. Mr. Desty observes: “A tax is not a lien unless it is expressly made so by laAV or ordinance which imposes it.",
"The lien on real estate for taxes has no existence, unless there be some statute creating it, and such statute must be strictly construed.”-Desty on Tax., 734; Canal Co. v. Gordon, 6 Wall. 561; 25 Am. & Eng. Ency. Law, 267; 1 Jones on Liens, § 112; 1 Pom. Eq. Juris., § 281; Endlich on Int. of Statutes, 154, 434, 435. In Chandler v. Hanna, 73 Ala. 392, it is said: “The rule is general, of' great practical importance, and has been frequently acted upon, that ‘when by a statute a *188new right is given, and a specific remedy provided, or a. new power, and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute.’ * * * The rule does not collide with the general rule, that the jurisdiction of a court of equity is not impaired by statutes conferring upon other tribunals jurisdiction which was exclusively equitable, unless the statutes expressly take away the equitable jurisdiction; nor with the other well settled rule, That if a statute gives a remedy in the affirmative, without a negative, express or implied, for a matter which was actionable at the common law, the party may sue at the common law as well as upon the statute; for this does not take away the common law remedy.’ * * * In the cases to which these rules are applied, the right existed and its enforcement lay within the jurisdiction of either the court of equity or the common law courts.",
"* * * But when the right is solely and exclusively of legislative creation, when it does not derive existence from the common law, or from the principle prevailing in courts of equity, jurisdiction of it may be limited to particular tribunals, and specific peculiar remedies provided for its enforcement. The jurisdiction and the remedy being bounded by the statute, can be pursued and exercised only before the tribunals and in the mode the statute provides. Other tribunals cannot exercise the jurisdiction without enlarging the operation of the statute.” So it was held in that case, that the lien of a mechanic and material-man was a new right, created by statute for which a specific remedy was provided by action at law, and in the absence of special cause for equitable interposition, a court of equity could not assume jurisdiction of its enforcement.- — Walker v. Dainwood, 80 Ala. 245; Globe I. R. & C. Co. v. Thacher, 87 Ala. 453, 465; Phillips v. Ash, 63 Ala. 414; Wimberly v. Mayberry 94 Ala. 355; Janney v. Buell, 55 Ala. 408.",
"The facts of the -ease to which the foregoing principles are applicable, are undisputed, and as stated by the complainant’s counsel, and as appear in the transcript, are, that -on the 29th September, 1894, the de*189fendant, tlie Sheffield City Company, executed a deed of trust of all its property to Wilhoyte and Fossick for the benefit of creditors; that before said deed \"was made, in June, 1894, the complainant, Tradesman’s National Bank, bought said property, 287 lots in Sheffield, at a tax sale for State and county taxes, received a certificate of purchase, and afterwards, a deed to the property from the probate judge. Afterwards, in July, 1894, the same property ivas sold by the city of Sheffield for municipal taxes and bought in by the complainant bank. A deed was accordingly made to it, and the property has been assessed ever since to complainant, and the taxes paid by it and by no one else.",
"In May, 1898, in the case of Enslen v. the defendant company and one Harris, C. B. Ashe was appointed receiver of all the assets of the defendant company, and is now acting as such receiver, and he is not nor are said trustees taking any steps to redeem said property, and there are no assets of said corporation out of which said taxes so paid by complainant can be paid, except out of the said lots included in said tax sales. It was not averred that complainant ever went into possession of said property. It is averred-that E. F. Enslen claims to have a lien on said property by virtue of a judgment rendered against the defendant company, in the circuit court of 'Colbert county, on the 11th April, 1895, based on a claim which was due before the execution of said deed of trust. The bill further alleges, that by reason of certain irregularities, said tax sales were\" ineffectual to pass the.",
"legal title (but not because the taxes were not due) and prays for the enforcement of the-'lien which the statutes of Alabama give to complainant- for the payment of the money paid out for taxes on said property. It- is contended by the defendants that, whether said sales were void or not, complainant has no right to invoke the aid of a court of equity to enforce any lien for the recovery of sums paid out in taxes to the State, county and city on said property since said sale in 1893. *190Section 459 of the Code of 1886 (Code 1896, § 3921) provided, that from and after the first of January -of each year, the State shall have a prior lien upon each and every piece or parcel of property, real or personal, for the payment of taxes which may be assessed against the owner, or upon such property, during that year for the use of the State, and in favor of the county for taxes during the year, in like manner, for the use of the county. Section 3921 of the Code of 1896, is to the same effect, except that the lien is from the first of October, instead of from first of January of each year.",
"Section 597 of Code of 1886 and 4078 of Code of 1896, provide that “When the sale of any land sold for the payment of taxes is, for any cause, ineffectual to pass the title to the purchaser, except in cases in which such sales are in this title ['chapter in the section of Code of 1896] expressly declared to be invalid, such sale shall operate as an assignment to the purchaser of the rights and liens of the State and county in and to the. land sold.” This lien of the State on property, it is to be observed, is foa* the taxes of the year for which it was assessed. If the property is assessed for a particular year, — as in this case for the year 1893,— the lien extends no further so far as it grows out of that assessment, than for the ■security of the taxes for that year.",
"If the property assessed for a particular year, be sold by the 'State for the enforcement of the State and county taxes of that year, and is purchased by a stranger, the lien, so far as the interest' of the State is concerned, is satisfied, and the State has no liens for future assessments to be assigned or conferred on a purchaser. — Winter v. City Council, 101 Ala. 649. The State has its money, and no remedy is bestowed for its recovery back from the State, even if the sale for taxes was ineffectual to pass the title to the purchaser. The rule of caveat emptor applies to him.",
"— Desty on Tax., 850; Cooley on Tax., 476. So, if that were all, the purchaser would be x-emediless as to voluntary payment of future assessments of taxes on the property. In other words, the. lien which the statute (§ 3921) gives the State and county, and *191which, is a prior and superior lien to all other liens, is confined by the terms of the statute, — “for the payment of the taxes which may be assessed against the owner, or upon the property, during that year for the use of the State” and county. But, the sale of the land for the State and county taxes may have been made in such a manner as to be ineffectual to pass the title to the purchaser, in which case, without more, the owner could ‘sue the purchaser and recover the land, although the taxes due the State and county had been fully paid by the purchaser. The legislature sought to remedy this hardship and injustice, and by said section 4078 (597) of the Code, above referred to, provided, so far as the purchaser’s interests are concerned, fob keeping the State and county lien alive for the benefit of the purchaser, when the sale was ineffectual to pass title to the purchaser, and assigned it to him, for his security, though the State and county, having been fully paid, have no pecuniary interest in the matter. The legislature recognized the fact, that it would be most unjust for the owner to recover his land from such purchaser, on account of the irregularity of the sale rrnder which it was sold for taxes, and not refund to him the taxes, costs and expenses of the sale, for which he, the owner, was liable and should have paid.",
"Otherwise, owners of taxable property would be encouraged not to pay their taxes, and speculate on the chances,— far more than equal, — of a recovery of the land from the purchaser, because of irregularities in the assessment and sale. So it -was, by that and other sections of the Code, the State has sought to protect purchasers at tax sales in providing a security and a remedy for the money they have paid out for delinquent owners, when the title they acquired from the State was invalid, because of irregularities committed by the officers of the State. In so doing, the owner is not injured, the purchaser is protected, and the general policy of the State to encourage the purchase of property for delinquent taxes, promoted.",
"The point to be emphasized, and not overlooked in every case is, that the lien of the State and county, assigned by the terms of the statute to a purchaser, is a yearly one, and exists in *192no instance, except for the taxes assessed and payable for the particular year or years for which the property was .sold. Several years’ taxes and liens therefor may exist, before the sale for some reason may have occurred, but the liens and taxes for each year are separate and distinct. So it is, that a purchaser has and enjoys the benefits of this lien, to the full extent for which it was bestowed, and may enforce it for his reimbursement for the amounts he has' paid the State and county for the owner, — in case the sale was ineffectual to pass the title to him, but for no other reason. If the sale was legal, he acquired the title and needed and acquired no lien from the State and county. Here appears the first concern of the State for the protection of purchasers at tax sales, and the provisions enacted for their benefit in securing to them the amounts they have paid at the sale, which delinquent owners owed and were under duty to pay.",
"It may be added in this connection, as a further safeguard to tax purchasers, that section 4081 (599) entitles the purchaser of land at a tax sale, or any one claiming under him, after the expiration of six months from the date of sale, to maintain an action of ejectment or statutory action in the nature of ejectment, or of unlawful detainer for the recovery of the possession of the land, to be held by him, subject only to the right of redemption bestowed by the statute on the owner.",
"As another remedial safeguard to the purchaser, the legislature further provided, that “No action for the recovery of real estate sold for taxes shall lie, unless the samé is brought within three years from the date when the purchaser became entitled to demand a deed therefor,” etc. — Code, § 4089; Capehart v. Guffey, 130 Ala. 425. But, as we have stated, so far as the lien of the State and county is concerned, it exists and is provided for and is assigned to the purchaser, only for the taxes of the particular year or years for which the land was sold. Here the legislature might have rested without other provisions on the subject, leaving its revenue system in this regard, incomplete. It was manifest, how*193ever, thal the titles of purchasers might and wonld he disputed by owners, and that suits would he brought to test the validity of the assessment and sale of lands for taxes. To meet such contingencies, the legislature took another step forward, and provided still ampler legislation for their protection, in the enactment of othei* provisions. It occurred to the legislative mind,, that a purchaser, while he had assigned to him by statute the lien of the State and county to protect him in the purchase of the land when originally sold, to the extent of what he then paid, might, under the presumption that he had acquired a good title, go forward thereafter and discharge assessments against the property in future years, which amounts, in case the original sale was declared invalid, should he refunded to him.",
"For relief in such cases, section 4083 of the Code was adopted providing: “If, in any suit brought by the purchaser or other person claiming under him to recover lands sold for taxes, a recovery is defeated on the ground that the sale was invalid for any other reason than that the taxes were not due, the court shall forthwith., on the motion of the plaintiff, impanel a jury to ascertain the amount of taxes for which the lands were liable at the time of the sale, and for the payment of which they were sold, with interest thereon from the date of sale, and the amount of such taxes on the lands, if any, as the plaintiff, or the person under whom he claims, has, since such sale, lawfully paid, Avith interest thereon from the date of such payment, the interest- on both amounts to he computed at the rate of tAvelve per cent per annum; and the court shall, thereupon, render judgment against the defendant in favor of the plaintiff for the amount ascertained by the jury, and the costs of suit, Avhich judgment shall constitute a lien on the lands sued for, and payment thereof may be (ui forced as in other cases.” — Code, ¡j 4083. The next section, 4084, makes proAdsion for the payment of the purchaser, or other person claiming under 'him, Avhen sued for possession hv the OAvner, and the purchaser claims and defends under his tax title, and his defense fails on the ground that the sale Avas invalid for any other reason than that the taxes were not due, *194and the plaintiff recovers.",
"Provision is then made for the ascertainment of the amounts paid by the purchaser, with interest at 12. per cent per annum, for which he is to have a judgment and lien, as provided in the other section. These sections, going further than section 4078, as to a lien for which the lands were sold, but including all taxes, State, county and municipal which the purchaser may, since the sale, have paid on the property, give in addition a lien on it for the whole sum, for his indemnification and reimbursement. — Turner v. White, 97 Ala. 545; Cobb v. Vary, 120 Ala. 263. These sections are cumulative of rights and remedies as provided in said sections 3921 and 4078. The latter sections (4083 and 4084) themselves confer a lien for the purposes in them specified, but this lien is distinct from the first one bestowed; and a full and ample remedy is provided in said last named sections for suits arising under them. The right here bestowed was a new one, theretofore not existing, and the remedy for its enforcement is provided in the same statute which created the. right. Under these two sections, as we have said, the lien is created distinct from that given to the State under the former 'section, 3921.",
"It does not arise and is not bestowed, except at the end and as the result of a judgment in ejectment, and it is, then, and not before, the judgment which constitutes a lien on the lands sued for arises. They are as distinct as two mortgages on the same land are. They are bestowed on different persons', 'at different times\", on different conditions and the latter has a 12 per cent penalty by way of interest, not attached to the former, and embraces municipal taxes, which the lien given the State by statute does not cover. When this new right is sought to be enforced, the specific remedy if provided by statute must be pursued, and chancery has no jurisdiction to enforce it. Authorities supra.",
"This suit is instituted primarily not to enforce the purchaser’s lien to it by the State for the purchase money, etc., paid at the tax sale for the year 1893. Its chief object is to enforce the lien for taxes for sub*195sequent years, when no suck lien exists, and cannot exist, except at the end of an ejectment suit, and a judgment rendered therein, in favor of the complainant, as provided in said section 4083. It may be, if the proceeding had been to enforce the lien of the State for the year 1893, assigned under the statute to complainant, that the chancery court, by virtue of its jurisdiction generally to enforce liens, when no other adequate, legal remedy exists or is provided, would have had jurisdiction to entertain the action. — Westmoreland v. Trousdale, 60 Ala. 448; Carmen v. Ala. Nat. Bank, 101 Ala. 189.",
"But that case is not before us. It results that the decree of the court below is erroneous, and must be reversed. The judgment of this court heretofore rendered reversing the decree and dismissing the bill, will be set aside, and the judgment will now be rendered, reversing the decree below and remanding the cause. Reversed and remanded."
]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 14-7885
JUSTIN COTE-STOKES,
Plaintiff - Appellant,
v.
S. G. SATTERTHWAITE, Norfolk Deputy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:14-cv-01039-TSE-JFA)
Submitted: March 17, 2015 Decided: March 20, 2015
Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Justin Cote-Stokes, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Justin Cote-Stokes appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2012) action for failing to
comply with the district court’s prior order directing Cote-
Stokes to provide the district court with: (1) evidence that he
fully exhausted his administrative remedies; and (2) a signed
consent to collection of fees from his prison trust account. We
have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. Cote-Stokes v. Satterthwaite, No. 1:14-cv-01039-TSE-JFA
(E.D. Va. Dec. 1, 2014). We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
2 | 03-20-2015 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7885 JUSTIN COTE-STOKES, Plaintiff - Appellant, v. S. G. SATTERTHWAITE, Norfolk Deputy, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:14-cv-01039-TSE-JFA) Submitted: March 17, 2015 Decided: March 20, 2015 Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion.",
"Justin Cote-Stokes, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Justin Cote-Stokes appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2012) action for failing to comply with the district court’s prior order directing Cote- Stokes to provide the district court with: (1) evidence that he fully exhausted his administrative remedies; and (2) a signed consent to collection of fees from his prison trust account. We have reviewed the record and find no reversible error.",
"Accordingly, we affirm for the reasons stated by the district court. Cote-Stokes v. Satterthwaite, No. 1:14-cv-01039-TSE-JFA (E.D. Va. Dec. 1, 2014). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2788097/ | 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 279 The Islais Creek Reclamation District, situate wholly within the city and county of San Francisco, was created by the legislature by statute, without reference or notice to the inhabitants of the district (Stats. 1925, p. 87). Under the authority of the statute creating it the *Page 280 district commenced a proceeding in the superior court to determine the legality of its existence. The defaults of the state of California and of all persons other than the defendants Simpson were entered, and the cause was submitted on an agreed statement of facts. The lower court adjudged the plaintiff to be a legal reclamation district, duly created and organized, and having the statutory powers and authority conferred upon it. The defendants Simpson have appealed, contending that the act creating the district, by imposing a tax upon their lands, violates the provisions of the state and federal constitutions and amounts to a taking of property without due process of law. The appellants who are owners of real property within the boundaries of the district, concede, as they must, that the creation of a reclamation district is an exercise of the police power of the state, and that the legislature, which has the power to create, is presumed to act with knowledge of the facts and upon a determination of the benefits to the land included within the boundaries of such a district by the proposed work of reclamation. (See People ex rel. Chapman v. SacramentoDrainage Dist., 155 Cal. 373 [103 P. 207].) They also concede the full weight of authority to the effect that an act of the legislature should not be declared unconstitutional by the courts unless its provisions are clearly violative of some provision of the constitution, and recognize that the courts of this state have liberally construed acts of the legislature creating reclamation and other improvement districts, because of the public benefit derived therefrom. (In re Bonds of MaderaIrr. Dist., 92 Cal. 296, 311 et seq. [27 Am. St. Rep. 106, 14 L.R.A. 755, 28 P. 272, 675].) After making these concessions, however, and arguing from a premise that "the original purpose of reclamation districts was the unwatering of lands and in the beginning of such legislation had application more especially to agricultural lands," and that "reclamation is practically synonymous with drainage," appellants contend that, in enacting the present statute, the legislature has distorted the "original purpose for which reclamation districts were created." Assuming some other word than "reclamation" might have been used, such, for instance, as "improvement," in describing the nature of the district created, we do not seriously regard the appellants' *Page 281 contention. The purpose and scope of the act are clearly discernible from a reading of it. It is entitled, in part, "An act to aid commerce and navigation by authorizing certain improvements in and about Islais creek and as a means thereof creating a reclamation district to be called and known as the `Islais creek reclamation district,' . . . and authorizing a method for the reclamation of the lands of said district. . . ." In section 1 it is declared that in order "to aid commerce and navigation it is necessary to dredge Islais creek in the city and county of San Francisco, to dredge the shoals in the bay of San Francisco lying off the mouth of Islais creek, and to reclaim the old salt marsh and tidelands now lying in the district hereinafter described so that they may become a useful adjunct to commerce and navigation . . . a reclamation district is hereby created. . . ." These purposes clearly bring the act creating the district within the scope of the power of the legislature. [4] Whatever "`tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community.'" (In re Bonds of Madera Irr.Dist., supra, at p. 314.) Commerce and navigation generally, and particularly in the harbor of San Francisco, will be benefited by the improvement contemplated by this act; but the drainage and reclamation of the lands, apart from any question of commerce or navigation, are in themselves a legitimate exercise of the police power of the state. (Gray v. Reclamation Dist.No. 1500, 174 Cal. 622, 638 [163 P. 1024].) By section 9 of the act, Islais Creek Reclamation District is given the power to reclaim and protect the lands of the district by making, constructing, and maintaining such fills, drains, canals, sluices, bulkheads, water-gates, levees, embankments, and pumping plants as, in the opinion of the trustees of the district, are or may be necessary to the general plans as decided upon by the trustees. It was within the power of the legislature, in creating the district by special act, to define the manner and plan and provide for the necessary works by which the contemplated reclamation *Page 282 should be carried out. (Reclamation Dist. v. Superior Court,171 Cal. 672, 678 [154 P. 845].) All assessments must be made for a public purpose. Appellants therefore argue that while it may be conceded to be of local benefit to create an industrial district where now is marsh-land, this is purely a private industrial enterprise or venture, the indirect benefit to the public from which should not be used as a cloak for the exercise of the police power of the state to impose a burden of taxation upon the lands of a citizen. This court said in In re Bonds of Madera Irr. Dist., supra, at p. 310, that "whenever it is apparent from the scope of the act that its object is for the benefit of the public, and that the means by which the benefit is to be attained are of a public character, the act will be upheld, even though incidental advantages may accrue to individuals beyond those enjoyed by the general public." It is no objection to the constitutionality of the statute that the public benefit which is to be subserved is practically limited to those in the district whose lands are to be protected. (Laguna etc. Dist. v. Martin Co., 144 Cal. 209, 217 [77 P. 933].) It may be assumed that the lands held in private ownership within the district, which, without the improvements contemplated by the creation of the district, will be marsh and overflowed lands, will be especially benefited by the contemplated improvement. But it may not be denied that the state has the power to impose upon the adjacent lands specially benefited by the work an assessment in proportion to such benefits to defray part of the costs. (People, etc., v.Sacramento Drainage Dist., supra.) Under the provisions of section 9 of the act the district may fill the land therein held in private ownership and the streets lying therein, and thereby raise them to the official street grades as the same may be now or hereafter legally established. Because the title does not specifically refer to the filling in of the lands and streets, appellants contend that the act is a violation of section 24, article IV of the constitution, which provides that every act shall embrace but one subject, which subject shall be expressed in its title. The objection is not well taken. The title is broad enough in its language to disclose that the general purpose of the act is to provide a scheme for the betterment of the lands lying within the described area. Such aspects of the reclamation *Page 283 and improvement of the land as are set forth in the act, if falling within and germane to the general purposes announced by the title, do not require expression in the title. (People,etc., v. Sacramento Drainage Dist., supra, at p. 384; People v. Jordan, 172 Cal. 391, 394 [156 P. 451]; Estate ofWellings, 192 Cal. 506, 519 [221 P. 628].) It was a stipulated fact in the case that the lands in this district were at one time all swamp and overflowed lands, or lands subject to overflow, and the greater part thereof are still of that character. The fact that they are not all of such character at the present time does not affect the validity of the district. Appellants did not attempt, in the court below, to show that their holdings in the district were not overflowed lands. Any attempt to show that fact would have been futile, for the legislature itself fixed the exterior boundaries of the district, and included the appellants' land therein. Its determination as to the property benefited and the property to be included in the district was final and conclusive. (Brookes v. City ofOakland, 160 Cal. 423, 427 [117 P. 433].) We have referred to but a few of the many cases sustaining the legality of the Islais Creek Reclamation District on all contentions advanced by appellants. We find nothing in the points raised by appellants which renders the statute creating the district obnoxious to either the state or the federal constitution. The judgment is affirmed. Preston, J., Curtis, J., Seawell, J., Langdon, J., Shenk, J., and Richards, J., concurred. *Page 284 | 07-05-2016 | [
"[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 279 The Islais Creek Reclamation District, situate wholly within the city and county of San Francisco, was created by the legislature by statute, without reference or notice to the inhabitants of the district (Stats. 1925, p. 87). Under the authority of the statute creating it the *Page 280 district commenced a proceeding in the superior court to determine the legality of its existence. The defaults of the state of California and of all persons other than the defendants Simpson were entered, and the cause was submitted on an agreed statement of facts.",
"The lower court adjudged the plaintiff to be a legal reclamation district, duly created and organized, and having the statutory powers and authority conferred upon it. The defendants Simpson have appealed, contending that the act creating the district, by imposing a tax upon their lands, violates the provisions of the state and federal constitutions and amounts to a taking of property without due process of law. The appellants who are owners of real property within the boundaries of the district, concede, as they must, that the creation of a reclamation district is an exercise of the police power of the state, and that the legislature, which has the power to create, is presumed to act with knowledge of the facts and upon a determination of the benefits to the land included within the boundaries of such a district by the proposed work of reclamation. (See People ex rel. Chapman v. SacramentoDrainage Dist., 155 Cal.",
"373 [103 P. 207].) They also concede the full weight of authority to the effect that an act of the legislature should not be declared unconstitutional by the courts unless its provisions are clearly violative of some provision of the constitution, and recognize that the courts of this state have liberally construed acts of the legislature creating reclamation and other improvement districts, because of the public benefit derived therefrom.",
"(In re Bonds of MaderaIrr. Dist., 92 Cal. 296, 311 et seq. [27 Am. St. Rep. 106, 14 L.R.A. 755, 28 P. 272, 675].) After making these concessions, however, and arguing from a premise that \"the original purpose of reclamation districts was the unwatering of lands and in the beginning of such legislation had application more especially to agricultural lands,\" and that \"reclamation is practically synonymous with drainage,\" appellants contend that, in enacting the present statute, the legislature has distorted the \"original purpose for which reclamation districts were created.\" Assuming some other word than \"reclamation\" might have been used, such, for instance, as \"improvement,\" in describing the nature of the district created, we do not seriously regard the appellants' *Page 281 contention. The purpose and scope of the act are clearly discernible from a reading of it. It is entitled, in part, \"An act to aid commerce and navigation by authorizing certain improvements in and about Islais creek and as a means thereof creating a reclamation district to be called and known as the `Islais creek reclamation district,' .",
". . and authorizing a method for the reclamation of the lands of said district. . . .\" In section 1 it is declared that in order \"to aid commerce and navigation it is necessary to dredge Islais creek in the city and county of San Francisco, to dredge the shoals in the bay of San Francisco lying off the mouth of Islais creek, and to reclaim the old salt marsh and tidelands now lying in the district hereinafter described so that they may become a useful adjunct to commerce and navigation . .",
". a reclamation district is hereby created. . . .\" These purposes clearly bring the act creating the district within the scope of the power of the legislature. [4] Whatever \"`tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community.'\" (In re Bonds of Madera Irr.Dist., supra, at p. 314.) Commerce and navigation generally, and particularly in the harbor of San Francisco, will be benefited by the improvement contemplated by this act; but the drainage and reclamation of the lands, apart from any question of commerce or navigation, are in themselves a legitimate exercise of the police power of the state. (Gray v. Reclamation Dist.No.",
"1500, 174 Cal. 622, 638 [163 P. 1024].) By section 9 of the act, Islais Creek Reclamation District is given the power to reclaim and protect the lands of the district by making, constructing, and maintaining such fills, drains, canals, sluices, bulkheads, water-gates, levees, embankments, and pumping plants as, in the opinion of the trustees of the district, are or may be necessary to the general plans as decided upon by the trustees. It was within the power of the legislature, in creating the district by special act, to define the manner and plan and provide for the necessary works by which the contemplated reclamation *Page 282 should be carried out. (Reclamation Dist. v. Superior Court,171 Cal. 672, 678 [154 P. 845].)",
"All assessments must be made for a public purpose. Appellants therefore argue that while it may be conceded to be of local benefit to create an industrial district where now is marsh-land, this is purely a private industrial enterprise or venture, the indirect benefit to the public from which should not be used as a cloak for the exercise of the police power of the state to impose a burden of taxation upon the lands of a citizen. This court said in In re Bonds of Madera Irr. Dist., supra, at p. 310, that \"whenever it is apparent from the scope of the act that its object is for the benefit of the public, and that the means by which the benefit is to be attained are of a public character, the act will be upheld, even though incidental advantages may accrue to individuals beyond those enjoyed by the general public.\" It is no objection to the constitutionality of the statute that the public benefit which is to be subserved is practically limited to those in the district whose lands are to be protected.",
"(Laguna etc. Dist. v. Martin Co., 144 Cal. 209, 217 [77 P. 933].) It may be assumed that the lands held in private ownership within the district, which, without the improvements contemplated by the creation of the district, will be marsh and overflowed lands, will be especially benefited by the contemplated improvement. But it may not be denied that the state has the power to impose upon the adjacent lands specially benefited by the work an assessment in proportion to such benefits to defray part of the costs. (People, etc., v.Sacramento Drainage Dist., supra.) Under the provisions of section 9 of the act the district may fill the land therein held in private ownership and the streets lying therein, and thereby raise them to the official street grades as the same may be now or hereafter legally established.",
"Because the title does not specifically refer to the filling in of the lands and streets, appellants contend that the act is a violation of section 24, article IV of the constitution, which provides that every act shall embrace but one subject, which subject shall be expressed in its title. The objection is not well taken. The title is broad enough in its language to disclose that the general purpose of the act is to provide a scheme for the betterment of the lands lying within the described area. Such aspects of the reclamation *Page 283 and improvement of the land as are set forth in the act, if falling within and germane to the general purposes announced by the title, do not require expression in the title. (People,etc., v. Sacramento Drainage Dist., supra, at p. 384; People v. Jordan, 172 Cal. 391, 394 [156 P. 451]; Estate ofWellings, 192 Cal. 506, 519 [221 P.",
"628].) It was a stipulated fact in the case that the lands in this district were at one time all swamp and overflowed lands, or lands subject to overflow, and the greater part thereof are still of that character. The fact that they are not all of such character at the present time does not affect the validity of the district. Appellants did not attempt, in the court below, to show that their holdings in the district were not overflowed lands. Any attempt to show that fact would have been futile, for the legislature itself fixed the exterior boundaries of the district, and included the appellants' land therein. Its determination as to the property benefited and the property to be included in the district was final and conclusive. (Brookes v. City ofOakland, 160 Cal. 423, 427 [117 P. 433].) We have referred to but a few of the many cases sustaining the legality of the Islais Creek Reclamation District on all contentions advanced by appellants. We find nothing in the points raised by appellants which renders the statute creating the district obnoxious to either the state or the federal constitution.",
"The judgment is affirmed. Preston, J., Curtis, J., Seawell, J., Langdon, J., Shenk, J., and Richards, J., concurred. *Page 284"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3309433/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION *Note in the following document: 1. Texts in italic bold format are limitations quoted either directly or conceptually from claims/descriptions disclosed in the instant application. 2. Texts in regular italic format are quoted directly from cited reference or Applicant’s arguments. 3. Texts with underlining are added by the Examiner for emphasis. 4. Texts with
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, with respect to Drawing Objection, see p.7, filed on 19 February 2021 have been fully considered and are persuasive. The previous Drawing Objection is withdrawn after Specification being amended. The amended specification has been entered. Applicant’s arguments, see p.8, filed on 19 February 2021, with respect to the rejection(s) of Claim(s) 1-20 under 35 USC §103 have been fully considered but are moot because the arguments do not apply to any of the references being used in the current rejection. The newly amended independent Claim(s) 1/8/15 is/are now rejected under 35 USC §103 as being unpatentable over Ritchey (US 5,495,576) in view of Haimovitch-Yogev et al. (US 2015/0319424 A1), Suzuki (US 2003/0231179 A1) and Areas et al. (US 2009/0274391 A1). Areas discloses the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object. See detailed rejections below.
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 of this title, 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.
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. 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. 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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ritchey (US 5,495,576) in view of Haimovitch-Yogev et al. (US 2015/0319424 A1), Suzuki (US 2003/0231179 A1) and Areas et al. (US 2009/0274391 A1). Regarding Claim 1, Ritchey discloses a method for generating a multi-view interactive (col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position) digital media representation in a virtual reality environment (col.2 lines 10-12: It is therefore the objective of this invention to provide a more versatile image based panoramic virtual reality and telepresence system and method) comprising: obtaining a plurality of images, wherein each image in the plurality of images has location information (col.17 lines 21-22: the being or object is tracked by positions sensors located on the real object) and an object (Fig.6: subject 13), wherein the plurality of images include at least a portion of overlapping subject matter FIG. 6 illustrates a plurality of arrays 36a-36f faced inward about a 3-D subject); fusing, via a processor, the plurality of images into a fusion of 3-D model segments (Fig.1 and col.7 lines 55-61: Signal processing means 3 preferably includes a first computer processing means 15 for sensor fusion of the resulting imagery signal Sa and shape data signal Sb. The first processing means operates on the signals Sa and Sb to combine shape and surface data of corresponding segments of the 3-D subject. The resulting 3-D model segments 26a are portions of the computer generated world model 14a) generating, via the processor, a virtual reality environment using the 3-D model segments (col.7 lines 33: the virtual reality/telepresence system) wherein the multi-view interactive (col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position) digital media representation is generated by fusing multiple images in the plurality of images, connected together in a three-dimensional spatial graph (col.2 lines 10-12: image based panoramic virtual reality), wherein the fusion of 3-D model segments wherein the multi-view interactive digital media representation is configured such that a user can navigate through and within the virtual reality environment to switch between multiple viewpoints of the fusion of 3-D model segments(col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position). Ritchey fails to disclose the fusion of 3-D model segments is a content model, wherein the content model includes a multi-view interactive digital media representation of the object. However Haimovitch-Yogev, in the same field of endeavor, discloses An interactive-player system for generating user-selectable novel views of an event on a viewing device ([0066]) and the system includes cameras for imaging the event with image frames (Abstract). Haimovitch-Yogev teaches the multi-view system includes an FES module for segmenting a foreground from the environment from image data of the image frames and constructing a 3D data representation (Abstract. Note FES stands for foreground/environment segmentation, see [0304]) and a user utilizes a segmentation and reconstruction (FES) module 319 of system 100 to execute a foreground/environment segmentation (FES) method 318 comprising one or more steps 322-328, and of which one or more steps are preferably performed in the numerical sequence ([0304]). The one or more steps 322-328 do not use polygon models (see Fig.10b-e). Therefore it would have been obvious to one ordinary person skilled in the art at the time of the filing to incorporate the teaching of Haimovitch-Yogev into that of Ritchey and to fuse, via a processor, the plurality of images into a content model, wherein the content model includes a multi-view interactive digital media representation of the object (the foreground); and generate, via the processor, a virtual reality environment using the content model, wherein the content model is generated directly from the plurality of images without using polygon model (Fig.10b-e) in order to render new photo-realistic images and video from user-selectable novel views that are not necessarily coincident with any of the views of the cameras as taught by Haimovitch-Yogev ([0005]). Ritchey modified by Haimovitch-Yogev fails to explicitly disclose wherein the user can directly rotate the content model with the virtual reality environment against a static context model background. However Suzuki, in the same field of endeavor, discloses an interactive virtual telepresence system that allows an Internet user to view three-dimensional objects from any perspective in a studio at a remote server (Abstract). Suzuki further discloses and shows in Fig.1 The studio 102 is populated with many cameras set at different viewpoints around the object, ... Each captured video frame typically includes a background, image that surrounds object 104 that needs to be removed from the scene by a background subtractor 122-124 ([0049]). Suzuki discloses A silhouette is computed from the background subtracted images by a silhouette processor 126 ([0050]), The intersections of rays created by projecting through silhouettes are computed by an intersection processor 128. ... The output are voxels ([0051]), and A voxel calculation for the voxels representing object 104 are done by a voxel processor 130 ([0052]). Finally, The processing of a volumetric dataset begins by stacking the slices according to the interpixel and interslice distances so that the data exists in a "virtual" coordinate space which accurately reflects the real world dimensions of the originally sampled volume. Additional slices can be inserted between the dataset's original slices so that the entire volume in computer memory is represented as one solid block of data. The pixels in such block can be processed as volume pixels (voxels) such that a volume can be translated and rotated and a rendering of the dataset can be obtained ([0053]). Therefore it would have been obvious to one ordinary person skilled in the art at the time of the filing to incorporate the teaching of Suzuki into that of Ritchey modified by Haimovitch-Yogev and to add the limitation of wherein the user can directly rotate the content model with the virtual reality environment against a static (It would have been obvious to a POSITA to keep the context model which is related to background to be static to make the rotation more obvious) context model background in order to let a user to manipulate the object, which looks to the user like three-dimension rotation of the real object as taught by Suzuki ([0034]). Ritchey as modified above fails to further discloses wherein the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object. However Areas discloses generating a multi-view interactive digital media representation by fusing each of the objects in the plurality of images into a single content model object ([0022]: the system 100 can include a 3D environment 106 that can include the two or more 2D images each having a specific perspective or point-of-view. In particular, the 2D images can be aggregated or collected in order to construct a 3D image or object, wherein the collection and/or aggregation can be based upon each 2D image perspective. Thus, the 2D images can be constructed in order to provide a 3D image within the 3D environment that can be explored, navigated, browsed, etc. [0023]: For example, a 3D environment can be explored in which the 3D image can be a cube. This cube can be created by combining a first image of a first face of the cube (e.g., the perspective is facing the first face of the cube), a second image of a second face of the cube (e.g., the perspective is facing the second face of the cube), a third image of a third face of the cube (e.g., the perspective is facing the third face of the cube), a fourth image of a fourth face of the cube (e.g., the perspective is facing the fourth face of the cube), a fifth image of a fifth face of the cube (e.g., the perspective is facing the fifth face of the cube), and a sixth image of a sixth face of the cube (e.g., the perspective is facing the sixth face of the cube). By aggregating the images of the cube based on their perspectives or point-of-views, a 3D image of the cube can be created within the 3D environment 106 which can be displayed, viewed, navigated, browsed, and the like). Therefore it would have been obvious to one ordinary person skilled in the art before the effective filing date of the claimed invention to incorporate the teaching of Areas into that of Ritchey as modified and to add the limitation of wherein the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object in order to provide more information to users as taught by Areas ([0003]).
Regarding Claim 2, Ritchey and Haimovitch-Yogev further discloses wherein the plurality of images is obtained from a plurality of users (Ritchey col.12 lines 11-13: Standard video compression devices can be incorporated into the camera to compress the signal to aid in the storage, transmission, and processing of each image and a wherein the plurality of images is obtained from a plurality of users). The same reason to combine as taught in Claim 1 is incorporated herein.
Regarding Claim 3, Ritchey discloses wherein the virtual reality environment is enhanced using one or more of automatic frame selection, stabilization, view interpolation, filters, and compression (col.26 lines 33-36: The low-level image processor may also perform certain filtering operations on the digital image such as deblurring, histogram equalization, and edge enhancement).
Regarding Claim 4, Ritchey discloses wherein the plurality of images includes images with different temporal information (col.1 lines 38-42: The electrical section of the camera is structured to convert the visual images received by the image processor into electrical video signals Sa such that the information is in a format that is compatible with standard video processing equipment. Video inherently includes temporal information).
Regarding Claim 5, Ritchey discloses wherein the static context model background includes a locally concave surround view, the surround view surrounding the content model in a 360 degree navigable environment (Fig.2 and col.1 lines 9-13: FIG. 2 illustrates a panoramic camera system 1 of prior art in which a plurality of image sensors 28a-28f and audio sensors (not shown) are faced outward about a point or area to record a contiguous surrounding visual subject scene 13c).
6, Ritchey discloses wherein the content model includes a locally convex surround view of the object (Fig.7 and col.10 lines 31-34: FIG. 7 illustrates sensor arrays which may be faced both inward and outward to record a subject. Arrays are positioned adjacent to one another to form a panoramic array assembly 44).
Regarding Claim 7, Ritchey discloses wherein the virtual reality environment is configured such that the user can appear to be closer or farther to the surround views by physically moving through space (col.20 lines 40-43: Based on such manipulation, the spatial coordinates of the virtual model can of course be changed to give the impression of movement relative to the viewer).
Regarding Claims 8-14, Claims 8-14 are in similar scopes to Claims 1-7 except in the format of “system” with computer and memory. Ritchey discloses computer and memory (col.8 lines 10-13: Signal processing means 15, 16, 17, 18, and 23 (FIG. 17) include a central processing unit, terminal bus, communication ports, memory, and the like typical to a conventional computer(s)). Therefore the rejection to Claims 1-7 are also applied to Claims 8-14.
Regarding Claims 15 and 16-20, Claims 15 and 16-20 are in similar scopes to Claims 1 and 3-7 except in the format of “non-transitory computer readable medium”. Therefore the rejection to Claims 1 and 3-7 are also applied to Claims 15 and 16-20. 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.
/YINGCHUN HE/Primary Examiner, Art Unit 2613 | 2021-04-01T10:38:52 | [
"DETAILED ACTION *Note in the following document: 1. Texts in italic bold format are limitations quoted either directly or conceptually from claims/descriptions disclosed in the instant application. 2. Texts in regular italic format are quoted directly from cited reference or Applicant’s arguments. 3. Texts with underlining are added by the Examiner for emphasis. 4. Texts with 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, with respect to Drawing Objection, see p.7, filed on 19 February 2021 have been fully considered and are persuasive. The previous Drawing Objection is withdrawn after Specification being amended. The amended specification has been entered. Applicant’s arguments, see p.8, filed on 19 February 2021, with respect to the rejection(s) of Claim(s) 1-20 under 35 USC §103 have been fully considered but are moot because the arguments do not apply to any of the references being used in the current rejection.",
"The newly amended independent Claim(s) 1/8/15 is/are now rejected under 35 USC §103 as being unpatentable over Ritchey (US 5,495,576) in view of Haimovitch-Yogev et al. (US 2015/0319424 A1), Suzuki (US 2003/0231179 A1) and Areas et al. (US 2009/0274391 A1). Areas discloses the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object. See detailed rejections below. 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 of this title, 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. 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. 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. 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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ritchey (US 5,495,576) in view of Haimovitch-Yogev et al. (US 2015/0319424 A1), Suzuki (US 2003/0231179 A1) and Areas et al. (US 2009/0274391 A1). Regarding Claim 1, Ritchey discloses a method for generating a multi-view interactive (col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position) digital media representation in a virtual reality environment (col.2 lines 10-12: It is therefore the objective of this invention to provide a more versatile image based panoramic virtual reality and telepresence system and method) comprising: obtaining a plurality of images, wherein each image in the plurality of images has location information (col.17 lines 21-22: the being or object is tracked by positions sensors located on the real object) and an object (Fig.6: subject 13), wherein the plurality of images include at least a portion of overlapping subject matter FIG.",
"6 illustrates a plurality of arrays 36a-36f faced inward about a 3-D subject); fusing, via a processor, the plurality of images into a fusion of 3-D model segments (Fig.1 and col.7 lines 55-61: Signal processing means 3 preferably includes a first computer processing means 15 for sensor fusion of the resulting imagery signal Sa and shape data signal Sb. The first processing means operates on the signals Sa and Sb to combine shape and surface data of corresponding segments of the 3-D subject. The resulting 3-D model segments 26a are portions of the computer generated world model 14a) generating, via the processor, a virtual reality environment using the 3-D model segments (col.7 lines 33: the virtual reality/telepresence system) wherein the multi-view interactive (col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position) digital media representation is generated by fusing multiple images in the plurality of images, connected together in a three-dimensional spatial graph (col.2 lines 10-12: image based panoramic virtual reality), wherein the fusion of 3-D model segments wherein the multi-view interactive digital media representation is configured such that a user can navigate through and within the virtual reality environment to switch between multiple viewpoints of the fusion of 3-D model segments(col.9 lines 52-56: Updating the model typically involves the participant moving a virtual object in the model with his hand, or changing the viewpoint of the displayed scene based upon a change in the participants head 55 position).",
"Ritchey fails to disclose the fusion of 3-D model segments is a content model, wherein the content model includes a multi-view interactive digital media representation of the object. However Haimovitch-Yogev, in the same field of endeavor, discloses An interactive-player system for generating user-selectable novel views of an event on a viewing device ([0066]) and the system includes cameras for imaging the event with image frames (Abstract). Haimovitch-Yogev teaches the multi-view system includes an FES module for segmenting a foreground from the environment from image data of the image frames and constructing a 3D data representation (Abstract. Note FES stands for foreground/environment segmentation, see [0304]) and a user utilizes a segmentation and reconstruction (FES) module 319 of system 100 to execute a foreground/environment segmentation (FES) method 318 comprising one or more steps 322-328, and of which one or more steps are preferably performed in the numerical sequence ([0304]). The one or more steps 322-328 do not use polygon models (see Fig.10b-e).",
"Therefore it would have been obvious to one ordinary person skilled in the art at the time of the filing to incorporate the teaching of Haimovitch-Yogev into that of Ritchey and to fuse, via a processor, the plurality of images into a content model, wherein the content model includes a multi-view interactive digital media representation of the object (the foreground); and generate, via the processor, a virtual reality environment using the content model, wherein the content model is generated directly from the plurality of images without using polygon model (Fig.10b-e) in order to render new photo-realistic images and video from user-selectable novel views that are not necessarily coincident with any of the views of the cameras as taught by Haimovitch-Yogev ([0005]).",
"Ritchey modified by Haimovitch-Yogev fails to explicitly disclose wherein the user can directly rotate the content model with the virtual reality environment against a static context model background. However Suzuki, in the same field of endeavor, discloses an interactive virtual telepresence system that allows an Internet user to view three-dimensional objects from any perspective in a studio at a remote server (Abstract). Suzuki further discloses and shows in Fig.1 The studio 102 is populated with many cameras set at different viewpoints around the object, ... Each captured video frame typically includes a background, image that surrounds object 104 that needs to be removed from the scene by a background subtractor 122-124 ([0049]). Suzuki discloses A silhouette is computed from the background subtracted images by a silhouette processor 126 ([0050]), The intersections of rays created by projecting through silhouettes are computed by an intersection processor 128.",
"... The output are voxels ([0051]), and A voxel calculation for the voxels representing object 104 are done by a voxel processor 130 ([0052]). Finally, The processing of a volumetric dataset begins by stacking the slices according to the interpixel and interslice distances so that the data exists in a \"virtual\" coordinate space which accurately reflects the real world dimensions of the originally sampled volume. Additional slices can be inserted between the dataset's original slices so that the entire volume in computer memory is represented as one solid block of data. The pixels in such block can be processed as volume pixels (voxels) such that a volume can be translated and rotated and a rendering of the dataset can be obtained ([0053]). Therefore it would have been obvious to one ordinary person skilled in the art at the time of the filing to incorporate the teaching of Suzuki into that of Ritchey modified by Haimovitch-Yogev and to add the limitation of wherein the user can directly rotate the content model with the virtual reality environment against a static (It would have been obvious to a POSITA to keep the context model which is related to background to be static to make the rotation more obvious) context model background in order to let a user to manipulate the object, which looks to the user like three-dimension rotation of the real object as taught by Suzuki ([0034]).",
"Ritchey as modified above fails to further discloses wherein the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object. However Areas discloses generating a multi-view interactive digital media representation by fusing each of the objects in the plurality of images into a single content model object ([0022]: the system 100 can include a 3D environment 106 that can include the two or more 2D images each having a specific perspective or point-of-view. In particular, the 2D images can be aggregated or collected in order to construct a 3D image or object, wherein the collection and/or aggregation can be based upon each 2D image perspective.",
"Thus, the 2D images can be constructed in order to provide a 3D image within the 3D environment that can be explored, navigated, browsed, etc. [0023]: For example, a 3D environment can be explored in which the 3D image can be a cube. This cube can be created by combining a first image of a first face of the cube (e.g., the perspective is facing the first face of the cube), a second image of a second face of the cube (e.g., the perspective is facing the second face of the cube), a third image of a third face of the cube (e.g., the perspective is facing the third face of the cube), a fourth image of a fourth face of the cube (e.g., the perspective is facing the fourth face of the cube), a fifth image of a fifth face of the cube (e.g., the perspective is facing the fifth face of the cube), and a sixth image of a sixth face of the cube (e.g., the perspective is facing the sixth face of the cube).",
"By aggregating the images of the cube based on their perspectives or point-of-views, a 3D image of the cube can be created within the 3D environment 106 which can be displayed, viewed, navigated, browsed, and the like). Therefore it would have been obvious to one ordinary person skilled in the art before the effective filing date of the claimed invention to incorporate the teaching of Areas into that of Ritchey as modified and to add the limitation of wherein the multi-view interactive digital media representation is generated by fusing each of the objects in the plurality of images into a single content model object in order to provide more information to users as taught by Areas ([0003]). Regarding Claim 2, Ritchey and Haimovitch-Yogev further discloses wherein the plurality of images is obtained from a plurality of users (Ritchey col.12 lines 11-13: Standard video compression devices can be incorporated into the camera to compress the signal to aid in the storage, transmission, and processing of each image and a wherein the plurality of images is obtained from a plurality of users).",
"The same reason to combine as taught in Claim 1 is incorporated herein. Regarding Claim 3, Ritchey discloses wherein the virtual reality environment is enhanced using one or more of automatic frame selection, stabilization, view interpolation, filters, and compression (col.26 lines 33-36: The low-level image processor may also perform certain filtering operations on the digital image such as deblurring, histogram equalization, and edge enhancement). Regarding Claim 4, Ritchey discloses wherein the plurality of images includes images with different temporal information (col.1 lines 38-42: The electrical section of the camera is structured to convert the visual images received by the image processor into electrical video signals Sa such that the information is in a format that is compatible with standard video processing equipment.",
"Video inherently includes temporal information). Regarding Claim 5, Ritchey discloses wherein the static context model background includes a locally concave surround view, the surround view surrounding the content model in a 360 degree navigable environment (Fig.2 and col.1 lines 9-13: FIG. 2 illustrates a panoramic camera system 1 of prior art in which a plurality of image sensors 28a-28f and audio sensors (not shown) are faced outward about a point or area to record a contiguous surrounding visual subject scene 13c).",
"6, Ritchey discloses wherein the content model includes a locally convex surround view of the object (Fig.7 and col.10 lines 31-34: FIG. 7 illustrates sensor arrays which may be faced both inward and outward to record a subject. Arrays are positioned adjacent to one another to form a panoramic array assembly 44). Regarding Claim 7, Ritchey discloses wherein the virtual reality environment is configured such that the user can appear to be closer or farther to the surround views by physically moving through space (col.20 lines 40-43: Based on such manipulation, the spatial coordinates of the virtual model can of course be changed to give the impression of movement relative to the viewer). Regarding Claims 8-14, Claims 8-14 are in similar scopes to Claims 1-7 except in the format of “system” with computer and memory. Ritchey discloses computer and memory (col.8 lines 10-13: Signal processing means 15, 16, 17, 18, and 23 (FIG.",
"17) include a central processing unit, terminal bus, communication ports, memory, and the like typical to a conventional computer(s)). Therefore the rejection to Claims 1-7 are also applied to Claims 8-14. Regarding Claims 15 and 16-20, Claims 15 and 16-20 are in similar scopes to Claims 1 and 3-7 except in the format of “non-transitory computer readable medium”. Therefore the rejection to Claims 1 and 3-7 are also applied to Claims 15 and 16-20. 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. /YINGCHUN HE/Primary Examiner, Art Unit 2613"
]
| 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 |
Case MDL No. 2997 Document 1-26 Filed 03/08/21 Page 1 of 36
Exhibit 23 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 1 Page of 34 2PageID# of 36 1
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
JAMIE MOORE, individually and on : behalf of all others similarly situated, : Case No. : Plaintiff, : Jury Trial Demanded : v. : : GERBER PRODUCTS COMPANY, : : : Defendant. : :
CLASS ACTION COMPLAINT
Plaintiff Jamie Moore, on behalf of herself and all others similarly situated, by her
undersigned attorneys, brings this Class Action Complaint against Defendant, Gerber Products
Company (hereinafter “Gerber”), for its negligent, reckless, and/or intentional practice of
misrepresenting and failing to fully disclose the presence of toxic metals in its baby food products
sold throughout the United States. Plaintiff seeks both injunctive and monetary relief on behalf of
the proposed Classes (defined below), including requiring full disclosure of all such substances in
Defendant’s marketing and advertising, and restoring monies to the members of the proposed
Classes. Plaintiff alleges the following based upon personal knowledge as to herself and her own
actions, and, as to all other matters, alleges, upon information and belief and investigation of her
counsel. Plaintiff believes that substantial evidentiary support will exist for the allegations set
forth herein after a reasonable opportunity for discovery.
//
//
1 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 2 Page of 34 3PageID# of 36 2
INTRODUCTION
1. This is a consumer class action brought individually by Plaintiff and on behalf of
all persons in the proposed Class and subclass defined below, all of whom purchased one or more
baby food products manufactured by Gerber.1
2. Gerber is an American manufacturer of Baby Food Products. Gerber claims to be
one of the “world’s most trusted name[s] in baby food.”
http://www.gerber.com/nestle_nutrition/default.aspx. Gerber sells nearly 200 different baby food
products in 80 countries. Gerber was founded with the mission to “give babies the best start in
life.” http://www.gerber.com/about-us. As of 2017, Gerber controlled 61 percent of the baby food
market in the United States. See “Growing Up Gerber: 5 Questions with CMO Aileen Stocks.”
https://www.brandchannel.com/2017/04/15/5-questions-gerber-041517
(April 15, 2017).
3. Parents like Plaintiff trust manufacturers like Defendant Gerber to sell baby food
that is safe, nutritious, and free from harmful toxins, contaminants and chemicals. Parents
purchase Baby Food Products with the expectation that they are free from heavy metals, substances
known to have significant, harmful health effects.
4. Because consumers do not have the scientific knowledge necessary to determine
whether the Baby Food Products contain heavy metals or to know or ascertain the true nature of
1 The term “Baby Food Products” refers to all the Gerber baby food products that contain heavy metals, including the Gerber products purchased by Plaintiff, specifically: Gerber Organic Sitter 2nd Foods Pear Blueberry Apple with Avocado; Gerber Organic Sitter 2nd Foods Banana Blueberry Blackberry Oatmeal; Gerber Organic Toddlers Apple Mango Raspberry Oatmeal with Avocado; and Gerber Natural Sitter 2nd Foods Apple Zucchini Peach with Vitamin C. Plaintiff reserves the right to amend this definition upon completion of discovery. 2 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 3 Page of 34 4PageID# of 36 3
the ingredients in the Baby Food Products, they must rely on Defendant to honestly represent the
contents of its products.
5. On February 4, 2021, the U.S. House of Representatives’ Subcommittee on
Economic and Consumer Policy, Committee on Oversight and Reform, released the results of an
investigation into leading baby food manufacturers in the United States relating to alleged high
amounts of detrimental metals in baby food. The report entitled “Baby Foods Are Tainted with
Dangerous Levels of Arsenic, Lead, Cadmium and Mercury,” (“Subcommittee Report”) revealed
that “[i]nternal company standards permit dangerously high levels of toxic heavy metals, and
documents revealed that the manufacturers have often sold foods that exceeded those levels.”
Subcommittee Report at 4.
6. Heavy metals are not listed as an ingredient on the product labels of the Baby Food
Products. Nor does Defendant warn of the potential presence of heavy metals in the Baby Food
Products. Unbeknownst to Plaintiff and other members of the proposed Class and subclass, and
contrary to the representations on marketing and advertising, the Baby Food Products contain toxic
heavy metals, including inorganic arsenic, lead, cadmium, and mercury, at levels above what is
considered safe for babies. Had the presence of these heavy metals been disclosed to Plaintiff and
the members of the proposed Class and subclass prior to their purchase of the Baby Food Products,
they would not have purchased the Baby Food Products. Further, absent accurate marketing and
advertising in the future, there is no way for Plaintiff or the members of the proposed Class and
subclass to determine whether Defendant has reformulated or removed the heavy metals from its
Baby Food Products and, thus, will be unable to rely on Defendant’s representations.
7. Defendant knows that its customers trust the quality of its baby food products and
that these customers expect Defendant’s products to be free of harmful ingredients such as heavy
3 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 4 Page of 34 5PageID# of 36 4
metals. Gerber is also aware that many consumers seek out and purchase premium baby foods
that contain high quality ingredients, free of toxins, contaminants or chemicals and that these
consumers will pay more for baby foods that they believe possess these qualities.
8. Defendant’s promises, warranties, pricing, statements, claims, packaging,
marketing and advertising center on representations that are intended to, and do, convey to
consumers that its products, including its Baby Food Products, possess certain qualities and
characteristics.
9. No reasonable consumer seeing Defendant’s marketing and packaging would
expect the Baby Food Products to contain heavy metals or other contaminants. Reasonable
consumers, like Plaintiff, would consider the inclusion of heavy metals or other toxins or
contaminants a material fact when considering what baby food products to purchase.
10. Defendant intended for consumers like Plaintiff to rely on its marketing, and
reasonable consumers did rely on Gerber’s marketing. As detailed herein, because the Baby Food
Products contained undisclosed toxins, contaminants, and/or heavy metals, the Baby Food
Products’ packaging and marketing is deceptive, misleading, unfair and/or false.
11. Defendant’s Baby Food Products and corresponding marketing do not have a
disclaimer or warning that the items may contain heavy metals or other undesirable toxins or
contaminants that can accumulate in a child’s body over time and cause deleterious effects.
12. Defendant’s wrongful marketing and advertising, which includes misleading,
deceptive, unfair, and false marketing and omissions, allowed the company to capitalize on, and
reap enormous profits from, consumers who paid the purchase price or a premium price for the
Baby Food Products that were not sold as advertised. Defendant continues to wrongfully induce
consumers to purchase its Baby Food Products that are not as advertised.
4 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 5 Page of 34 6PageID# of 36 5
13. Plaintiff and the members of the proposed Class and subclass thus bring claims for
consumer fraud and seek damages, injunctive and declaratory relief, interest, costs, and attorneys’
fees.
THE PARTIES
14. Plaintiff Jamie Moore is, and at all relevant times hereto has been, a citizen of the
State of Colorado and is a member of the proposed class and subclass defined herein. She
purchased four of Defendant’s products at issue in the Complaint: Gerber Organic Sitter 2nd Foods
Pear Blueberry Apple with Avocado; Gerber Organic Sitter 2nd Foods Banana Blueberry
Blackberry Oatmeal; Gerber Organic Toddlers Apple Mango Raspberry Oatmeal with Avocado;
Gerber Natural Sitter 2nd Foods Apple Zucchini Peach with Vitamin C. Plaintiff last purchased
these products for her child from stores in El Paso County, Colorado. Prior to purchasing the
products, Plaintiff saw Defendant’s advertising, marketing and nutritional claims, upon which she
relied in deciding to purchase these products.
15. Plaintiff believed she was feeding her children healthy, nutritious foods during the
time Plaintiff purchased and fed her children the Baby Food Products. Due to the false and
misleading claims and omissions by Defendant as described herein, Plaintiff was unaware that the
Baby Food Products contained any level of toxic heavy metals, and Plaintiff would not have
purchased the food if that information had been fully disclosed.
16. As a result of Defendant’s negligent, reckless, and/or knowingly deceptive conduct,
Plaintiff was injured when she paid the purchase price or a price premium for the Baby Food
Products that did not deliver what they promised. Plaintiff paid the purchase price with the
assumption that the Baby Food Products’ marketing and advertising was accurate and that the
5 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 6 Page of 34 7PageID# of 36 6
Products were free of heavy metals and safe for children to ingest. Plaintiff would not have paid
this money had she known that the Baby Food Products contained excessive levels of heavy metals.
17. Defendant Gerber Products Company is a Michigan corporation with its principal
place of business located in Arlington, Virginia. Gerber began making pre-prepared baby food in
1928. Gerber was purchased by Nestlé in 2007. Gerber is now a subsidiary of Nestlé S.A., and
its sister company, Nestlé USA is incorporated in Delaware and also headquartered in Arlington,
Virginia. Gerber is currently the market leader for infant foods in the United States.
https://www.nestle.com/aboutus/history/nestle-company-history/gerber. Defendant formulates,
develops, manufactures, distributes, markets, advertises, and sells its Baby Food Products
throughout the United States.
JURISDICTION AND VENUE
18. This Court has subject matter jurisdiction under the Class Action Fairness Act of
2005 (“CAFA”), 28 U.S.C. § 1332(d)(2), because the claims of the proposed members of the
Classes exceed $5,000,000 and because Defendant is a citizen of a different state than one or more
members of the proposed Classes.
19. This Court has personal jurisdiction over Defendant because Defendant maintains
its corporate headquarters here. In addition, Defendant regularly sells and markets its Baby Food
Products in this District, and because Defendant otherwise conducts business in this District and/or
under the stream of commerce doctrine by allowing its products, including the Baby Food
Products, to be sold in this District.
20. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial
portion of the events complained of herein took place in this District, and this Court has jurisdiction
6 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 7 Page of 34 8PageID# of 36 7
over Defendant. Defendant has intentionally availed itself of the laws and markets of this District,
and Defendant is subject to personal jurisdiction in this District.
FACTUAL ALLEGATIONS
21. Defendant manufactures, distributes, markets, offers for sale and sells the Baby
Food Products throughout the United States, including in this District. Defendant has advertised
and continues to advertise these products via television, print advertisements, point-of-sale
displays, product packaging, Internet advertisements including on social media, as well as other
promotional materials.
22. The United States House of Representatives Subcommittee on Economic and
Consumer Policy published the Subcommittee Report on February 4, 2021, revealing its findings
that numerous commercial baby foods, including those manufactured by Defendant, are “tainted
with significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury.” See
Subcommittee Report at 4. Congressional investigators examined a wide range of baby foods
including rice cereals, purees, puffs and juices. The Subcommittee Report found that organic
products were as likely as conventional products to contain heavy metals. Subcommittee Report
at 9.
23. Though heavy metals are naturally found in the environment, most heavy metals in
foods come from contaminated soil or water. The contamination comes from either farming or
manufacturing practices, such as the use of pesticides, mining, and smelting or pollution.
24. Defendant was one of the seven largest baby food manufacturers in the United
States from whom the Subcommittee requested internal documents and test results. Gerber
responded to the requests and produced internal testing policies and results for ingredients and/or
finished products. Subcommittee Report at 2.
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25. The Subcommittee Report found that baby food companies such as Gerber
regularly sell products that contain ingredients that exceed their own internal standards for heavy
metals. Subcommittee Report at 33. According to the Subcommittee Report, most baby food
companies do not regularly test the products before they go to market, and even when they do,
products with high levels of heavy metals are still sold.
26. Representative Raja Krishnamoorthj, chairman of the Subcommittee, told
Consumer Reports that there are “dangerous levels of toxic metals in baby foods, and the levels
far exceed what experts and governing bodies say is permissible. Left to their own devices, baby
food makers have set testing standards in excess of what recommended standards are, and even
then, they often violate their standards.”
27. The Subcommittee Report provides evidence that baby food companies such as
Defendant are not doing enough to reduce risk from exposure to these heavy metals, and that parts
of the manufacturing process, including the addition of vitamins and mineral mixes, may be
contributing to the high levels of these metals in the Baby Food Products. The Subcommittee
Report concluded that “These toxic heavy metals [in baby foods] pose serious health risks to babies
and toddlers. Manufacturers knowingly sell these products to unsuspecting parents, in spite of
internal company standards and test results, and without any warning labeling whatsoever.”
Subcommittee Report at 59.
28. Defendant only cursorily describes its standards and how it minimizes the levels of
these heavy metals. The website merely states “Gerber foods must pass more than 100 individual
quality checks before they can be sold. These checks occur at 5 different stages…On top of that
Gerber follows an annual testing plan featuring regular safety tests of finished products,” leading
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consumers to believe the products are rigorously tested for any and all impurities. See
https://www.gerber.com/learning-center/quality-safety-faqs.
Defendant Falsely Marketed Its Baby Food Products
29. Defendant packages, markets, advertises, manufactures, distributes, and sells its
Baby Food Products throughout the United States, including in this District. Defendant markets
the Baby Food Products as healthy and omits any mention of heavy metals.
30. Defendant advertises that the “Gerber standard is a higher standard” and that the
company is “committed to feeding generations of babies the highest quality food. We only select
the best of what nature has to offer.” Defendant touts its commitment to safety, claiming it
“meet[s] the standards of the FDA” and “go further. We have among the strictest standards in the
world.”
31. Based on Defendant’s decision to advertise and market its Baby Food Products as
healthy, safe and high quality, Defendant had a duty to ensure that these statements were true and
not misleading. As such, Defendant knew or should have known that the Baby Food Products
included undisclosed and excessive levels of toxic, heavy metals, and that these toxins accumulate
in the body over time.
32. The marketing of the Baby Food Products also fails to disclose that the products
contain or may contain any level of heavy metals or other undesirable toxins or contaminations.
Defendant intentionally concealed and omitted this important information in order to induce and
mislead reasonable consumers like Plaintiff to purchase the Baby Food Products.
33. As a result of Defendant’s omissions, a reasonable consumer would have no reason
to suspect the presence of heavy metals in the Baby Food Products without conducting his or her
own scientific tests or reviewing third party scientific testing of these products.
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Consumers Were Misled and Deceived by Defendant’s Misrepresentations and Material Omissions in its Marketing
34. Defendant’s marketing of its Baby Food Products wrongfully conveys to
consumers like Plaintiff that these foods have certain superior quality and characteristics that they
do not actually possess.
35. For example, Defendant misleadingly caused Plaintiff and other consumers to
believe that its Baby Food Products do not contain heavy metals through its marketing and
omissions, which is material information to a reasonable consumer.
36. Defendant’s marketing wrongfully fails to disclose to Plaintiff and consumers the
presence of heavy metals in its Baby Food Products.
37. Based on Defendant’s marketing, a reasonable consumer would not suspect the
presence of heavy metals, nor would a reasonable consumer be able to detect these metals in the
Baby Food Products without conducting his or her own scientific testing or reviewing scientific
testing conducted on these products.
38. Reasonable consumers must and do rely on Defendant to honestly report what is in
the Baby Food Products.
39. In light of Defendant’s marketing, including its commitment to “higher standards,”
Defendant knew or should have known that the Baby Food Products contained heavy metals.
40. Defendant intended for consumers to rely on its marketing, and reasonable
consumers did in fact so rely.
41. Defendant had a duty to ensure that the Baby Food Products were as they were
represented, and not deceptively, misleadingly, unfairly, or falsely marketed.
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Defendant Knew or Should Have Known its Representations and Material Omissions in its Marketing Are Misleading
42. At all times herein, Defendant knew or should have known that its Baby Food
Products contained heavy metals.
43. Defendant knew that heavy metals are a potentially dangerous contaminant that
poses health risks to humans, and particularly to babies and children.
44. The Baby Food Products had a risk of and did contain heavy metals due to
Defendant’s failure to monitor for their presence in the ingredients and finished products and
remove them. Defendant was aware of this risk and failed to disclose it to Plaintiff and the Class.
45. Defendant knew or should have known that it owed consumers a duty of care to
prevent, or at the very least, to minimize the presence of heavy metals in the Baby Food Products
to the extent reasonably possible.
46. Defendant knew consumers purchased the Baby Food Products based on the
reasonable expectation that Defendant manufactured the Baby Food Products to the highest
standards. Based on this expectation, Defendant knew or should have known consumers
reasonably inferred that Defendant would hold the Baby Food Products to the highest standard.
47. As a result of the foregoing, Defendant’s marketing is deceptive, misleading, unfair
and false to Plaintiff and other consumers of baby food, including under the consumer protection
laws of Colorado.
48. Defendant acted negligently, reckless, unfairly, and/or intentionally with its
deceptive, misleading, unfair, and false marketing and omissions as described herein.
Heavy Metals Exceed Safe Limits
49. Arsenic, lead, cadmium, and mercury are toxic heavy metals. The U.S. Food and
Drug Administration (“FDA”) and the World Health Administration (“WHO”) have declared these
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heavy metals to be dangerous to human health, especially to babies and children. Subcommittee
Report at 2.
50. Exposure to heavy metals in food can be harmful to babies’ neurological
development and long-term brain function. Even exposure to low levels of these metals can lead
to serious and potentially irreversible damage to brain development. Id. Babies may be more
susceptible to levels of toxins and substances as they are in the critical years of brain growth and
development. According to James Dickerson, Ph.D., chief scientific officer for Consumer Reports
“[e]xposure to heavy metals has a disproportionate adverse effect on developing minds and
bodies.” Dickerson said that exposure to these metals has “deleterious effects on the developing
infant mind, brain, cardiovascular system, and immune system” and can lead to a lower IQ or
behavioral problems like ADHD, as well as an increased risk of skin and bladder cancer.
a. Arsenic
51. Arsenic is an odorless and tasteless element that does not degrade or disappear. It
occurs in the environment and can be found in rocks, soil, water, air, plants, and animals. Inorganic
arsenic is highly toxic and a known cause of human cancers. Exposure to arsenic can also cause
respiratory, gastrointestinal, hematological, hepatic, renal, skin, neurological and immunological
effects, and damage to children’s central nervous systems and cognitive development.
Subcommittee Report at 10.
52. Because of the risks associated with exposure to arsenic, both the FDA and the
Environmental Protection Agency (“EPA”) have set limits for the allowable amount of arsenic in
baby foods, including formula and juices, as well as for drinking water. The allowable limit of
arsenic is 10 parts per billion (“ppb”) for humans in consumption in apple juice (regulated by the
FDA) and drinking water (regulated by the EPA). Subcommittee Report at 13.
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53. In August 2020, the FDA set a limit for inorganic arsenic in infant rice cereal at
100 ppb. According to the Subcommittee Report, Gerber used at least 67 batches of rice flour
testing more than 90 ppb inorganic arsenic, which is 900 percent of the allowable limits for water
and apple juice.
54. While Gerber did not provide inorganic arsenic results for all of its ingredients, test
results for conventional rice flour revealed that Gerber routinely used flour (i.e., at least 67 batches)
with over 90 ppb inorganic arsenic. Also, Gerber used five batches of rice flour that had 98 ppb
inorganic arsenic. Subcommittee Report at 19.
b. Cadmium
55. Exposure to cadmium is associated with decreases in IQ and the development of
Attention Deficit Hyperactivity Disorder (“ADHD”). The U.S. Department of Health and Human
Services has determined that cadmium and cadmium compounds are known human carcinogens
and the EPA likewise determined that cadmium is a probable human carcinogen. It has been
specifically noted that “[k]idney and bone effects have…been observed in laboratory animals
ingesting cadmium.”
56. There has been some regulation on the use of cadmium outside of the baby food
realm, with the EPA setting a limit of 5 ppb in drinking water and the FDA setting a limit of 5 ppb
in bottled water. See Subcommittee Report at 29. The WHO has set a limit of 3 ppb for cadmium
in drinking water. Id. Moreover, organizations like Healthy Babies Bright Futures have set a goal
of no measurable cadmium in baby food and Consumer Reports has called for a 1 ppb cadmium
limit in fruit juices. Id. The European Union has set a limit ranging from 5-20 ppb cadmium in
baby formula. Id.
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57. The Subcommittee Report found that baby food manufacturers, including Gerber,
sold many baby food products that exceeded these limits on cadmium. Id.
58. Gerber does not test all of its product ingredients for cadmium. Of those it does
test, it accepts ingredients with levels of this metal. Gerber used multiple batches of carrots
containing as much as 87 ppb cadmium, and 75% of the carrots Gerber used had more than 5 ppb
cadmium. Subcommittee Report at 32.
c. Lead
59. Lead is persistent, and it can bioaccumulate in the body over time.2 It is a
carcinogen and developmental toxin known to cause health and developmental problems in
children including decreased cognitive performance, delayed puberty, and reduced postnatal
growth. Because lead can build up in the body over time, even low levels of chronic exposure can
be toxic and seriously dangerous to one’s health.
60. The American Academy for Pediatrics, the Environmental Defense Fund, and
Consumer Reports have all called for a 1 ppb level of lead in food and drinks that babies and
children consume. Subcommittee Report at 21. While there is no lead standard for lead in baby
foods, the FDA standard for lead in bottled water is 5 ppb lead. See 21 C.F.R. §
165.110(b)(4)(iii)A).
61. The Subcommittee Report found that Gerber used an ingredient, conventional
sweet potatoes, with 48 ppb lead. Gerber also used twelve other batches of sweet potato that tested
over 20 ppb for lead, the maximum lead level in infant formula allowed by the European Union.
2 See https://www.espa.gov/ground-water-and-drinking-water/basic-information-about-lead- drinking-water. 14 Case MDL No. 2997 Document 1-26 Filed 03/08/21 Page 16 of 36 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 16Page of 3417 PageID# of 36 16
See Subcommittee Report at 28. The results for the sweet potatoes and juices demonstrated
Gerber’s willingness to use ingredients containing dangerous levels of lead.
d. Mercury
63. Mercury is a known toxin, and pre-natal exposure has been associated with affected
neuro-development, a decreased IQ, and autistic behaviors. The impact of mercury exposure to
humans and animals has been studied for years; as early as 1997, the EPA issued a report to
Congress that detailed the health risks to humans and animals. Because of these risks and
mercury’s toxicity, both state and federal regulators have enacted regulations to protect humans
and animals.
64. There has been some regulation of mercury outside the baby food context. For
example, the EPA has capped mercury in drinking water at 2 ppb. Consumer advocates have urged
for even stricter standards for baby food. Health Babies Bright Futures has called for a goal of no
measurable mercury in baby food. See Subcommittee Report at 32.
65. Gerber rarely tests for mercury in its baby foods. Of the test results it presented to
the Subcommittee, Gerber only tested carrots, sweet potatoes, and lemon juice concentrate.
Subcommittee Report at 33. Gerber’s policy is to test only ingredients, and not its final products.
According to the Subcommittee Report, this policy recklessly endangers babies and children and
prevents the company from ever knowing the full extent of the danger presented by its products.
Finished baby foods are more toxic than their ingredients alone. This means that testing only
ingredients gives the false appearance of lower-than-actual toxic heavy metal levels.
66. Based on the foregoing, reasonable consumers like Plaintiff, would consider the
inclusion of these toxic metals in the Baby Food Products to be a material fact when considering
which baby food to purchase.
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67. Defendant knew that properly and sufficiently monitoring and testing for heavy
metals in its ingredients and Baby Food Products was critical.
68. Finally, Defendant knew or should have known that it could control the levels of
heavy metals in the Baby Food Products by properly monitoring their ingredients for heavy metals
and adjusting any formulation or diet to reduce ingredients that contained higher levels of heavy
metals.
69. Defendant also knew it was not properly and sufficiently testing for the presence of
heavy metals in the Baby Food Products.
70. Defendant knew or should have known that consumers reasonably expected it to
test for and monitor the presence of heavy metals in the Baby Food Products and ingredients.
71. Defendant knew, yet failed to disclose, its lack of regular testing and knowledge of
the risk or presence of heavy metals in the Baby Food Products.
72. The statements, representations, partial disclosures, and omissions made by
Defendant are crafted to deceive the public as they create an image that the Baby Food Products
are healthy, nutritious, and made from the best ingredients, are subject to strict quality control, and
are free of heavy metals.
73. Reasonable consumers, such as Plaintiff and the Class members, would have no
reason to doubt Defendant’s statements regarding the quality of the Baby Food Products.
Defendant’s failure to disclose and/or concealment of the toxins in the Baby Food Products
together with the misrepresentations alleged herein that were intended to, and did, cause consumers
like Plaintiff to purchase products they otherwise would not have if the true quality and ingredients
were disclosed.
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74. As a result of the wrongful marketing, including the misleading, deceptive, unfair
and false representations and omissions, Defendant capitalized on and reaped enormous profits
from consumers like Plaintiff who paid the purchase price or a premium for the Baby Food
Products that were not as advertised.
PLAINTIFF’S RELIANCE IS REASONABLE AND FORESEEABLE
75. Plaintiff and members of the Classes reasonably relied on Defendant's claims,
warranties, representations, advertisements, and other marketing concerning the qualities and
benefits of the Baby Food Products in making their purchase decisions.
76. Had Plaintiff and members of the Classes known of Defendant's misrepresentations
and material omissions regarding the presence of toxic heavy metals in its Baby Food Products,
Plaintiff and members of the Classes would not have purchased the Baby Food Products.
DEFENDANT BREACHED ITS EXPRESS AND IMPLIED WARRANTIES
77. Defendant had sufficient notice of its breaches of express and implied warranties.
Defendant has, and had, exclusive knowledge of the physical and chemical properties of the Baby
Food Products. Moreover, Defendant was put on notice by the Healthy Babies Bright Future
Report released in October 2019, regarding the inclusion of heavy metals or other toxins in the
Baby Food Products. See
https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2020-
04/BabyFoodReport_ENGLISH_R6.pdf.
78. Defendant knew that consumers such as Plaintiff and the proposed members of the
Classes would be the end purchasers or users of the Baby Food Products and the target of its
advertising and statements.
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79. Defendant intended the warranties, advertising, statements, and other
representations would be considered by the end purchasers of the Baby Food Products, including
Plaintiff and the proposed Class.
80. Defendant directly marketed the Baby Food Products to Plaintiff and the proposed
Classes through statements on its website, advertising, and packaging on the Baby Food Products.
81. Plaintiff and the proposed Classes are the ultimate purchasers and intended
beneficiaries of the express and implied warranties.
CLASS ACTION ALLEGATIONS
82. Plaintiff brings this action individually and on behalf of all other persons similarly
situated pursuant to Rules 23(a) and 23(b)(2) and (3) of the Federal Rules of Civil Procedure.
Notwithstanding, at this time, Plaintiff brings this action and seeks certification of the following
proposed class:
All persons within the United States who purchased the Baby Food Products for household or business use, and not for resale, within the applicable statute of limitations period (the “Class”).
83. Plaintiff Moore also brings this action individually and on behalf of the following
Colorado Subclass:
All persons who are citizens of the State of Colorado, who, purchased the Baby Food Products for household or business use and not for resale during any applicable statute of limitations period (the “Colorado Subclass”).
84. Excluded from the proposed Class and Subclass are the Defendant, and any entities
in which the Defendant has a controlling interest, the Defendant’s agents, employees, and legal
representatives, any judge to whom this action is assigned to this matter and any member of such
judge’s staff and immediate family.
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85. Certification of Plaintiff’s claims for class-wide treatment is appropriate because
Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as
would be used to prove those elements in individual actions alleging the same claims.
86. Numerosity – Federal Rule of Civil Procedure 23(a)(1) -- The members of the
Classes are so numerous that their individual joinder herein is impracticable. On information and
belief, members of the Classes number in the thousands or more. The number of members in the
Classes is presently unknown to Plaintiff but may be verified by Defendant’s records. Members
of the Classes may be notified of the pendency of this action by mail, e-mail, Internet postings,
and/or publication.
87. Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2)
and 23(b)(3) – Common questions of law and fact exist as to all members of the Classes and
predominate over individual questions. Such common questions of law or fact include, but are not
limited to:
a. Whether Defendant owed a duty of care;
b. Whether Defendant knew or should have known that the Baby Food Products
contained heavy metals;
c. Whether the Baby Food Products contain dangerous levels of toxic heavy metals;
d. Whether the marketing, advertising, packaging, and other promotional materials
for the Baby Food Products are deceptive;
e. Whether Defendant’s actions violate the state consumer fraud statutes identified
below;
f. Whether Defendant’s actions constitute common law fraud;
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g. Whether Plaintiff and members of the Classes were damaged by Defendant’s
conduct as alleged herein;
h. Whether Defendant was unjustly enriched at the expense of Plaintiff and the
members of the Classes; and
i. Whether Plaintiff and the members of the Classes are entitled to injunctive relief.
88. Typicality – Federal Rule of Civil Procedure 23(a)(3) – The claims of the named
Plaintiff are typical of the claims of the other members of the Class and the subclass. All members
of the Classes were similarly injured by Defendant’s conduct as described herein, and there are no
defenses available to Defendant that are unique to Plaintiff or any particular Class members.
89. Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4) –
Plaintiff is an adequate Class representative because her interests do not conflict with the interests
of other Class members; she has retained class counsel competent to prosecute class actions and
financially able to represent the Classes.
90. Declaratory and Injunctive Relief – Federal Rule of Civil Procedure
23(b)(2) – Defendant has acted or refused to act on grounds generally applicable to Plaintiff and
the other Class members, thereby making appropriate final injunctive relief and declaratory relief,
as described below, with respect to Class members as a whole. In particular, Plaintiff seeks to
certify a Classes to enjoin Defendant from selling or otherwise distributing Baby Food Products
until such time that Defendant can demonstrate to the Court’s satisfaction that its baby foods are
accurately labeled.
91. Superiority – Federal Rule of Civil Procedure 23(b)(3) – A class action is
superior to any other means of adjudication for this controversy. It would be impracticable for
members of the Classes to individually litigate their own claims against Defendant because the
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damages suffered by Plaintiff and members of the Classes are relatively small compared to the
cost of individually litigating their claims. A class action provides an efficient means for
adjudication with fewer management difficulties and comprehensive supervision by a single court.
CAUSES OF ACTION
COUNT I
Breach of Express Warranty Against Defendant (On Behalf of Plaintiff and the National Class)
92. Plaintiff incorporates by reference and realleges each and every allegation detailed
above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the
National Class.
93. Defendant marketed and sold the Baby Food Products into the stream of commerce
with the intent that the Baby Food Products would be purchased by Plaintiff and the Class.
94. Defendant expressly warranted, advertised, and represented to Plaintiff and the
Class that the Baby Food Products are made from the “highest quality ingredients.”
95. Defendant made these express warranties regarding the Baby Food Products’
quality, ingredients, and fitness for consumption in writing via its website, advertisements, and
marketing materials. These express warranties became part of the basis of the bargain that Plaintiff
and the Class entered into upon purchasing the Baby Food Products.
96. Defendant’s advertisements, warranties, and representations were made in
connection with the sale of the Baby Food Products to Plaintiff and the Class. Plaintiff and the
Class relied on Defendant’s advertisements, warranties, and representations regarding the Baby
Food Products in deciding whether to purchase Defendant’s products.
97. Defendant’s Baby Food Products do not conform to its advertisements, warranties,
and representations in that they: 22 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 23Page of 3424 PageID# of 36 23
a. Are not natural or suitable for consumption by human infants; and
b. Contain, or may contain, levels of certain heavy toxic metals.
98. Defendant was on notice of this breach as Gerber was aware of the included heavy
metals in the Baby Food Products and based on the investigation in the Healthy Babies Bright
Futures report that showed its Baby Food Products as unhealthy.
99. Because Defendant expressly warranted to Plaintiff and the Class, as the ultimate
purchasers of its Baby Food Products, through warranting, packaging, advertising, and marketing
that the Baby Food Products were healthy, natural, and safe for consumption and by failing to
make any mention of heavy metals and/or other contaminants there is no requirement of direct
privity between Gerber and Plaintiff and the Class.
100. As a direct and proximate result of Defendant’s conduct, Plaintiff and the Class
have suffered actual damages in that they purchase Baby Food Products that were worth less than
the price they paid and they would not have purchased had they known of the risk and/or presence
of heavy metals and/or other contaminants that do not conform to the products’ marketing and
advertisements.
101. Plaintiff and the Class seek actual damages, injunctive and declaratory relief,
attorneys’ fees, costs, and any other just and proper relief available thereunder for Defendant’s
failure to deliver goods conforming to their express warranties and resulting breach.
COUNT II
Breach of Implied Warranty of Merchantability Against Defendant (On Behalf of Plaintiff and the National Class)
102. Plaintiff incorporates by reference and realleges each and every allegation detailed
above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the
National Class. 23 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 24Page of 3425 PageID# of 36 24
103. Defendant is a merchant engaging in the manufacturing and supply of goods that
were purchased by Plaintiff and the Class.
104. At all times mentioned herein, Defendant manufactured or supplied the Baby Food
Products, and prior to the time they were purchased by Plaintiff and the Class, Defendant impliedly
warranted to them that the Baby Food Products were of merchantable quality, fit for their ordinary
use (consumption by babies), and conformed to the promises and affirmations of fact when they
purchased the Baby Food Products.
105. The Baby Food Products were not fit for their ordinary use, consumption by babies,
and did not conform to Defendant’s affirmations of fact and promises as they contained, or were
at risk of containing, heavy metals, and/or unnatural or other ingredients or contaminants that do
not conform to the packaging.
106. Defendant breached its implied warranties by selling Baby Food Products that
failed to conform to the promises or affirmations of fact made on the container or label as each
product contained heavy metals, and/or unnatural or other ingredients or contaminants that do not
conform to the packaging.
107. As a result of its own testing and/or the public investigation by Healthy Babies
Bright Futures that showed the frequent presence of heavy metals in the Baby Food Products,
Defendant has been aware that its Baby Food Products are unhealthy and contaminated and thus
on notice of this breach.
108. Defendant impliedly warranted to Plaintiff and the Class through the warranting,
packaging, advertising, and marketing that the Baby Food Products were natural, and suitable for
consumption by babies, and by failing to make any mention of heavy metals, and/or unnatural or
other ingredients.
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109. As a direct and proximate result of Defendant’s conduct, Plaintiff and the
Class have suffered actual damages in that Plaintiff and the Class have purchased Baby Food
Products that are worth less than the price they paid and that they would not have purchased at all
had they known of the presence or risk of heavy metals, and/or unnatural or other ingredients.
110. Plaintiff and the Class seek actual damages, injunctive and declaratory relief,
attorneys’ fees, costs, and any other just and proper relief available thereunder for Defendant’s
failure to deliver goods conforming to their implied warranties and resulting breach.
COUNT III
Fraudulent Misrepresentation Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass)
111. Plaintiff incorporates by reference and realleges each and every allegation
contained above, as though fully set forth herein. Plaintiff brings this action on behalf of herself
and the National Class or, alternatively, on behalf of the Colorado Subclass.
112. Defendant falsely represented to Plaintiff and the Class that their Baby Food
Products are made from the “highest quality ingredients.”
113. Defendant intentionally, knowingly, and recklessly made these misrepresentations
to induce Plaintiff and the Class to purchase its Baby Food Products.
114. Defendant knew that their representations about the Baby Food Products were false
or misleading due to the frequent presence of levels of heavy metals, and/or other ingredients that
do not conform to the products’ marketing, advertising, and statements. Defendant allowed its
advertisements, promotional materials, and websites to intentionally mislead consumers, such as
Plaintiff and the Class.
115. Plaintiff and the Class did in fact rely on these misrepresentations and purchased the
Baby Food Products to their detriment. Given the deceptive manner in which Defendant 25 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 26Page of 3427 PageID# of 36 26
advertised, represented, and otherwise promoted these products, Plaintiff’s and the Class’s reliance
on Defendant’s misrepresentations was justifiable.
116. As a direct and proximate result of Defendant’s conduct, Plaintiff and the
Class have suffered actual damages in that they purchased Baby Food Products that were worth
less than the price they paid and that they would not have purchased at all had they known of the
risk and/or presence of heavy metals, and/or other ingredients that do not conform to the products’
marketing, advertising, and statements.
117. Plaintiff and the Class seek actual damages, injunctive and declaratory relief,
attorneys’ fees, costs, and any other just and proper relief available under the laws.
COUNT IV
Fraud by Omission Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass)
118. Plaintiff incorporates by reference and realleges each and every allegation
contained above, as though fully set forth herein. Plaintiff brings this action on behalf of herself
and the National Class or, alternatively, on behalf of the Colorado Subclass.
119. Defendant concealed from and failed to disclose to Plaintiff and the Class that its
Baby Food Products contained, or were at risk of containing, heavy metals, and/or other
ingredients that do not conform to the products’ packaging, advertising, and statements.
120. Defendant was under a duty to disclose to Plaintiff and the Class the true
quality, characteristics, ingredients and suitability of the Baby Food Products because: (1)
Defendant was in a superior position to know the true state of facts about its products; (2)
Defendant was in a superior position to know the actual ingredients, characteristics, and suitability
of the Baby Food Products for consumption by babies; and (3) Defendant knew that Plaintiff and
the Class could not reasonably have been expected to learn or discover that the Baby Food Products 26 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 27Page of 3428 PageID# of 36 27
were misrepresented in the marketing, advertising, and websites prior to purchasing the Baby Food
Products.
121. The facts concealed or not disclosed by Defendant to Plaintiff and the Class
are material in that a reasonable consumer would have considered them important when
deciding whether to purchase the Baby Food Products.
122. Plaintiff and the Class justifiably relied on the Defendant’s omissions to
their detriment. The detriment is evident from the true quality, characteristics, and ingredients of
the Baby Food Products, which is inferior when compared to how the Baby Food Products are
advertised and represented by Defendant.
123. As a direct and proximate result of Defendant’s conduct, Plaintiff and the
Class have suffered actual damages in that they purchased Baby Food Products that were worth
less than the price they paid and that they would not have purchased at all had they known of the
risk and/or presence of heavy metals, or other ingredients that do not conform to the products’
marketing, advertising, and statements.
124. Plaintiff and the Class seek actual damages, injunctive and declaratory
relief, attorneys’ fees, costs, and any other just and proper relief available under the laws.
COUNT V
Negligent Misrepresentation Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass)
125. Plaintiff incorporates by reference and repeats and realleges all previously alleged
paragraphs, as if fully alleged herein. Plaintiff brings this action on behalf of herself and the
National Class or, alternatively, the Colorado Subclass.
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126. Plaintiff reasonably placed her trust and reliance in Defendant’s representations that
the Baby Food Products were marketed to her and the Class, and were healthy, nutritious, made
from the best ingredients, and safe for consumption and did not contain heavy metals.
127. Because of the relationship between the parties, Defendant owed a duty to use
reasonable care to impart correct and reliable disclosures concerning the presence of heavy metals
in the Baby Food Products, or based upon its superior knowledge, having spoken, to say enough
not to be misleading.
128. Defendant breached its duty to Plaintiff and the Class by providing false,
misleading, and/or deceptive information regarding the nature of the Baby Food Products.
129. Plaintiff and the Class reasonably relied upon the information provided by
Defendant. A reasonable consumer would have relied on Defendant’s own warranties, statements,
representations, advertising, packaging, and other marketing as to the quality, make-up and
ingredients of the Baby Food Products.
130. As a result of the misrepresentations, Plaintiff and the Class purchased the Baby
Food Products, and purchased them at a premium.
131. Defendant failed to use reasonable care in its communications and representations
to Plaintiff and the Class, especially in light of its knowledge of the risks and importance of
considering ingredients to consumers when purchasing the Baby Food Products.
132. By virtue of Defendant’s negligent misrepresentations, Plaintiff and the Class have
been damaged in an amount to be proven at trial, or alternatively, seek rescission and disgorgement
under this Count.
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COUNT VI
Unjust Enrichment (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass)
133. Plaintiff incorporates by reference and realleges each and every allegation
contained above, as if fully set forth herein. Plaintiff brings this action on behalf of herself and
the National Class or, alternatively, on behalf of the Colorado Subclass.
134. Plaintiff and putative Class Members conferred a benefit on Defendant when they
purchased the Baby Food Products, of which Defendant had knowledge. By its wrongful acts and
omissions described herein, including selling the Baby Food Products, which contain toxic heavy
metals, including arsenic, cadmium, mercury and lead, at levels above what is considered safe for
babies and did not otherwise perform as represented or for the particular purpose for which they
were intended, Defendant was unjustly enriched at the expense of Plaintiff and putative Class
members. Plaintiff’s detriment and Defendant’s enrichment were related to and flowed from the
wrongful conduct alleged in this Complaint.
135. Defendant has profited from its unlawful, unfair, misleading and deceptive
practices at the expense of Plaintiff and putative Class members under circumstances in which it
would be unjust for Defendant to be permitted to retain the benefit. It would be inequitable for
Defendant to retain the profits, benefits and other compensation obtained from its wrongful
conduct as described herein in connection with selling the Baby Food Products.
136. Defendant has been unjustly enriched in retaining the revenue derived from the
Class members’ purchases of the Baby Food Products, because Defendant manufactured defective
Baby Food Products, and misrepresented the nature of the Baby Food Products and/or their
ingredients, and knowingly marketed and promoted dangerous and defective products that caused
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injuries to Plaintiff and the Class, and because they would not have purchased the products if the
true facts concerning the Baby Food Products had been known.
137. Plaintiff and putative Class members have been damaged as a direct and proximate
result of Defendant’s unjust enrichment because they would not have purchased the Baby Food
Products had the presence of heavy metals been adequately disclosed and certainly would not have
purchased them had they known the true nature of the Baby Food Products and the misstatements
regarding what the Baby Food Products were and what they contained.
138. Defendant either knew or should have known that payments rendered by Plaintiff
or putative Class members were given or received with the expectation that the Baby Food
Products were made from “the highest quality ingredients,” as represented by Defendant in
advertising, on Defendant’s websites, and on the Baby Food Product’s packaging. It is inequitable
for Defendant to retain the benefit of payments under these circumstances.
139. Plaintiff and putative Class Members are entitled to recover from Defendant all
amounts wrongfully collected and improperly retained by Defendant.
140. Under these circumstances, there is no requirement for Plaintiff and the Class to
demonstrate privity with Defendant.
141. As a direct and proximate result of Defendant’s wrongful conduct, and unjust
enrichment, Plaintiff and putative Class Members are entitled to restitution of, disgorgement of,
and/or imposition of a constructive trust upon profits, benefits and other compensation obtained
by Defendant for its inequitable and unlawful conduct.
///
///
///
30 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 31Page of 3432 PageID# of 36 31
COUNT VII
Violation of Colorado Consumer Protection Act Colo. Rev. Stat. §§6-6-101, et seq. (On Behalf of Plaintiff and the Colorado Subclass)
142. Plaintiff incorporates by reference and realleges each and every allegation
contained above, as if fully set forth herein. Plaintiff brings this action on behalf of herself and on
behalf of the Colorado Subclass.
143. Defendant is a “person” as defined by Colo. Rev. Stat. §6-1-102(6).
144. Defendant engaged in “sales” as defined by Colo. Rev. Stat. §6-1-102(10).
145. Plaintiff Moore and Colorado Subclass members, as well as the general public, are
actual or potential consumers of the products offered by Defendant or its successors in interest to
actual consumers.
146. Defendant engaged in deceptive trade practices in the course of its business, in
violation of Colo. Rev. Stat. §6-1-105(1)(g) by, among other things, representing that the products
are of a particular standard, quality or grade, while they knew or should know that they are of
another.
147. Defendant’s representations or omissions were material because they were likely
to deceive reasonable consumers.
148. As a direct and proximate result of Defendant’s deceptive trade practices, Plaintiff
Moore and the Colorado Subclass members suffered injuries in fact to their legally protected
interests.
149. The challenged practices described above caused the injuries in fact to Plaintiff and
the Colorado Subclass.
31 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 32Page of 3433 PageID# of 36 32
150. Defendant’s deceptive trade practices significantly impact the public as actual or
potential consumers of Defendant’s Baby Food Products, because Defendant is one of, if not the,
largest baby food manufacturers in the country.
151. Plaintiff Moore and the Colorado Subclass members seek all monetary and non-
monetary relief allowed by law, including the greater of: (a) actual damages; (b) $500; or (c) three
times actual damages for Defendant’s bad faith conduct, injunctive relief; and reasonable
attorneys’ fees and costs.
152. Plaintiff Moore and the Colorado Subclass repeats and realleges each and every
allegation above, as though fully set forth herein.
REQUEST FOR RELIEF
153. WHEREFORE, Plaintiff, individually and on behalf of the other members of the
Classes proposed in this Complaint, respectfully requests that the Court enter judgment as follows:
A. Declaring that this action is a proper class action, certifying the Classes as requested herein,
designating Plaintiff and Class Representative, and appointing the undersigned counsel as
Class Counsel for the Classes;
B. An order enjoining Defendant from selling Baby Food Products until the higher and/or
unsafe levels of heavy metals are removed;
C. An order enjoining Defendant from selling Baby Food Products in any manner suggesting
or implying that they are healthy, nutritious, and safe for consumption;
D. An order requirinig Defendant to engage in a corrective advertising campaign and engage
in any further necessary affirmative injunctive relief, such as recalling existing products;
E. Ordering Defendant to pay actual damages to Plaintiff and the other members of the
Classes;
32 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 33Page of 3434 PageID# of 36 33
F. Ordering Defendant to pay restitution to Plaintiff and the other members of the Classes;
G. Ordering Defendant to pay punitive damages, as allowable by law, to Plaintiff and the other
members of the Classes;
H. Ordering Defendant to pay statutory damages, as provided by the applicable state consumer
protection statutes invoked herein, to Plaintiff and the other members of the Classes;
I. Ordering Defendant to pay reasonable attorneys’ fees and litigation costs to Plaintiff and
the other members of the Class as allowable by law;
J. Ordering Defendant to pay both pre- and post-judgment interest as allowable by law, on
any amounts awarded; and
K. Ordering such other and further relief as may be just and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury of all claims in this Complaint so triable. Plaintiff also
respectfully requests leave to amend this Complaint to conform to the evidence, if such amendment
is needed for trial.
Dated: March 4, 2021 Bonnett Fairbourn Friedman & Balint PC
s/Francis J. Balint, Jr. Francis J. Balint, Jr. Joshua Gunnell House, Suite 4 4023 Chain Bridge Road Fairfax, VA 22030 Telephone: (602) 776-5903 Fax: (602) 274-1199 Email: fbalint@bffb.com
and
Elaine A. Ryan 2325 E. Camelback Rd., Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Fax: (602) 274-1199
33 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 34Page of 3435 PageID# of 36 34
eryan@bffb.com
Barrack, Rodos & Bacine Mark R. Rosen Jeffrey A. Barrack 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Fax: (215) 963-0838 mrosen@barrack.com jbarrack@barrack.com
and
Stephen R. Basser 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 230-0800 Fax: (619) 230-1874 sbasser@barrack.com
John G. Emerson Emerson Firm, PLLC 2500 Wilcrest, Suite 300 Houston, TX 77042 Telephone: (800)-551-8649 Fax: (501)-286-4659 jemerson@emersonfirm.com
34 3/5/2021 Case MDL No. 2997 Document 1-26 Filed CM/ECF - vaed03/08/21 Page 36 of 36
U.S. District Court Eastern District of Virginia - (Alexandria) CIVIL DOCKET FOR CASE #: 1:21-cv-00277
Moore v. Gerber Products Company Date Filed: 03/04/2021 Assigned to: Jury Demand: Plaintiff Cause: 28:1332 Diversity-Fraud Nature of Suit: 370 Other Fraud Jurisdiction: Diversity Plaintiff Jamie Moore represented by Francis J. Balint , Jr. Bonnett Fairbourn Friedman & Balint PC 4023 Chain Bridge Road Suite 4 Fairfax, VA 22030 602-776-5903 Fax: 602-274-1199 Email: fbalint@bffb.com ATTORNEY TO BE NOTICED Defendant Gerber Products Company
Date Filed # Docket Text 03/04/2021 1 Complaint ( Filing fee $ 402, receipt number 0422-7657475.), filed by Jamie Moore. (Attachments: # 1 Civil Cover Sheet)(Balint, Francis) (Entered: 03/04/2021) 03/04/2021 2 Proposed Summons re 1 Complaint by Jamie Moore. (Balint, Francis) (Entered: 03/04/2021)
PACER Service Center Transaction Receipt 03/05/2021 12:57:35 PACER Client Code: Login: Search 1:21-cv- Description: Docket Report Criteria: 00277 Billable 1 Cost: 0.10 Pages:
https://ecf.vaed.uscourts.gov/cgi-bin/DktRpt.pl?29042879542657-L_1_0-1 1/1 | 2021-03-08 | [
"Case MDL No. 2997 Document 1-26 Filed 03/08/21 Page 1 of 36 Exhibit 23 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 1 Page of 34 2PageID# of 36 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA JAMIE MOORE, individually and on : behalf of all others similarly situated, : Case No. : Plaintiff, : Jury Trial Demanded : v. : : GERBER PRODUCTS COMPANY, : : : Defendant. : : CLASS ACTION COMPLAINT Plaintiff Jamie Moore, on behalf of herself and all others similarly situated, by her undersigned attorneys, brings this Class Action Complaint against Defendant, Gerber Products Company (hereinafter “Gerber”), for its negligent, reckless, and/or intentional practice of misrepresenting and failing to fully disclose the presence of toxic metals in its baby food products sold throughout the United States. Plaintiff seeks both injunctive and monetary relief on behalf of the proposed Classes (defined below), including requiring full disclosure of all such substances in Defendant’s marketing and advertising, and restoring monies to the members of the proposed Classes. Plaintiff alleges the following based upon personal knowledge as to herself and her own actions, and, as to all other matters, alleges, upon information and belief and investigation of her counsel.",
"Plaintiff believes that substantial evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. // // 1 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 2 Page of 34 3PageID# of 36 2 INTRODUCTION 1. This is a consumer class action brought individually by Plaintiff and on behalf of all persons in the proposed Class and subclass defined below, all of whom purchased one or more baby food products manufactured by Gerber.1 2. Gerber is an American manufacturer of Baby Food Products. Gerber claims to be one of the “world’s most trusted name[s] in baby food.” http://www.gerber.com/nestle_nutrition/default.aspx. Gerber sells nearly 200 different baby food products in 80 countries.",
"Gerber was founded with the mission to “give babies the best start in life.” http://www.gerber.com/about-us. As of 2017, Gerber controlled 61 percent of the baby food market in the United States. See “Growing Up Gerber: 5 Questions with CMO Aileen Stocks.” https://www.brandchannel.com/2017/04/15/5-questions-gerber-041517 (April 15, 2017). 3. Parents like Plaintiff trust manufacturers like Defendant Gerber to sell baby food that is safe, nutritious, and free from harmful toxins, contaminants and chemicals. Parents purchase Baby Food Products with the expectation that they are free from heavy metals, substances known to have significant, harmful health effects. 4. Because consumers do not have the scientific knowledge necessary to determine whether the Baby Food Products contain heavy metals or to know or ascertain the true nature of 1 The term “Baby Food Products” refers to all the Gerber baby food products that contain heavy metals, including the Gerber products purchased by Plaintiff, specifically: Gerber Organic Sitter 2nd Foods Pear Blueberry Apple with Avocado; Gerber Organic Sitter 2nd Foods Banana Blueberry Blackberry Oatmeal; Gerber Organic Toddlers Apple Mango Raspberry Oatmeal with Avocado; and Gerber Natural Sitter 2nd Foods Apple Zucchini Peach with Vitamin C. Plaintiff reserves the right to amend this definition upon completion of discovery. 2 Case Case 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 3 Page of 34 4PageID# of 36 3 the ingredients in the Baby Food Products, they must rely on Defendant to honestly represent the contents of its products. 5. On February 4, 2021, the U.S. House of Representatives’ Subcommittee on Economic and Consumer Policy, Committee on Oversight and Reform, released the results of an investigation into leading baby food manufacturers in the United States relating to alleged high amounts of detrimental metals in baby food. The report entitled “Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium and Mercury,” (“Subcommittee Report”) revealed that “[i]nternal company standards permit dangerously high levels of toxic heavy metals, and documents revealed that the manufacturers have often sold foods that exceeded those levels.” Subcommittee Report at 4. 6.",
"Heavy metals are not listed as an ingredient on the product labels of the Baby Food Products. Nor does Defendant warn of the potential presence of heavy metals in the Baby Food Products. Unbeknownst to Plaintiff and other members of the proposed Class and subclass, and contrary to the representations on marketing and advertising, the Baby Food Products contain toxic heavy metals, including inorganic arsenic, lead, cadmium, and mercury, at levels above what is considered safe for babies. Had the presence of these heavy metals been disclosed to Plaintiff and the members of the proposed Class and subclass prior to their purchase of the Baby Food Products, they would not have purchased the Baby Food Products. Further, absent accurate marketing and advertising in the future, there is no way for Plaintiff or the members of the proposed Class and subclass to determine whether Defendant has reformulated or removed the heavy metals from its Baby Food Products and, thus, will be unable to rely on Defendant’s representations. 7.",
"Defendant knows that its customers trust the quality of its baby food products and that these customers expect Defendant’s products to be free of harmful ingredients such as heavy 3 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 4 Page of 34 5PageID# of 36 4 metals. Gerber is also aware that many consumers seek out and purchase premium baby foods that contain high quality ingredients, free of toxins, contaminants or chemicals and that these consumers will pay more for baby foods that they believe possess these qualities. 8. Defendant’s promises, warranties, pricing, statements, claims, packaging, marketing and advertising center on representations that are intended to, and do, convey to consumers that its products, including its Baby Food Products, possess certain qualities and characteristics. 9. No reasonable consumer seeing Defendant’s marketing and packaging would expect the Baby Food Products to contain heavy metals or other contaminants. Reasonable consumers, like Plaintiff, would consider the inclusion of heavy metals or other toxins or contaminants a material fact when considering what baby food products to purchase.",
"10. Defendant intended for consumers like Plaintiff to rely on its marketing, and reasonable consumers did rely on Gerber’s marketing. As detailed herein, because the Baby Food Products contained undisclosed toxins, contaminants, and/or heavy metals, the Baby Food Products’ packaging and marketing is deceptive, misleading, unfair and/or false. 11. Defendant’s Baby Food Products and corresponding marketing do not have a disclaimer or warning that the items may contain heavy metals or other undesirable toxins or contaminants that can accumulate in a child’s body over time and cause deleterious effects. 12.",
"Defendant’s wrongful marketing and advertising, which includes misleading, deceptive, unfair, and false marketing and omissions, allowed the company to capitalize on, and reap enormous profits from, consumers who paid the purchase price or a premium price for the Baby Food Products that were not sold as advertised. Defendant continues to wrongfully induce consumers to purchase its Baby Food Products that are not as advertised. 4 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 5 Page of 34 6PageID# of 36 5 13.",
"Plaintiff and the members of the proposed Class and subclass thus bring claims for consumer fraud and seek damages, injunctive and declaratory relief, interest, costs, and attorneys’ fees. THE PARTIES 14. Plaintiff Jamie Moore is, and at all relevant times hereto has been, a citizen of the State of Colorado and is a member of the proposed class and subclass defined herein. She purchased four of Defendant’s products at issue in the Complaint: Gerber Organic Sitter 2nd Foods Pear Blueberry Apple with Avocado; Gerber Organic Sitter 2nd Foods Banana Blueberry Blackberry Oatmeal; Gerber Organic Toddlers Apple Mango Raspberry Oatmeal with Avocado; Gerber Natural Sitter 2nd Foods Apple Zucchini Peach with Vitamin C. Plaintiff last purchased these products for her child from stores in El Paso County, Colorado. Prior to purchasing the products, Plaintiff saw Defendant’s advertising, marketing and nutritional claims, upon which she relied in deciding to purchase these products. 15.",
"Plaintiff believed she was feeding her children healthy, nutritious foods during the time Plaintiff purchased and fed her children the Baby Food Products. Due to the false and misleading claims and omissions by Defendant as described herein, Plaintiff was unaware that the Baby Food Products contained any level of toxic heavy metals, and Plaintiff would not have purchased the food if that information had been fully disclosed. 16. As a result of Defendant’s negligent, reckless, and/or knowingly deceptive conduct, Plaintiff was injured when she paid the purchase price or a price premium for the Baby Food Products that did not deliver what they promised. Plaintiff paid the purchase price with the assumption that the Baby Food Products’ marketing and advertising was accurate and that the 5 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 6 Page of 34 7PageID# of 36 6 Products were free of heavy metals and safe for children to ingest. Plaintiff would not have paid this money had she known that the Baby Food Products contained excessive levels of heavy metals. 17.",
"Defendant Gerber Products Company is a Michigan corporation with its principal place of business located in Arlington, Virginia. Gerber began making pre-prepared baby food in 1928. Gerber was purchased by Nestlé in 2007. Gerber is now a subsidiary of Nestlé S.A., and its sister company, Nestlé USA is incorporated in Delaware and also headquartered in Arlington, Virginia. Gerber is currently the market leader for infant foods in the United States. https://www.nestle.com/aboutus/history/nestle-company-history/gerber. Defendant formulates, develops, manufactures, distributes, markets, advertises, and sells its Baby Food Products throughout the United States. JURISDICTION AND VENUE 18. This Court has subject matter jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2), because the claims of the proposed members of the Classes exceed $5,000,000 and because Defendant is a citizen of a different state than one or more members of the proposed Classes.",
"19. This Court has personal jurisdiction over Defendant because Defendant maintains its corporate headquarters here. In addition, Defendant regularly sells and markets its Baby Food Products in this District, and because Defendant otherwise conducts business in this District and/or under the stream of commerce doctrine by allowing its products, including the Baby Food Products, to be sold in this District. 20. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial portion of the events complained of herein took place in this District, and this Court has jurisdiction 6 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 7 Page of 34 8PageID# of 36 7 over Defendant. Defendant has intentionally availed itself of the laws and markets of this District, and Defendant is subject to personal jurisdiction in this District.",
"FACTUAL ALLEGATIONS 21. Defendant manufactures, distributes, markets, offers for sale and sells the Baby Food Products throughout the United States, including in this District. Defendant has advertised and continues to advertise these products via television, print advertisements, point-of-sale displays, product packaging, Internet advertisements including on social media, as well as other promotional materials. 22. The United States House of Representatives Subcommittee on Economic and Consumer Policy published the Subcommittee Report on February 4, 2021, revealing its findings that numerous commercial baby foods, including those manufactured by Defendant, are “tainted with significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury.” See Subcommittee Report at 4. Congressional investigators examined a wide range of baby foods including rice cereals, purees, puffs and juices. The Subcommittee Report found that organic products were as likely as conventional products to contain heavy metals. Subcommittee Report at 9. 23.",
"Though heavy metals are naturally found in the environment, most heavy metals in foods come from contaminated soil or water. The contamination comes from either farming or manufacturing practices, such as the use of pesticides, mining, and smelting or pollution. 24. Defendant was one of the seven largest baby food manufacturers in the United States from whom the Subcommittee requested internal documents and test results. Gerber responded to the requests and produced internal testing policies and results for ingredients and/or finished products. Subcommittee Report at 2. 7 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 8 Page of 34 9PageID# of 36 8 25. The Subcommittee Report found that baby food companies such as Gerber regularly sell products that contain ingredients that exceed their own internal standards for heavy metals.",
"Subcommittee Report at 33. According to the Subcommittee Report, most baby food companies do not regularly test the products before they go to market, and even when they do, products with high levels of heavy metals are still sold. 26. Representative Raja Krishnamoorthj, chairman of the Subcommittee, told Consumer Reports that there are “dangerous levels of toxic metals in baby foods, and the levels far exceed what experts and governing bodies say is permissible.",
"Left to their own devices, baby food makers have set testing standards in excess of what recommended standards are, and even then, they often violate their standards.” 27. The Subcommittee Report provides evidence that baby food companies such as Defendant are not doing enough to reduce risk from exposure to these heavy metals, and that parts of the manufacturing process, including the addition of vitamins and mineral mixes, may be contributing to the high levels of these metals in the Baby Food Products. The Subcommittee Report concluded that “These toxic heavy metals [in baby foods] pose serious health risks to babies and toddlers.",
"Manufacturers knowingly sell these products to unsuspecting parents, in spite of internal company standards and test results, and without any warning labeling whatsoever.” Subcommittee Report at 59. 28. Defendant only cursorily describes its standards and how it minimizes the levels of these heavy metals. The website merely states “Gerber foods must pass more than 100 individual quality checks before they can be sold. These checks occur at 5 different stages…On top of that Gerber follows an annual testing plan featuring regular safety tests of finished products,” leading 8 Case Case 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-26 03/04/21 Filed 03/08/21 Page 9Page of 3410 PageID# of 36 9 consumers to believe the products are rigorously tested for any and all impurities. See https://www.gerber.com/learning-center/quality-safety-faqs. Defendant Falsely Marketed Its Baby Food Products 29.",
"Defendant packages, markets, advertises, manufactures, distributes, and sells its Baby Food Products throughout the United States, including in this District. Defendant markets the Baby Food Products as healthy and omits any mention of heavy metals. 30. Defendant advertises that the “Gerber standard is a higher standard” and that the company is “committed to feeding generations of babies the highest quality food. We only select the best of what nature has to offer.” Defendant touts its commitment to safety, claiming it “meet[s] the standards of the FDA” and “go further. We have among the strictest standards in the world.” 31. Based on Defendant’s decision to advertise and market its Baby Food Products as healthy, safe and high quality, Defendant had a duty to ensure that these statements were true and not misleading. As such, Defendant knew or should have known that the Baby Food Products included undisclosed and excessive levels of toxic, heavy metals, and that these toxins accumulate in the body over time. 32.",
"The marketing of the Baby Food Products also fails to disclose that the products contain or may contain any level of heavy metals or other undesirable toxins or contaminations. Defendant intentionally concealed and omitted this important information in order to induce and mislead reasonable consumers like Plaintiff to purchase the Baby Food Products. 33. As a result of Defendant’s omissions, a reasonable consumer would have no reason to suspect the presence of heavy metals in the Baby Food Products without conducting his or her own scientific tests or reviewing third party scientific testing of these products. 9 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 10Page of 3411 PageID# of 36 10 Consumers Were Misled and Deceived by Defendant’s Misrepresentations and Material Omissions in its Marketing 34. Defendant’s marketing of its Baby Food Products wrongfully conveys to consumers like Plaintiff that these foods have certain superior quality and characteristics that they do not actually possess. 35.",
"For example, Defendant misleadingly caused Plaintiff and other consumers to believe that its Baby Food Products do not contain heavy metals through its marketing and omissions, which is material information to a reasonable consumer. 36. Defendant’s marketing wrongfully fails to disclose to Plaintiff and consumers the presence of heavy metals in its Baby Food Products. 37. Based on Defendant’s marketing, a reasonable consumer would not suspect the presence of heavy metals, nor would a reasonable consumer be able to detect these metals in the Baby Food Products without conducting his or her own scientific testing or reviewing scientific testing conducted on these products.",
"38. Reasonable consumers must and do rely on Defendant to honestly report what is in the Baby Food Products. 39. In light of Defendant’s marketing, including its commitment to “higher standards,” Defendant knew or should have known that the Baby Food Products contained heavy metals. 40. Defendant intended for consumers to rely on its marketing, and reasonable consumers did in fact so rely. 41. Defendant had a duty to ensure that the Baby Food Products were as they were represented, and not deceptively, misleadingly, unfairly, or falsely marketed. 10 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 11Page of 3412 PageID# of 36 11 Defendant Knew or Should Have Known its Representations and Material Omissions in its Marketing Are Misleading 42. At all times herein, Defendant knew or should have known that its Baby Food Products contained heavy metals.",
"43. Defendant knew that heavy metals are a potentially dangerous contaminant that poses health risks to humans, and particularly to babies and children. 44. The Baby Food Products had a risk of and did contain heavy metals due to Defendant’s failure to monitor for their presence in the ingredients and finished products and remove them. Defendant was aware of this risk and failed to disclose it to Plaintiff and the Class. 45. Defendant knew or should have known that it owed consumers a duty of care to prevent, or at the very least, to minimize the presence of heavy metals in the Baby Food Products to the extent reasonably possible.",
"46. Defendant knew consumers purchased the Baby Food Products based on the reasonable expectation that Defendant manufactured the Baby Food Products to the highest standards. Based on this expectation, Defendant knew or should have known consumers reasonably inferred that Defendant would hold the Baby Food Products to the highest standard. 47. As a result of the foregoing, Defendant’s marketing is deceptive, misleading, unfair and false to Plaintiff and other consumers of baby food, including under the consumer protection laws of Colorado. 48. Defendant acted negligently, reckless, unfairly, and/or intentionally with its deceptive, misleading, unfair, and false marketing and omissions as described herein.",
"Heavy Metals Exceed Safe Limits 49. Arsenic, lead, cadmium, and mercury are toxic heavy metals. The U.S. Food and Drug Administration (“FDA”) and the World Health Administration (“WHO”) have declared these 11 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 12Page of 3413 PageID# of 36 12 heavy metals to be dangerous to human health, especially to babies and children. Subcommittee Report at 2. 50. Exposure to heavy metals in food can be harmful to babies’ neurological development and long-term brain function. Even exposure to low levels of these metals can lead to serious and potentially irreversible damage to brain development. Id. Babies may be more susceptible to levels of toxins and substances as they are in the critical years of brain growth and development. According to James Dickerson, Ph.D., chief scientific officer for Consumer Reports “[e]xposure to heavy metals has a disproportionate adverse effect on developing minds and bodies.” Dickerson said that exposure to these metals has “deleterious effects on the developing infant mind, brain, cardiovascular system, and immune system” and can lead to a lower IQ or behavioral problems like ADHD, as well as an increased risk of skin and bladder cancer.",
"a. Arsenic 51. Arsenic is an odorless and tasteless element that does not degrade or disappear. It occurs in the environment and can be found in rocks, soil, water, air, plants, and animals. Inorganic arsenic is highly toxic and a known cause of human cancers. Exposure to arsenic can also cause respiratory, gastrointestinal, hematological, hepatic, renal, skin, neurological and immunological effects, and damage to children’s central nervous systems and cognitive development. Subcommittee Report at 10. 52. Because of the risks associated with exposure to arsenic, both the FDA and the Environmental Protection Agency (“EPA”) have set limits for the allowable amount of arsenic in baby foods, including formula and juices, as well as for drinking water. The allowable limit of arsenic is 10 parts per billion (“ppb”) for humans in consumption in apple juice (regulated by the FDA) and drinking water (regulated by the EPA). Subcommittee Report at 13.",
"12 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 13Page of 3414 PageID# of 36 13 53. In August 2020, the FDA set a limit for inorganic arsenic in infant rice cereal at 100 ppb. According to the Subcommittee Report, Gerber used at least 67 batches of rice flour testing more than 90 ppb inorganic arsenic, which is 900 percent of the allowable limits for water and apple juice. 54. While Gerber did not provide inorganic arsenic results for all of its ingredients, test results for conventional rice flour revealed that Gerber routinely used flour (i.e., at least 67 batches) with over 90 ppb inorganic arsenic. Also, Gerber used five batches of rice flour that had 98 ppb inorganic arsenic.",
"Subcommittee Report at 19. b. Cadmium 55. Exposure to cadmium is associated with decreases in IQ and the development of Attention Deficit Hyperactivity Disorder (“ADHD”). The U.S. Department of Health and Human Services has determined that cadmium and cadmium compounds are known human carcinogens and the EPA likewise determined that cadmium is a probable human carcinogen. It has been specifically noted that “[k]idney and bone effects have…been observed in laboratory animals ingesting cadmium.” 56. There has been some regulation on the use of cadmium outside of the baby food realm, with the EPA setting a limit of 5 ppb in drinking water and the FDA setting a limit of 5 ppb in bottled water. See Subcommittee Report at 29. The WHO has set a limit of 3 ppb for cadmium in drinking water. Id.",
"Moreover, organizations like Healthy Babies Bright Futures have set a goal of no measurable cadmium in baby food and Consumer Reports has called for a 1 ppb cadmium limit in fruit juices. Id. The European Union has set a limit ranging from 5-20 ppb cadmium in baby formula. Id. 13 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 14Page of 3415 PageID# of 36 14 57. The Subcommittee Report found that baby food manufacturers, including Gerber, sold many baby food products that exceeded these limits on cadmium. Id. 58. Gerber does not test all of its product ingredients for cadmium. Of those it does test, it accepts ingredients with levels of this metal. Gerber used multiple batches of carrots containing as much as 87 ppb cadmium, and 75% of the carrots Gerber used had more than 5 ppb cadmium. Subcommittee Report at 32. c. Lead 59.",
"Lead is persistent, and it can bioaccumulate in the body over time.2 It is a carcinogen and developmental toxin known to cause health and developmental problems in children including decreased cognitive performance, delayed puberty, and reduced postnatal growth. Because lead can build up in the body over time, even low levels of chronic exposure can be toxic and seriously dangerous to one’s health. 60. The American Academy for Pediatrics, the Environmental Defense Fund, and Consumer Reports have all called for a 1 ppb level of lead in food and drinks that babies and children consume. Subcommittee Report at 21. While there is no lead standard for lead in baby foods, the FDA standard for lead in bottled water is 5 ppb lead. See 21 C.F.R. § 165.110(b)(4)(iii)A). 61. The Subcommittee Report found that Gerber used an ingredient, conventional sweet potatoes, with 48 ppb lead.",
"Gerber also used twelve other batches of sweet potato that tested over 20 ppb for lead, the maximum lead level in infant formula allowed by the European Union. 2 See https://www.espa.gov/ground-water-and-drinking-water/basic-information-about-lead- drinking-water. 14 Case MDL No. 2997 Document 1-26 Filed 03/08/21 Page 16 of 36 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 16Page of 3417 PageID# of 36 16 See Subcommittee Report at 28. The results for the sweet potatoes and juices demonstrated Gerber’s willingness to use ingredients containing dangerous levels of lead. d. Mercury 63. Mercury is a known toxin, and pre-natal exposure has been associated with affected neuro-development, a decreased IQ, and autistic behaviors. The impact of mercury exposure to humans and animals has been studied for years; as early as 1997, the EPA issued a report to Congress that detailed the health risks to humans and animals. Because of these risks and mercury’s toxicity, both state and federal regulators have enacted regulations to protect humans and animals.",
"64. There has been some regulation of mercury outside the baby food context. For example, the EPA has capped mercury in drinking water at 2 ppb. Consumer advocates have urged for even stricter standards for baby food. Health Babies Bright Futures has called for a goal of no measurable mercury in baby food. See Subcommittee Report at 32. 65. Gerber rarely tests for mercury in its baby foods. Of the test results it presented to the Subcommittee, Gerber only tested carrots, sweet potatoes, and lemon juice concentrate. Subcommittee Report at 33. Gerber’s policy is to test only ingredients, and not its final products.",
"According to the Subcommittee Report, this policy recklessly endangers babies and children and prevents the company from ever knowing the full extent of the danger presented by its products. Finished baby foods are more toxic than their ingredients alone. This means that testing only ingredients gives the false appearance of lower-than-actual toxic heavy metal levels. 66. Based on the foregoing, reasonable consumers like Plaintiff, would consider the inclusion of these toxic metals in the Baby Food Products to be a material fact when considering which baby food to purchase. 16 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 17Page of 3418 PageID# of 36 17 67. Defendant knew that properly and sufficiently monitoring and testing for heavy metals in its ingredients and Baby Food Products was critical. 68. Finally, Defendant knew or should have known that it could control the levels of heavy metals in the Baby Food Products by properly monitoring their ingredients for heavy metals and adjusting any formulation or diet to reduce ingredients that contained higher levels of heavy metals.",
"69. Defendant also knew it was not properly and sufficiently testing for the presence of heavy metals in the Baby Food Products. 70. Defendant knew or should have known that consumers reasonably expected it to test for and monitor the presence of heavy metals in the Baby Food Products and ingredients. 71. Defendant knew, yet failed to disclose, its lack of regular testing and knowledge of the risk or presence of heavy metals in the Baby Food Products. 72. The statements, representations, partial disclosures, and omissions made by Defendant are crafted to deceive the public as they create an image that the Baby Food Products are healthy, nutritious, and made from the best ingredients, are subject to strict quality control, and are free of heavy metals. 73. Reasonable consumers, such as Plaintiff and the Class members, would have no reason to doubt Defendant’s statements regarding the quality of the Baby Food Products. Defendant’s failure to disclose and/or concealment of the toxins in the Baby Food Products together with the misrepresentations alleged herein that were intended to, and did, cause consumers like Plaintiff to purchase products they otherwise would not have if the true quality and ingredients were disclosed. 17 CaseCase 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 18Page of 3419 PageID# of 36 18 74. As a result of the wrongful marketing, including the misleading, deceptive, unfair and false representations and omissions, Defendant capitalized on and reaped enormous profits from consumers like Plaintiff who paid the purchase price or a premium for the Baby Food Products that were not as advertised. PLAINTIFF’S RELIANCE IS REASONABLE AND FORESEEABLE 75. Plaintiff and members of the Classes reasonably relied on Defendant's claims, warranties, representations, advertisements, and other marketing concerning the qualities and benefits of the Baby Food Products in making their purchase decisions. 76. Had Plaintiff and members of the Classes known of Defendant's misrepresentations and material omissions regarding the presence of toxic heavy metals in its Baby Food Products, Plaintiff and members of the Classes would not have purchased the Baby Food Products. DEFENDANT BREACHED ITS EXPRESS AND IMPLIED WARRANTIES 77. Defendant had sufficient notice of its breaches of express and implied warranties.",
"Defendant has, and had, exclusive knowledge of the physical and chemical properties of the Baby Food Products. Moreover, Defendant was put on notice by the Healthy Babies Bright Future Report released in October 2019, regarding the inclusion of heavy metals or other toxins in the Baby Food Products. See https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2020- 04/BabyFoodReport_ENGLISH_R6.pdf. 78. Defendant knew that consumers such as Plaintiff and the proposed members of the Classes would be the end purchasers or users of the Baby Food Products and the target of its advertising and statements. 18 CaseCase 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 19Page of 3420 PageID# of 36 19 79. Defendant intended the warranties, advertising, statements, and other representations would be considered by the end purchasers of the Baby Food Products, including Plaintiff and the proposed Class. 80. Defendant directly marketed the Baby Food Products to Plaintiff and the proposed Classes through statements on its website, advertising, and packaging on the Baby Food Products. 81. Plaintiff and the proposed Classes are the ultimate purchasers and intended beneficiaries of the express and implied warranties. CLASS ACTION ALLEGATIONS 82. Plaintiff brings this action individually and on behalf of all other persons similarly situated pursuant to Rules 23(a) and 23(b)(2) and (3) of the Federal Rules of Civil Procedure. Notwithstanding, at this time, Plaintiff brings this action and seeks certification of the following proposed class: All persons within the United States who purchased the Baby Food Products for household or business use, and not for resale, within the applicable statute of limitations period (the “Class”).",
"83. Plaintiff Moore also brings this action individually and on behalf of the following Colorado Subclass: All persons who are citizens of the State of Colorado, who, purchased the Baby Food Products for household or business use and not for resale during any applicable statute of limitations period (the “Colorado Subclass”). 84. Excluded from the proposed Class and Subclass are the Defendant, and any entities in which the Defendant has a controlling interest, the Defendant’s agents, employees, and legal representatives, any judge to whom this action is assigned to this matter and any member of such judge’s staff and immediate family. 19 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 20Page of 3421 PageID# of 36 20 85. Certification of Plaintiff’s claims for class-wide treatment is appropriate because Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as would be used to prove those elements in individual actions alleging the same claims.",
"86. Numerosity – Federal Rule of Civil Procedure 23(a)(1) -- The members of the Classes are so numerous that their individual joinder herein is impracticable. On information and belief, members of the Classes number in the thousands or more. The number of members in the Classes is presently unknown to Plaintiff but may be verified by Defendant’s records. Members of the Classes may be notified of the pendency of this action by mail, e-mail, Internet postings, and/or publication. 87. Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) and 23(b)(3) – Common questions of law and fact exist as to all members of the Classes and predominate over individual questions. Such common questions of law or fact include, but are not limited to: a. Whether Defendant owed a duty of care; b. Whether Defendant knew or should have known that the Baby Food Products contained heavy metals; c. Whether the Baby Food Products contain dangerous levels of toxic heavy metals; d. Whether the marketing, advertising, packaging, and other promotional materials for the Baby Food Products are deceptive; e. Whether Defendant’s actions violate the state consumer fraud statutes identified below; f. Whether Defendant’s actions constitute common law fraud; 20 CaseCase 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 21Page of 3422 PageID# of 36 21 g. Whether Plaintiff and members of the Classes were damaged by Defendant’s conduct as alleged herein; h. Whether Defendant was unjustly enriched at the expense of Plaintiff and the members of the Classes; and i. Whether Plaintiff and the members of the Classes are entitled to injunctive relief. 88. Typicality – Federal Rule of Civil Procedure 23(a)(3) – The claims of the named Plaintiff are typical of the claims of the other members of the Class and the subclass. All members of the Classes were similarly injured by Defendant’s conduct as described herein, and there are no defenses available to Defendant that are unique to Plaintiff or any particular Class members. 89. Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4) – Plaintiff is an adequate Class representative because her interests do not conflict with the interests of other Class members; she has retained class counsel competent to prosecute class actions and financially able to represent the Classes. 90. Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2) – Defendant has acted or refused to act on grounds generally applicable to Plaintiff and the other Class members, thereby making appropriate final injunctive relief and declaratory relief, as described below, with respect to Class members as a whole.",
"In particular, Plaintiff seeks to certify a Classes to enjoin Defendant from selling or otherwise distributing Baby Food Products until such time that Defendant can demonstrate to the Court’s satisfaction that its baby foods are accurately labeled. 91. Superiority – Federal Rule of Civil Procedure 23(b)(3) – A class action is superior to any other means of adjudication for this controversy. It would be impracticable for members of the Classes to individually litigate their own claims against Defendant because the 21 CaseCase 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 22Page of 3423 PageID# of 36 22 damages suffered by Plaintiff and members of the Classes are relatively small compared to the cost of individually litigating their claims. A class action provides an efficient means for adjudication with fewer management difficulties and comprehensive supervision by a single court. CAUSES OF ACTION COUNT I Breach of Express Warranty Against Defendant (On Behalf of Plaintiff and the National Class) 92. Plaintiff incorporates by reference and realleges each and every allegation detailed above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the National Class. 93.",
"Defendant marketed and sold the Baby Food Products into the stream of commerce with the intent that the Baby Food Products would be purchased by Plaintiff and the Class. 94. Defendant expressly warranted, advertised, and represented to Plaintiff and the Class that the Baby Food Products are made from the “highest quality ingredients.” 95. Defendant made these express warranties regarding the Baby Food Products’ quality, ingredients, and fitness for consumption in writing via its website, advertisements, and marketing materials. These express warranties became part of the basis of the bargain that Plaintiff and the Class entered into upon purchasing the Baby Food Products. 96. Defendant’s advertisements, warranties, and representations were made in connection with the sale of the Baby Food Products to Plaintiff and the Class. Plaintiff and the Class relied on Defendant’s advertisements, warranties, and representations regarding the Baby Food Products in deciding whether to purchase Defendant’s products. 97.",
"Defendant’s Baby Food Products do not conform to its advertisements, warranties, and representations in that they: 22 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 23Page of 3424 PageID# of 36 23 a. Are not natural or suitable for consumption by human infants; and b. Contain, or may contain, levels of certain heavy toxic metals. 98. Defendant was on notice of this breach as Gerber was aware of the included heavy metals in the Baby Food Products and based on the investigation in the Healthy Babies Bright Futures report that showed its Baby Food Products as unhealthy. 99. Because Defendant expressly warranted to Plaintiff and the Class, as the ultimate purchasers of its Baby Food Products, through warranting, packaging, advertising, and marketing that the Baby Food Products were healthy, natural, and safe for consumption and by failing to make any mention of heavy metals and/or other contaminants there is no requirement of direct privity between Gerber and Plaintiff and the Class. 100.",
"As a direct and proximate result of Defendant’s conduct, Plaintiff and the Class have suffered actual damages in that they purchase Baby Food Products that were worth less than the price they paid and they would not have purchased had they known of the risk and/or presence of heavy metals and/or other contaminants that do not conform to the products’ marketing and advertisements. 101. Plaintiff and the Class seek actual damages, injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available thereunder for Defendant’s failure to deliver goods conforming to their express warranties and resulting breach. COUNT II Breach of Implied Warranty of Merchantability Against Defendant (On Behalf of Plaintiff and the National Class) 102. Plaintiff incorporates by reference and realleges each and every allegation detailed above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the National Class.",
"23 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 24Page of 3425 PageID# of 36 24 103. Defendant is a merchant engaging in the manufacturing and supply of goods that were purchased by Plaintiff and the Class. 104. At all times mentioned herein, Defendant manufactured or supplied the Baby Food Products, and prior to the time they were purchased by Plaintiff and the Class, Defendant impliedly warranted to them that the Baby Food Products were of merchantable quality, fit for their ordinary use (consumption by babies), and conformed to the promises and affirmations of fact when they purchased the Baby Food Products. 105. The Baby Food Products were not fit for their ordinary use, consumption by babies, and did not conform to Defendant’s affirmations of fact and promises as they contained, or were at risk of containing, heavy metals, and/or unnatural or other ingredients or contaminants that do not conform to the packaging.",
"106. Defendant breached its implied warranties by selling Baby Food Products that failed to conform to the promises or affirmations of fact made on the container or label as each product contained heavy metals, and/or unnatural or other ingredients or contaminants that do not conform to the packaging. 107. As a result of its own testing and/or the public investigation by Healthy Babies Bright Futures that showed the frequent presence of heavy metals in the Baby Food Products, Defendant has been aware that its Baby Food Products are unhealthy and contaminated and thus on notice of this breach. 108. Defendant impliedly warranted to Plaintiff and the Class through the warranting, packaging, advertising, and marketing that the Baby Food Products were natural, and suitable for consumption by babies, and by failing to make any mention of heavy metals, and/or unnatural or other ingredients. 24 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 25Page of 3426 PageID# of 36 25 109.",
"As a direct and proximate result of Defendant’s conduct, Plaintiff and the Class have suffered actual damages in that Plaintiff and the Class have purchased Baby Food Products that are worth less than the price they paid and that they would not have purchased at all had they known of the presence or risk of heavy metals, and/or unnatural or other ingredients. 110. Plaintiff and the Class seek actual damages, injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available thereunder for Defendant’s failure to deliver goods conforming to their implied warranties and resulting breach. COUNT III Fraudulent Misrepresentation Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass) 111.",
"Plaintiff incorporates by reference and realleges each and every allegation contained above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the National Class or, alternatively, on behalf of the Colorado Subclass. 112. Defendant falsely represented to Plaintiff and the Class that their Baby Food Products are made from the “highest quality ingredients.” 113.",
"Defendant intentionally, knowingly, and recklessly made these misrepresentations to induce Plaintiff and the Class to purchase its Baby Food Products. 114. Defendant knew that their representations about the Baby Food Products were false or misleading due to the frequent presence of levels of heavy metals, and/or other ingredients that do not conform to the products’ marketing, advertising, and statements. Defendant allowed its advertisements, promotional materials, and websites to intentionally mislead consumers, such as Plaintiff and the Class. 115. Plaintiff and the Class did in fact rely on these misrepresentations and purchased the Baby Food Products to their detriment. Given the deceptive manner in which Defendant 25 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 26Page of 3427 PageID# of 36 26 advertised, represented, and otherwise promoted these products, Plaintiff’s and the Class’s reliance on Defendant’s misrepresentations was justifiable. 116. As a direct and proximate result of Defendant’s conduct, Plaintiff and the Class have suffered actual damages in that they purchased Baby Food Products that were worth less than the price they paid and that they would not have purchased at all had they known of the risk and/or presence of heavy metals, and/or other ingredients that do not conform to the products’ marketing, advertising, and statements.",
"117. Plaintiff and the Class seek actual damages, injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available under the laws. COUNT IV Fraud by Omission Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass) 118. Plaintiff incorporates by reference and realleges each and every allegation contained above, as though fully set forth herein. Plaintiff brings this action on behalf of herself and the National Class or, alternatively, on behalf of the Colorado Subclass. 119. Defendant concealed from and failed to disclose to Plaintiff and the Class that its Baby Food Products contained, or were at risk of containing, heavy metals, and/or other ingredients that do not conform to the products’ packaging, advertising, and statements. 120. Defendant was under a duty to disclose to Plaintiff and the Class the true quality, characteristics, ingredients and suitability of the Baby Food Products because: (1) Defendant was in a superior position to know the true state of facts about its products; (2) Defendant was in a superior position to know the actual ingredients, characteristics, and suitability of the Baby Food Products for consumption by babies; and (3) Defendant knew that Plaintiff and the Class could not reasonably have been expected to learn or discover that the Baby Food Products 26 CaseCase 1:21-cv-00277 MDL No.",
"2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 27Page of 3428 PageID# of 36 27 were misrepresented in the marketing, advertising, and websites prior to purchasing the Baby Food Products. 121. The facts concealed or not disclosed by Defendant to Plaintiff and the Class are material in that a reasonable consumer would have considered them important when deciding whether to purchase the Baby Food Products. 122. Plaintiff and the Class justifiably relied on the Defendant’s omissions to their detriment. The detriment is evident from the true quality, characteristics, and ingredients of the Baby Food Products, which is inferior when compared to how the Baby Food Products are advertised and represented by Defendant. 123. As a direct and proximate result of Defendant’s conduct, Plaintiff and the Class have suffered actual damages in that they purchased Baby Food Products that were worth less than the price they paid and that they would not have purchased at all had they known of the risk and/or presence of heavy metals, or other ingredients that do not conform to the products’ marketing, advertising, and statements.",
"124. Plaintiff and the Class seek actual damages, injunctive and declaratory relief, attorneys’ fees, costs, and any other just and proper relief available under the laws. COUNT V Negligent Misrepresentation Against Defendant (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass) 125. Plaintiff incorporates by reference and repeats and realleges all previously alleged paragraphs, as if fully alleged herein. Plaintiff brings this action on behalf of herself and the National Class or, alternatively, the Colorado Subclass. 27 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 28Page of 3429 PageID# of 36 28 126. Plaintiff reasonably placed her trust and reliance in Defendant’s representations that the Baby Food Products were marketed to her and the Class, and were healthy, nutritious, made from the best ingredients, and safe for consumption and did not contain heavy metals.",
"127. Because of the relationship between the parties, Defendant owed a duty to use reasonable care to impart correct and reliable disclosures concerning the presence of heavy metals in the Baby Food Products, or based upon its superior knowledge, having spoken, to say enough not to be misleading. 128. Defendant breached its duty to Plaintiff and the Class by providing false, misleading, and/or deceptive information regarding the nature of the Baby Food Products. 129. Plaintiff and the Class reasonably relied upon the information provided by Defendant. A reasonable consumer would have relied on Defendant’s own warranties, statements, representations, advertising, packaging, and other marketing as to the quality, make-up and ingredients of the Baby Food Products. 130. As a result of the misrepresentations, Plaintiff and the Class purchased the Baby Food Products, and purchased them at a premium. 131. Defendant failed to use reasonable care in its communications and representations to Plaintiff and the Class, especially in light of its knowledge of the risks and importance of considering ingredients to consumers when purchasing the Baby Food Products. 132.",
"By virtue of Defendant’s negligent misrepresentations, Plaintiff and the Class have been damaged in an amount to be proven at trial, or alternatively, seek rescission and disgorgement under this Count. 28 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 29Page of 3430 PageID# of 36 29 COUNT VI Unjust Enrichment (On Behalf of Plaintiff and the National Class or Alternatively the Colorado Subclass) 133. Plaintiff incorporates by reference and realleges each and every allegation contained above, as if fully set forth herein. Plaintiff brings this action on behalf of herself and the National Class or, alternatively, on behalf of the Colorado Subclass. 134.",
"Plaintiff and putative Class Members conferred a benefit on Defendant when they purchased the Baby Food Products, of which Defendant had knowledge. By its wrongful acts and omissions described herein, including selling the Baby Food Products, which contain toxic heavy metals, including arsenic, cadmium, mercury and lead, at levels above what is considered safe for babies and did not otherwise perform as represented or for the particular purpose for which they were intended, Defendant was unjustly enriched at the expense of Plaintiff and putative Class members. Plaintiff’s detriment and Defendant’s enrichment were related to and flowed from the wrongful conduct alleged in this Complaint. 135. Defendant has profited from its unlawful, unfair, misleading and deceptive practices at the expense of Plaintiff and putative Class members under circumstances in which it would be unjust for Defendant to be permitted to retain the benefit.",
"It would be inequitable for Defendant to retain the profits, benefits and other compensation obtained from its wrongful conduct as described herein in connection with selling the Baby Food Products. 136. Defendant has been unjustly enriched in retaining the revenue derived from the Class members’ purchases of the Baby Food Products, because Defendant manufactured defective Baby Food Products, and misrepresented the nature of the Baby Food Products and/or their ingredients, and knowingly marketed and promoted dangerous and defective products that caused 29 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 30Page of 3431 PageID# of 36 30 injuries to Plaintiff and the Class, and because they would not have purchased the products if the true facts concerning the Baby Food Products had been known.",
"137. Plaintiff and putative Class members have been damaged as a direct and proximate result of Defendant’s unjust enrichment because they would not have purchased the Baby Food Products had the presence of heavy metals been adequately disclosed and certainly would not have purchased them had they known the true nature of the Baby Food Products and the misstatements regarding what the Baby Food Products were and what they contained. 138. Defendant either knew or should have known that payments rendered by Plaintiff or putative Class members were given or received with the expectation that the Baby Food Products were made from “the highest quality ingredients,” as represented by Defendant in advertising, on Defendant’s websites, and on the Baby Food Product’s packaging. It is inequitable for Defendant to retain the benefit of payments under these circumstances. 139. Plaintiff and putative Class Members are entitled to recover from Defendant all amounts wrongfully collected and improperly retained by Defendant. 140.",
"Under these circumstances, there is no requirement for Plaintiff and the Class to demonstrate privity with Defendant. 141. As a direct and proximate result of Defendant’s wrongful conduct, and unjust enrichment, Plaintiff and putative Class Members are entitled to restitution of, disgorgement of, and/or imposition of a constructive trust upon profits, benefits and other compensation obtained by Defendant for its inequitable and unlawful conduct. /// /// /// 30 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 31Page of 3432 PageID# of 36 31 COUNT VII Violation of Colorado Consumer Protection Act Colo. Rev. Stat. §§6-6-101, et seq. (On Behalf of Plaintiff and the Colorado Subclass) 142. Plaintiff incorporates by reference and realleges each and every allegation contained above, as if fully set forth herein. Plaintiff brings this action on behalf of herself and on behalf of the Colorado Subclass.",
"143. Defendant is a “person” as defined by Colo. Rev. Stat. §6-1-102(6). 144. Defendant engaged in “sales” as defined by Colo. Rev. Stat. §6-1-102(10). 145. Plaintiff Moore and Colorado Subclass members, as well as the general public, are actual or potential consumers of the products offered by Defendant or its successors in interest to actual consumers. 146. Defendant engaged in deceptive trade practices in the course of its business, in violation of Colo. Rev. Stat. §6-1-105(1)(g) by, among other things, representing that the products are of a particular standard, quality or grade, while they knew or should know that they are of another. 147. Defendant’s representations or omissions were material because they were likely to deceive reasonable consumers. 148. As a direct and proximate result of Defendant’s deceptive trade practices, Plaintiff Moore and the Colorado Subclass members suffered injuries in fact to their legally protected interests.",
"149. The challenged practices described above caused the injuries in fact to Plaintiff and the Colorado Subclass. 31 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 32Page of 3433 PageID# of 36 32 150. Defendant’s deceptive trade practices significantly impact the public as actual or potential consumers of Defendant’s Baby Food Products, because Defendant is one of, if not the, largest baby food manufacturers in the country. 151. Plaintiff Moore and the Colorado Subclass members seek all monetary and non- monetary relief allowed by law, including the greater of: (a) actual damages; (b) $500; or (c) three times actual damages for Defendant’s bad faith conduct, injunctive relief; and reasonable attorneys’ fees and costs. 152. Plaintiff Moore and the Colorado Subclass repeats and realleges each and every allegation above, as though fully set forth herein. REQUEST FOR RELIEF 153. WHEREFORE, Plaintiff, individually and on behalf of the other members of the Classes proposed in this Complaint, respectfully requests that the Court enter judgment as follows: A. Declaring that this action is a proper class action, certifying the Classes as requested herein, designating Plaintiff and Class Representative, and appointing the undersigned counsel as Class Counsel for the Classes; B.",
"An order enjoining Defendant from selling Baby Food Products until the higher and/or unsafe levels of heavy metals are removed; C. An order enjoining Defendant from selling Baby Food Products in any manner suggesting or implying that they are healthy, nutritious, and safe for consumption; D. An order requirinig Defendant to engage in a corrective advertising campaign and engage in any further necessary affirmative injunctive relief, such as recalling existing products; E. Ordering Defendant to pay actual damages to Plaintiff and the other members of the Classes; 32 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 33Page of 3434 PageID# of 36 33 F. Ordering Defendant to pay restitution to Plaintiff and the other members of the Classes; G. Ordering Defendant to pay punitive damages, as allowable by law, to Plaintiff and the other members of the Classes; H. Ordering Defendant to pay statutory damages, as provided by the applicable state consumer protection statutes invoked herein, to Plaintiff and the other members of the Classes; I.",
"Ordering Defendant to pay reasonable attorneys’ fees and litigation costs to Plaintiff and the other members of the Class as allowable by law; J. Ordering Defendant to pay both pre- and post-judgment interest as allowable by law, on any amounts awarded; and K. Ordering such other and further relief as may be just and proper. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury of all claims in this Complaint so triable. Plaintiff also respectfully requests leave to amend this Complaint to conform to the evidence, if such amendment is needed for trial. Dated: March 4, 2021 Bonnett Fairbourn Friedman & Balint PC s/Francis J. Balint, Jr. Francis J. Balint, Jr. Joshua Gunnell House, Suite 4 4023 Chain Bridge Road Fairfax, VA 22030 Telephone: (602) 776-5903 Fax: (602) 274-1199 Email: fbalint@bffb.com and Elaine A. Ryan 2325 E. Camelback Rd., Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Fax: (602) 274-1199 33 CaseCase 1:21-cv-00277 MDL No. 2997 Document Document 1 Filed 1-2603/04/21 Filed 03/08/21 Page 34Page of 3435 PageID# of 36 34 eryan@bffb.com Barrack, Rodos & Bacine Mark R. Rosen Jeffrey A. Barrack 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Fax: (215) 963-0838 mrosen@barrack.com jbarrack@barrack.com and Stephen R. Basser 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 230-0800 Fax: (619) 230-1874 sbasser@barrack.com John G. Emerson Emerson Firm, PLLC 2500 Wilcrest, Suite 300 Houston, TX 77042 Telephone: (800)-551-8649 Fax: (501)-286-4659 jemerson@emersonfirm.com 34 3/5/2021 Case MDL No.",
"2997 Document 1-26 Filed CM/ECF - vaed03/08/21 Page 36 of 36 U.S. District Court Eastern District of Virginia - (Alexandria) CIVIL DOCKET FOR CASE #: 1:21-cv-00277 Moore v. Gerber Products Company Date Filed: 03/04/2021 Assigned to: Jury Demand: Plaintiff Cause: 28:1332 Diversity-Fraud Nature of Suit: 370 Other Fraud Jurisdiction: Diversity Plaintiff Jamie Moore represented by Francis J. Balint , Jr. Bonnett Fairbourn Friedman & Balint PC 4023 Chain Bridge Road Suite 4 Fairfax, VA 22030 602-776-5903 Fax: 602-274-1199 Email: fbalint@bffb.com ATTORNEY TO BE NOTICED Defendant Gerber Products Company Date Filed # Docket Text 03/04/2021 1 Complaint ( Filing fee $ 402, receipt number 0422-7657475. ), filed by Jamie Moore. (Attachments: # 1 Civil Cover Sheet)(Balint, Francis) (Entered: 03/04/2021) 03/04/2021 2 Proposed Summons re 1 Complaint by Jamie Moore. (Balint, Francis) (Entered: 03/04/2021) PACER Service Center Transaction Receipt 03/05/2021 12:57:35 PACER Client Code: Login: Search 1:21-cv- Description: Docket Report Criteria: 00277 Billable 1 Cost: 0.10 Pages: https://ecf.vaed.uscourts.gov/cgi-bin/DktRpt.pl?29042879542657-L_1_0-1 1/1"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/164138986/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Certifications I, Charles E. Porter, the Principal Executive Officer of the funds listed on Attachment A, certify that: 1. I have reviewed each report on Form N-Q of the funds listed on Attachment A: 2. Based on my knowledge, each report does not contain any untrue statements 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 each report; 3. Based on my knowledge, the schedules of investments included in each report fairly present in all material respects the investments of the registrant as of the end of the fiscal quarter for which the report is filed; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrants 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 each 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 registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report, based on such evaluation; and d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrants other certifying officer and I have disclosed to each registrants auditors and the audit committee of each registrants 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 each 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 each registrants internal control over financial reporting. /s/ Charles E. Porter Date: June 24, 2008 Charles E. Porter Principal Executive Officer Certifications I, Steven D. Krichmar, the Principal Financial Officer of the funds listed on Attachment A, certify that: 1. I have reviewed each report on Form N-Q of the funds listed on Attachment A: 2. Based on my knowledge, each report does not contain any untrue statements 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 each report; 3. Based on my knowledge, the schedules of investments included in each report fairly present in all material respects the investments of the registrant as of the end of the fiscal quarter for which the report is filed; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrants 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 each 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 registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report, based on such evaluation; and d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrants other certifying officer and I have disclosed to each registrants auditors and the audit committee of each registrants 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 each 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 each registrants internal control over financial reporting. /s/ Steven D. Krichmar Date: June 24, 2008 Steven D. Krichmar Principal Financial Officer Attachment A NQ Period (s) ende d April 30, 2008 035 Putnam AMT Free Insured Municipal Fund 036 Putnam Tax-Free High Yield Fund 001 The George Putnam Fund of Boston 007 Putnam Voyager Fund 2AQ Putnam Research Fund 006 Putnam Vista Fund 073 Putnam Premier Income Trust 024 Putnam OTC Emerging Growth Fund 003 Putnam Investors Fund 2AP Putnam Growth Opportunities Fund 7CR Putnam RetirementReady 2050 Fund 40M Putnam RetirementReady 2045 Fund 40F Putnam RetirementReady 2040 Fund 49Y Putnam RetirementReady 2035 Fund 49R Putnam RetirementReady 2030 Fund 49K Putnam RetirementReady 2025 Fund 49D Putnam RetirementReady 2020 Fund 48W Putnam RetirementReady 2015 Fund 48I Putnam RetirementReady 2010 Fund 48P Putnam RetirementReady Maturity Fund | [
"Certifications I, Charles E. Porter, the Principal Executive Officer of the funds listed on Attachment A, certify that: 1. I have reviewed each report on Form N-Q of the funds listed on Attachment A: 2. Based on my knowledge, each report does not contain any untrue statements 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 each report; 3. Based on my knowledge, the schedules of investments included in each report fairly present in all material respects the investments of the registrant as of the end of the fiscal quarter for which the report is filed; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrants 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 each 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 registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report, based on such evaluation; and d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5.",
"The registrants other certifying officer and I have disclosed to each registrants auditors and the audit committee of each registrants 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 each 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 each registrants internal control over financial reporting. /s/ Charles E. Porter Date: June 24, 2008 Charles E. Porter Principal Executive Officer Certifications I, Steven D. Krichmar, the Principal Financial Officer of the funds listed on Attachment A, certify that: 1. I have reviewed each report on Form N-Q of the funds listed on Attachment A: 2.",
"Based on my knowledge, each report does not contain any untrue statements 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 each report; 3. Based on my knowledge, the schedules of investments included in each report fairly present in all material respects the investments of the registrant as of the end of the fiscal quarter for which the report is filed; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrants 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 each 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 registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report, based on such evaluation; and d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5.",
"The registrants other certifying officer and I have disclosed to each registrants auditors and the audit committee of each registrants 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 each 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 each registrants internal control over financial reporting. /s/ Steven D. Krichmar Date: June 24, 2008 Steven D. Krichmar Principal Financial Officer Attachment A NQ Period (s) ende d April 30, 2008 035 Putnam AMT Free Insured Municipal Fund 036 Putnam Tax-Free High Yield Fund 001 The George Putnam Fund of Boston 007 Putnam Voyager Fund 2AQ Putnam Research Fund 006 Putnam Vista Fund 073 Putnam Premier Income Trust 024 Putnam OTC Emerging Growth Fund 003 Putnam Investors Fund 2AP Putnam Growth Opportunities Fund 7CR Putnam RetirementReady 2050 Fund 40M Putnam RetirementReady 2045 Fund 40F Putnam RetirementReady 2040 Fund 49Y Putnam RetirementReady 2035 Fund 49R Putnam RetirementReady 2030 Fund 49K Putnam RetirementReady 2025 Fund 49D Putnam RetirementReady 2020 Fund 48W Putnam RetirementReady 2015 Fund 48I Putnam RetirementReady 2010 Fund 48P Putnam RetirementReady Maturity Fund"
]
| 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 |
|
Pratt, J. The defendant’s interference with the plaintiff’s water rights in this case presents two phases: One, the ordinary case of flooding his land by means of flush-boards on his dam, which presents chiefly a simple question *804of fact. The other, the withdrawal of the water from the farm under circumstances quite peculiar, but no more difficult to resolve when they are once clearly understood. It seems that plaintiff’s farm is at the southwesterly end of Haggard’s pond, a body of water having no defined stream, which, m consequence of defendant’s dam, spreads out into a smaller pond, and these waters, thus dammed, set back through a channel which connects the two ponds. Thus the waters of Haggard’s pond have, as it were, ebbed and flowed through this channel for nearly a century according to the use or disuse of the dam on the stream. ' The plaintiff’s farm is located at the part of this Haggard pond most remote from this connecting channel. It is obvious that the natural high water mark in the stream would indicate the natural high water mark in this “setback”— the Haggard pond. It is also obvious that the natural low water mark of the stream might be lower than that of the set back, for this reason: The natural bottom of the connecting channel would control the flow of water out from this set back. In 1845, defendant’s father, while occupying the mill privileges and riparian rights on the stream and at this channel, conceived the idea of utilizing this set back pond as a reservoir in aid of his mill pond on the stream, by dredging this connecting channel to the depth of three or four feet below its natural level. In other words, he formerly could use the waters of this set back pond only to the depth of say four feet below natural high water mark; but by means of the dredgings he secured an increased storage depth of say eight feet by lowering this natural dam—the natural bottom of the channel. In ordinarily wet seasons there would be no occasion to use the artificial part of this channel, but, in times of great drought, he would sometimes draw down the set back pond so that the land at plaintiff’s end of the pond would be laid bare. On such occasions plaintiff’s father demanded payment for this interference with his right to have the water of the pond on his farm, and defendant’s father conceded the wrongful interference and paid for it. Once he refused, but there was a law suit and he was made to pay for it. That was in 1881-'1882. It is thus obvious that plaintiff’s predecessors in title, so far at least as this evidence discloses, have always insisted on the right to this water in the set back pond, to the level of the natural bottom of this connecting channel, and there is no evidence of its actual use by anybody except on these conditions. There was no injury to the farm unless the water was drawn so low that the artificial part of the channel began to operate. The simple fact that the artificial part of the channel was there under the water, no matter when it was dredged, whether in 1845 or in 1745, had no effect on plaintiff’s rights, *805until it was used in its distinctive capacity, to produce injury by drawing the water to a lower level than thus natural low water mark. It was as harmless as an unopened jackknife in a man’s pocket. It did no more injury to plaintiff’s father’s farm than a sunken log in plaintiff’s stream or a shovel full of earth removed from its bottom. But instantly when it began to operate so as to draw the water from the set-back pond to a level below the natural bottom of this connecting channel as nature left it, then, and not until then, did it begin to exhaust the natural body of water which the farm owner was justly entitled to keep for his own uses. It was therefore the user and not the mere existence of the artificial part of this channel of which the farm owner had the right to complain. I have carefully examined the evidence, and find it sufficient to sustain the findings of the learned trial judge that, by means of the artificial part of the channel, the defendant, at the times indicated, improperly deprived the plaintiff of water which nature would otherwise have supplied for his stock and other purposes; and I am clear that there has never been an acquiescence in an adverse user. The finding that the flush boards occasionally flooded plaintiff’s lands above natural high-water mark, is also sustained by sufficient evidence. It may very well be that the particular facts stated by the surveyors and engineers were not contradicted; but it is equally true that the inferences deducted from those facts were directly in conflict with inferences properly drawn from facts which old farmers and observers saw on the stones and land through their spectacles. They said that the water was higher in the pond than they had ever seen it before, and verified their observations by marks on the stones and wall about the pond. The engineers show that it ought not to have been: but the answer is, that it was higher all the same. The findings relative to the extent of the inquiry, are also supported by the evidence. The judgment should be affirmed, with costs. Dykman, J., concurs Barnard, J., not sitting. | 10-17-2022 | [
"Pratt, J. The defendant’s interference with the plaintiff’s water rights in this case presents two phases: One, the ordinary case of flooding his land by means of flush-boards on his dam, which presents chiefly a simple question *804of fact. The other, the withdrawal of the water from the farm under circumstances quite peculiar, but no more difficult to resolve when they are once clearly understood. It seems that plaintiff’s farm is at the southwesterly end of Haggard’s pond, a body of water having no defined stream, which, m consequence of defendant’s dam, spreads out into a smaller pond, and these waters, thus dammed, set back through a channel which connects the two ponds. Thus the waters of Haggard’s pond have, as it were, ebbed and flowed through this channel for nearly a century according to the use or disuse of the dam on the stream. ' The plaintiff’s farm is located at the part of this Haggard pond most remote from this connecting channel.",
"It is obvious that the natural high water mark in the stream would indicate the natural high water mark in this “setback”— the Haggard pond. It is also obvious that the natural low water mark of the stream might be lower than that of the set back, for this reason: The natural bottom of the connecting channel would control the flow of water out from this set back. In 1845, defendant’s father, while occupying the mill privileges and riparian rights on the stream and at this channel, conceived the idea of utilizing this set back pond as a reservoir in aid of his mill pond on the stream, by dredging this connecting channel to the depth of three or four feet below its natural level.",
"In other words, he formerly could use the waters of this set back pond only to the depth of say four feet below natural high water mark; but by means of the dredgings he secured an increased storage depth of say eight feet by lowering this natural dam—the natural bottom of the channel. In ordinarily wet seasons there would be no occasion to use the artificial part of this channel, but, in times of great drought, he would sometimes draw down the set back pond so that the land at plaintiff’s end of the pond would be laid bare. On such occasions plaintiff’s father demanded payment for this interference with his right to have the water of the pond on his farm, and defendant’s father conceded the wrongful interference and paid for it.",
"Once he refused, but there was a law suit and he was made to pay for it. That was in 1881-'1882. It is thus obvious that plaintiff’s predecessors in title, so far at least as this evidence discloses, have always insisted on the right to this water in the set back pond, to the level of the natural bottom of this connecting channel, and there is no evidence of its actual use by anybody except on these conditions. There was no injury to the farm unless the water was drawn so low that the artificial part of the channel began to operate. The simple fact that the artificial part of the channel was there under the water, no matter when it was dredged, whether in 1845 or in 1745, had no effect on plaintiff’s rights, *805until it was used in its distinctive capacity, to produce injury by drawing the water to a lower level than thus natural low water mark. It was as harmless as an unopened jackknife in a man’s pocket. It did no more injury to plaintiff’s father’s farm than a sunken log in plaintiff’s stream or a shovel full of earth removed from its bottom. But instantly when it began to operate so as to draw the water from the set-back pond to a level below the natural bottom of this connecting channel as nature left it, then, and not until then, did it begin to exhaust the natural body of water which the farm owner was justly entitled to keep for his own uses.",
"It was therefore the user and not the mere existence of the artificial part of this channel of which the farm owner had the right to complain. I have carefully examined the evidence, and find it sufficient to sustain the findings of the learned trial judge that, by means of the artificial part of the channel, the defendant, at the times indicated, improperly deprived the plaintiff of water which nature would otherwise have supplied for his stock and other purposes; and I am clear that there has never been an acquiescence in an adverse user. The finding that the flush boards occasionally flooded plaintiff’s lands above natural high-water mark, is also sustained by sufficient evidence. It may very well be that the particular facts stated by the surveyors and engineers were not contradicted; but it is equally true that the inferences deducted from those facts were directly in conflict with inferences properly drawn from facts which old farmers and observers saw on the stones and land through their spectacles. They said that the water was higher in the pond than they had ever seen it before, and verified their observations by marks on the stones and wall about the pond.",
"The engineers show that it ought not to have been: but the answer is, that it was higher all the same. The findings relative to the extent of the inquiry, are also supported by the evidence. The judgment should be affirmed, with costs. Dykman, J., concurs Barnard, J., not sitting."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8330856/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 1 of 20
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
) In re: ) Chapter 11 ) CENTER CITY HEALTHCARE, LLC d/b/a ) HAHNEMANN UNIVERSITY HOSPITAL, ) Case No. 19-11466 (MFW) et al.,1 ) ) Jointly Administered Debtors. ) ) Objection Deadline: January 21, 2021 at 4:00 p.m. Hearing Date: Only if an objection is filed )
SUMMARY COVER SHEET TO THE SIXTEENTH MONTHLY FEE APPLICATION OF SAUL EWING ARNSTEIN & LEHR LLP, COUNSEL TO THE DEBTORS, FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR THE PERIOD FROM OCTOBER 1, 2020 THROUGH OCTOBER 31, 2020
Name of Applicant: Saul Ewing Arnstein & Lehr LLP Authorized to Provide Professional Services to: Debtors and Debtors-in-Possession Date of Retention: Nunc pro tunc to June 30, 2019 Period for which compensation and reimbursement is sought: October 1, 2020 through October 31, 2020 Amount of Compensation sought as actual, $476,292.15 reasonable and necessary: (80% of which is $381,033.72) Amount of Expense Reimbursement sought as actual, reasonable and necessary: $24,949.36
This is an: X monthly ___ interim ___ final application.
Saul Ewing Arnstein & Lehr LLP intends to seek compensation in connection with the preparation of this Application at a later date.
1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Center City Healthcare, LLC (3341), Philadelphia Academic Health System, LLC (8681), St. Christopher’s Healthcare, LLC (8395), Philadelphia Academic Medical Associates, LLC (8165), HPS of PA, L.L.C. (1617), SCHC Pediatric Associates, L.L.C. (0527), St. Christopher’s Pediatric Urgent Care Center, L.L.C. (6447), SCHC Pediatric Anesthesia Associates, L.L.C. (2326), StChris Care at Northeast Pediatrics, L.L.C. (4056), TPS of PA, L.L.C. (4862), TPS II of PA, L.L.C. (5534), TPS III of PA, L.L.C. (5536), TPS IV of PA, L.L.C. (5537), and TPS V of PA, L.L.C. (5540). The Debtors’ mailing address is 216 North Broad Street, 4th Floor, Philadelphia, Pennsylvania 19102.
37903817.2 12/31/2020 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 2 of 20
Prior Applications:
Date and Filing Period Requested Fees Requested Approved Approved Unapproved CNO Date Docket No. Expenses Fees Expenses Fees/ Expenses and Docket No.
06/30/2019 09/20/2019 through 10/14/2019 D.I. 752 07/31/2019 $649,127.65 $9,401.98 $649,127.65 $9,401.98 $0.00 D.I. 850
08/01/2019 10/18/2019 through 11/08/2019 D.I. 880 08/31/2019 $629,870.40 $39,528.38 $629,870.40 $39,528.38 $0.00 D.I. 973
09/01/2019 11/08/2019 through 12/03/2019 D.I. 974 09/30/2019 $515,905.90 $24,370.50 $515,905.90 $24,370.50 $0.00 D.I. 1084
10/01/2019 12/18/2019 through 01/08/2020 D.I. 12093 10/31/2019 $390,494.40 $13,183.61 $390,494.40 $13,183.61 $0.00 D.I. 1303
11/01/2019 01/08/2020 through 01/30/2020 D.I. 1300 11/30/2019 $335,436.85 $2,998.24 $335,436.85 $2,998.24 $0.00 D.I. 1376
12/01/2019 02/27/2020 through 04/02/2020 D.I. 1433 12/31/2019 $506,526.70 $3,453.00 $506,526.70 $3,453.00 $0.00 D.I. 1547
01/01/2020 04/09/2020 through 05/01/2020 D.I. 1568 01/31/2020 $403,578.50 $7,193.29 $403,578.50 $7,193.29 $0.00 D.I. 1612
02/01/2020 05/05/2020 through 05/27/2020 D.I. 1613 02/29/2020 $264,023.70 $2,537.47 $264,023.70 $2,537.47 $0.00 D.I. 1640
03/01/2020 05/27/2020 through 06/17/2020 D.I. 1638 03/31/2020 $247,941.45 $8,430.64 $247,941.45 $8,430.64 $0.00 D.I. 1672
04/01/2020 06/22/2020 through 07/21/2020 D.I. 1677 04/30/2020 $181,351.35 $5,855.15 $145,081.08 $5,855.15 $36,270.27 D.I. 1701
05/01/2020 07/30/2020 through 08/20/2020 D.I. 1716 05/31/2020 $206,838.00 $3,468.25 $165,470.40 $3,468.25 $41,367.60 D.I. 1751
06/01/2020 08/19/2020 through 09/09/2020 D.I. 1748 06/30/2020 $215,678.25 $4,772.59 $172,542.60 $4,772.59 $43,135.65 D.I. 1778
07/01/2020 09/28/2020 through 10/20/2020 D.I. 1795 07/31/2020 $223,273.80 $15,773.96 $178,619.04 $15,773.96 $44,654.76 D.I. 1834
37903817.2 12/31/2020 2 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 3 of 20
Date and Filing Period Requested Fees Requested Approved Approved Unapproved CNO Date Docket No. Expenses Fees Expenses Fees/ Expenses and Docket No.
08/01/2020 10/19/2020 through 11/11/2020 D.I. 1824 08/31/2020 $278,028.00 $5,435.78 $222,422.40 $5,435.78 $55,605.60 D.I. 1883
09/01/2020 11/30/2020 through 12/22/2020 D.I. 1937 09/30/2020 $401,875.85 $6,288.48 $321,500.68 $6,288.48 $80,375.17 D.I. 1987 TOTAL $5,449,950.80 $152,691.32 $5,148,541.75 $152,691.32 $301,409.05
37903817.2 12/31/2020 3 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 4 of 20
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
) In re: ) Chapter 11 ) CENTER CITY HEALTHCARE, LLC d/b/a ) HAHNEMANN UNIVERSITY HOSPITAL, ) Case No. 19-11466 (MFW) et al.,1 ) ) Jointly Administered Debtors. ) ) Objection Deadline: January 21, 2021 at 4:00 p.m. Hearing Date: Only if an objection is filed )
SIXTEENTH MONTHLY FEE APPLICATION OF SAUL EWING ARNSTEIN & LEHR LLP, COUNSEL TO THE DEBTORS, FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR THE PERIOD FROM OCTOBER 1, 2020 THROUGH OCTOBER 31, 2020
Saul Ewing Arnstein & Lehr LLP (“Saul Ewing” or “Applicant”), counsel to the debtors
and debtors-in-possession (the “Debtors”), hereby applies to the Court for interim allowance of
compensation for the period October 1, 2020 through October 31, 2020 (the “Application
Period”) with respect to its retention as counsel to the Debtors. In support of this Application,
Saul Ewing represents as follows:
Background
1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334.
This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Venue is proper
pursuant to 28 U.S.C. §§ 1408 and 1409.
1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Center City Healthcare, LLC (3341), Philadelphia Academic Health System, LLC (8681), St. Christopher’s Healthcare, LLC (8395), Philadelphia Academic Medical Associates, LLC (8165), HPS of PA, L.L.C. (1617), SCHC Pediatric Associates, L.L.C. (0527), St. Christopher’s Pediatric Urgent Care Center, L.L.C. (6447), SCHC Pediatric Anesthesia Associates, L.L.C. (2326), StChris Care at Northeast Pediatrics, L.L.C. (4056), TPS of PA, L.L.C. (4862), TPS II of PA, L.L.C. (5534), TPS III of PA, L.L.C. (5536), TPS IV of PA, L.L.C. (5537), and TPS V of PA, L.L.C. (5540). The Debtors’ mailing address is 216 North Broad Street, 4th Floor, Philadelphia, Pennsylvania 19102.
37903817.2 12/31/2020 4 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 5 of 20
2. The statutory bases for the relief requested herein are sections 330 and 331 of the
Bankruptcy Code.
Jurisdiction
3. On June 30, 2019 and July 1, 2019 (together, the “Petition Date”), each of the
Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtors
are operating their businesses and managing their properties as debtors in possession pursuant to
sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment of a trustee
or examiner has been made in these Chapter 11 Cases.
4. On July 15, 2019, the Office of the United States Trustee (the “UST”) appointed
the Official Committee of Unsecured Creditors of Center City Healthcare d/b/a Hahnemann
University Hospital, et al. (the “Committee”) pursuant to section 1102 of the Bankruptcy Code.
5. On August 2, 2019, the Court entered the Order Establishing Procedures for Interim
Compensation and Reimbursement of Expenses for Professionals [D.I. 341] (the “Interim
Compensation Order”), which sets forth the procedures for interim compensation and
reimbursement of expenses for all professionals in the Chapter 11 Cases.
Retention of Saul Ewing
6. On August 8, 2019, this Court entered the Order Authorizing the Employment and
Retention of Saul Ewing Arnstein & Lehr LLP as Counsel to the Debtors, Nunc Pro Tunc to the
Petition Date [D.I. 404].
Professional Services Rendered
7. During the Application Period, Saul Ewing partners, associates and
paraprofessionals rendered a total of 1,135.50 hours of professional services to the Debtors, for
which Saul Ewing requests allowance of interim compensation in the amount of $476,292.15. The
37903817.2 12/31/2020 5 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 6 of 20
blended hourly rate for the hours included in this Application is equal to $419.45 per hour,
calculated as to attorneys, paralegals and paraprofessionals. At all times, work was assigned to
the attorney, paralegal or paraprofessional with the lowest billing rate possible commensurate with
the skill, background, responsibility and expertise needed to do the work efficiently.
8. Saul Ewing’s hourly rates are set at a level designed to compensate Saul Ewing for
the work of its attorneys, paralegals and paraprofessionals and to cover fixed and routine expenses.
The hourly rates and corresponding hourly rates structure utilized by Saul Ewing in these Chapter
11 Cases are equivalent to the hourly rates and corresponding rate structure used by Saul Ewing
for other corporate restructuring and bankruptcy matters, as well as similar complex corporate,
labor, real estate and litigation matters, whether in court or otherwise, regardless of whether a fee
application is required. Attached hereto as Exhibit A is a summary of the blended hourly rates for
timekeepers who billed during the Application Period and Saul Ewing’s firm-wide range of billing
rates for its various positions.
9. Saul Ewing maintains computerized records of all time expended for the
professional services rendered in connection with these Chapter 11 Cases on behalf of the Debtors.
Attached hereto as Exhibit B is a summary of fees incurred and hours expended during the
Application Period along with a detailed, chronological itemization covering all the services
performed by Applicant. This detailed itemization complies with Del. Bankr. L.R. 2016-2(d) in
that (i) each time entry contains a separate time allotment, a description of the type of activity and
the subject matter of the activity, (ii) all time is billed in increments of one-tenth of an hour, and
(iii) time entries are presented chronologically by Applicant.
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10. Attached hereto as Exhibit C is a detailed itemization, by project category, of all
services performed by Applicant with respect to these matters during the Application Period. Non-
working travel time (to the extent applicable) is billed at 50% of normal rates.
11. Attached hereto as Exhibit D is a description of the costs actually expended by the
Applicant in the performance of services rendered as counsel to the Debtors during the Application
Period. These costs for which reimbursement is requested total $24,949.36. The breakdown of
costs includes the rate for copying charges ($.10/page) and the basis for each rate, facsimile
charges ($.25/page – outgoing transmission only), telephone charges, postage, messenger service,
outside photocopying, teleconferencing and legal research. By this Application, the Applicant
does not seek expenses for incoming facsimile transmissions.
12. Attached hereto as Exhibit E is a Declaration of Applicant with respect to the
compensation requested.
Summary of Legal Services by Project Category
13. The services rendered by Saul Ewing during the Application Period can be grouped
in the categories set forth below. The following chart is a summary of the fees and hours billed
for each project category during the Application Period.
Project Category Total Hours Total Fees Asset Sale Disposition 6.60 $4,408.00 Business Operations 80.00 $51,343.50 Case Administration 29.30 $16,941.50 Claims Analysis, Objections, Proofs of Claim and Bar Date 126.10 $53,273.50 Committee Matters 45.00 $30,070.50 Creditor Inquiries 0.50 $260.00 Employee Benefits and Pensions 1.40 $784.00 Executory Contracts and Unexpired Leases 14.20 $9,704.50 Fee/Employment Applications (Saul Ewing) 16.30 $4,432.50 Fee/Employment Applications (Other Professionals) 5.00 $1,984.50
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Project Category Total Hours Total Fees Litigation: Contested Matters and Adversary Proceedings 794.50 $345,298.00 Plan and Disclosure Statement 6.80 $4,225.00 Preparation for and Attendance at Hearing 2.10 $1,539.00 Relief from Stay and Adequate Protection 5.80 $3,793.00 UST Reports, Meetings and Issues 1.70 $1,066.00 Utilities 0.20 $90.00 TOTAL 1135.50 $529,213.50 Minus Agreed Upon Discount ($52,921.35) GRAND TOTAL 1135.50 $476,292.15
14. These categories are generally described below, with a more detailed identification
of the actual services provided set forth in Exhibit C attached hereto.
(a) Asset Sale Disposition. This category includes all matters relating to the disposition, and other post-petition uses of, property of the estate, including issues arising from the sale of substantially all of the Debtors’ assets. Time in this category includes communicating with STC OpCo, LLC (the “Buyer”) regarding a domain name transfer; reviewing various HPP-related documents regarding lease issues; and communicating with the Debtors regarding a domain name transfer, additional equipment to be sold and other sale-related issues. Saul Ewing spent 6.60 hours of attorney time on the foregoing services. Said services have a value of $4,408.00 (discounted to $3,967.20) for which Saul Ewing is seeking compensation.
Asset Sale Disposition Professionals Position Hours Compensation M. Minuti Partner 0.20 $152.00 J. Hampton Partner 2.80 $1,862.00 A. Isenberg Partner 3.60 $2,394.00 Total 6.60 $4,408.00 Minus Agreed Upon Discount ($440.80) Grand Total 6.60 $3,967.20
(b) Business Operations. This category includes all matters relating to the operation of the Debtors’ businesses. Time in this category includes communicating with various vendors regarding payment and service issues; reviewing materials regarding straddle payments, insurance policies and Pennsylvania Department of Health System (“DHS”) appeal documents; reviewing and revising corporate governance documents and a term sheet; communicating with Debtors and their non-debtor affiliates regarding
37903817.2 12/31/2020 8 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 9 of 20
corporate governance issues; preparing for and participating in a DHS administrative status conference; and communicating with the Debtors regarding, inter alia, vendor issues, case strategy, corporate governance, payroll tax returns, a DHS assessment appeal and certain regulatory and insurance issues. Saul Ewing spent 80.00 hours of attorney time on the foregoing services. Said services have a value of $51,343.50 (discounted to $46,209.15) for which Saul Ewing is seeking compensation.
Business Operations Professionals Position Hours Compensation
M. Minuti Partner 5.90 $4,484.00 J. Hampton Partner 54.10 $35,976.50 A. Isenberg Partner 0.20 $133.00 J. Englert Partner 0.80 $500.00 W. Warren Partner 7.40 $4,403.00 R. Frazier Partner 3.80 $2,261.00 M. Haar Partner 5.40 $2,943.00 M. DiSabatino Partner 0.10 $45.00 S. McGuire Associate 2.30 $598.00 Total 80.00 $51,343.50 Minus Agreed Upon Discount ($5,134.35) Grand Total 80.00 $46,209.15
(c) Case Administration. This category includes all matters related to work regarding the administration of the case. Time in this category includes updating a case calendar; analyzing the status of open motions and open issues; drafting, revising and filing notices of agenda and amended agenda; participating in meetings with the Debtors regarding case issues; and communicating with Omni Agent Solutions (“Omni”) regarding service instructions for various documents and service issues. Saul Ewing spent 29.30 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $16,941.50 (discounted to $15,247.35) for which Saul Ewing is seeking compensation.
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Case Administration Professionals Position Hours Compensation M. Minuti Partner 0.50 $380.00 J. Hampton Partner 6.10 $4,056.50 A. Isenberg Partner 15.30 $10,174.50 M. DiSabatino Partner 1.30 $585.00 M. Martinez Associate 3.90 $1,228.50 R. Warren Paraprofessional 2.20 $517.00 Total 29.30 $16,941.50 Minus Agreed Upon Discount ($1,694.15) Grand Total 29.30 $15,247.35
(d) Claims Analysis, Objections, Proofs of Claim and Bar Date. This category includes all time spent in connection with claim and bar date issues. Time in this category includes negotiating resolutions of administrative claim motions (the “Motion”); drafting, revising and filing stipulations and orders resolving the Motions; reviewing and analyzing proofs of claim and claims analyses; drafting and revising an omnibus claim objection; conducting research concerning certain priority claims; and communicating with the Debtors and Committee counsel regarding claim issues. Saul Ewing spent 126.10 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $53,273.50 (discounted to $47,946.15) for which Saul Ewing is seeking compensation.
Claims Analysis, Objections, Proofs of Claim and Bar Date Professionals Position Hours Compensation M. Minuti Partner 2.50 $1,900.00 J. Hampton Partner 7.90 $5,253.50 A. Isenberg Partner 13.80 $9,177.00 M. DiSabatino Partner 53.60 $24,120.00 M. Martinez Associate 5.00 $1,575.00 S. McGuire Associate 42.90 $11,154.00 R. Warren Paraprofessional 0.40 $94.00 Total 126.10 $53,273.50 Minus Agreed Upon Discount ($5,327.35 Grand Total 126.10 $47,946.15
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(e) Committee Matters. This category includes all time spent in connection with issues involving the Committee. Time in this category includes communicating with the Committee regarding a document request, search terms, claim issues, corporate governance and certain other case issues; reviewing and revising a consent/protective order with the Committee; preparing for and participating in calls with the Committee regarding discovery issues; and reviewing and assembling documents to produce to the Committee. Saul Ewing spent 45.00 hours of attorney time on the foregoing services. Said services have a value of $30,070.50 (discounted to $27,063.45) for which Saul Ewing is seeking compensation.
Committee Matters Professionals Position Hours Compensation
M. Minuti Partner 9.00 $6,840.00 J. Hampton Partner 32.60 $21,679.00 A. Isenberg Partner 0.10 $66.50 C. Contreras- Martinez Counsel 3.30 $1,485.00 Total 45.00 $30,070.50 Minus Agreed Upon Discount ($3,007.05) Grand Total 45.00 $27,063.45
(f) Creditor Inquiries. This category includes all matters related to communicating with creditors regarding case status and distribution inquiries. Saul Ewing spent 0.50 of an hour of attorney time on the foregoing services. Said services have a value of $260.00 (discounted to $234.00) for which Saul Ewing is seeking compensation.
Creditor Inquiries Professionals Position Hours Compensation
M. Minuti Partner 0.20 $152.00 M. DiSabatino Partner 0.10 $45.00 M. Martinez Associate 0.20 $63.00 Total 0.50 $260.00 Minus Agreed Upon Discount ($26.00) Grand Total 0.50 $234.00
(g) Employee Benefits and Pensions. This category includes all time spent in connection with various employee issues. Time in this category includes reviewing and analyzing audit materials and invoices; and drafting and revising a response regarding non-qualified deferred compensation plan
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services and termination issues. Saul Ewing spent 1.40 hours of attorney time on the foregoing services. Said services have a value of $784.00 (discounted to $705.60) for which Saul Ewing is seeking compensation.
Employee Benefits and Pensions Professionals Position Hours Compensation
Paul A. Kasicky Counsel 1.40 $784.00 Total 1.40 $784.00 Minus Agreed Upon Discount ($78.40) Grand Total 1.40 $705.60
(h) Executory Contracts and Unexpired Leases. This category includes all time spent in connection with contract and lease analysis, the assumption, assignment or rejection of executory contracts and unexpired leases, and cure claims. Time in this category includes reviewing an HSRE claim analysis; reviewing HSRE discovery and a proposed discovery order; communicating with counsel to HSRE regarding lease issues; and communicating with the Debtors regarding lease and HSRE issues. Saul Ewing spent 14.20 hours of attorney time on the foregoing services. Said services have a value of $9,704.50 (discounted to $8,734.05) for which Saul Ewing is seeking compensation.
Executory Contracts and Unexpired Leases Professionals Position Hours Compensation
M. Minuti Partner 2.50 $1,900.00 M. Burg Partner 1.20 $822.00 A. Isenberg Partner 10.50 $6,982.50 Total 14.20 $9,704.50 Minus Agreed Upon Discount ($970.45) Grand Total 14.20 $8,734.05
(i) Fee/Employment Applications (Saul Ewing). This category includes all matters related to the review and preparation of a retention application and fee applications for Saul Ewing. Time in this category includes drafting, revising and filing Saul Ewing’s fourteenth monthly and third interim fee applications and a certification of no objection on Saul Ewing’s thirteenth monthly fee application. Saul Ewing spent 16.30 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $4,432.50 (discounted to $3,989.25) for which Saul Ewing is seeking compensation.
37903817.2 12/31/2020 12 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 13 of 20
Fee/Employment Applications (Saul Ewing) Professionals Position Hours Compensation
J. Hampton Partner 0.40 $266.00 M. DiSabatino Partner 2.00 $900.00 R. Warren Paraprofessional 13.90 $3,266.50 Total 16.30 $4,432.50 Minus Agreed Upon Discount ($443.25) Grand Total 16.30 $3,989.25
(j) Fee/Employment Applications (Other Professionals). This category includes all matters related to the review and analysis and filing of retention and fee applications for other professionals in these Chapter 11 Cases. Time in this category includes revising and filing EisnerAmper LLP’s (“EisnerAmper”) monthly staffing report and a certification of no objection regarding same; negotiating a resolution to an objection to EisnerAmper’s monthly staffing report and drafting and filing a withdrawal of same; and revising and filing a supplemental Centurion retention application. Saul Ewing spent 5.00 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $1,984.50 (discounted to $1,786.05) for which Saul Ewing is seeking compensation.
Fee/Employment Applications (Other Professionals) Professionals Position Hours Compensation M. Minuti Partner 1.00 $760.00 A. Isenberg Partner 0.20 $133.00 M. DiSabatino Partner 0.70 $315.00 M. Martinez Associate 0.60 $189.00 R. Warren Paraprofessional 2.50 $587.50 Total 5.00 $1984.50 Minus Agreed Upon Discount ($198.45) Grand Total 5.00 $1,786.05
(k) Litigation: Contested Matters and Adversary Proceedings. This category includes all matters related to litigation. Time in this category includes reviewing documentation regarding estate causes of action and updating memoranda regarding same; conducting research concerning standing to assert certain estate claims and privilege issues and drafting a memoranda regarding same; drafting and revising a 2004 motion; reviewing and revising a discovery stipulation; communicating with the Debtors and non-debtor affiliates regarding discovery issues; and communicating with the Debtors
37903817.2 12/31/2020 13 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 14 of 20
and the Committee regarding the discovery issues, possible estate claims and pending litigation. Saul Ewing spent 794.50 hours of attorney and support staff time on the foregoing services. Said services have a value of $345,298.00 (discounted to $310,768.20) for which Saul Ewing is seeking compensation.
Litigation: Contested Matters and Adversary Proceedings Professionals Position Hours Compensation
J. O’Dea Partner 46.90 $38,692.50 M. Minuti Partner 52.30 $39,748.00 J. Demmy Partner 9.50 $6,792.50 E. Geekie Partner 2.50 $1,737.50 J. Hampton Partner 33.10 $22,011.50 A. Isenberg Partner 59.00 $39,235.00 A. Kline Partner 5.30 $3,365.50 M. Novick Partner 7.00 $4,095.00 A. Bilus Partner 16.50 $8,167.50 M. DiSabatino Partner 2.90 $1,305.00 P. Hromisin Counsel 29.40 $13,965.00 C. Contreras- Martinez Counsel 19.30 $8,685.00 S. Simon Associate 20.90 $7,942.00 A. Burdette Associate 7.80 $2,964.00 J. Rosenfeld Associate 97.30 $35,028.00 D. Sampson Associate 55.60 $18,904.00 J. Sweeny Associate 5.60 $1,820.00 J. Walton Associate 12.80 $4,032.00 C. McGuinness Associate 29.70 $9,058.50 J. Marty Associate 20.60 $6,283.00 C. Burns Associate 20.20 $6,161.00 C. Toll Associate 87.80 $25,023.00 G. Waterworth Associate 19.00 $5,415.00 S. McGuire Associate 26.80 $6,968.00 R. Starner Associate 90.80 $23,608.00 Z. Kizitaff Associate 12.40 $3,224.00
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Litigation A. Rosenthal Support 3.50 $1,067.50 Total 794.50 $345,298.00 Minus Agreed Upon Discount ($34,529.80) Grand Total 794.50 $310,768.20
(l) Plan and Disclosure Statement. This category includes time related to plan and disclosure issues. Time in this category includes revising and filing a motion to further extend the exclusivity period; communicating with the Committee and the UST regarding the exclusivity motion; and communicating with the Debtors and the Committee regarding plan issues. Saul Ewing spent 6.8 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $4,225.00 (discounted to $3,802.50) for which Saul Ewing is seeking compensation.
Plan and Disclosure Statement Professionals Position Hours Compensation M. Minuti Partner 1.40 $1,064.00 J. Hampton Partner 1.90 $1,263.50 A. Isenberg Partner 2.10 $1,396.50 M. DiSabatino Partner 0.80 $360.00 R. Warren Paraprofessional 0.60 $141.00 Total 6.80 $4,225.00 Minus Agreed Upon Discount ($422.50) Grand Total 6.80 $3,802.50
(m) Preparation for and Attendance at Hearing. This category includes time related to the preparation for and attendance at various court hearings. Saul Ewing spent 2.10 of an hour of attorney time on the foregoing services. Said services have a value of $1,539.00 (discounted to $1,385.10) for which Saul Ewing is seeking compensation.
Preparation for and Attendance at Hearing Professionals Position Hours Compensation M. Minuti Partner 1.50 $1,140.00 A. Isenberg Partner 0.60 $399.00 Total 2.10 $1,539.00 Minus Agreed Upon Discount ($153.90) Grand Total 2.10 $1,385.10
(n) Relief From Stay and Adequate Protection. This category includes all matters relating to relief from the automatic stay. Time in this category
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includes communicating with attorneys for personal injury claimants regarding lift stay requests; drafting, revising and filing stay relief stipulations; communicating with CMS regarding a resolution of CMS’s motion for stay relief (the “Setoff Motion”); drafting, revising and filing a certification of counsel submitting an order resolving the Setoff Motion; reviewing a motion for relief and a motion to expedite the same; communicating with the Debtors regarding the Setoff Motion and personal injury claims. Saul Ewing spent 5.80 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $3,793.00 (discounted to $3,413.70) for which Saul Ewing is seeking compensation.
Relief From Stay and Adequate Protection Professionals Position Hours Compensation
M. Minuti Partner 3.40 $2,584.00 A. Isenberg Partner 1.10 $731.50 M. DiSabatino Partner 0.80 $360.00 R. Warren Paraprofessional 0.50 $117.50 Total 5.80 $3,793.00 Minus Agreed Upon Discount ($379.30) Grand Total 5.80 $3,413.70
(o) UST Reports, Meetings and Issues. This category includes time related to the preparation of operating reports and other information required by the UST or the Court. Time in this category includes reviewing, revising and filing monthly operating reports; and communicating with the Debtors regarding monthly operating reports. Saul Ewing spent 1.70 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $1,066.00 (discounted to $959.40 for which Saul Ewing is seeking compensation.
UST Reports, Meetings and Issues Professionals Position Hours Compensation
J. Hampton Partner 0.60 $399.00 A. Isenberg Partner 0.90 $598.50
M. DiSabatino Partner 0.10 $45.00 R. Warren Paraprofessional 0.10 $23.50 Total 1.70 $1066.00 Minus Agreed Upon Discount ($106.60) Grand Total 1.70 $959.40
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(p) Utilities. This category includes time related to utilities. Time in this category includes communicating with utility provider regarding amounts outstanding. Saul Ewing spent 0.20 of an hour of attorney time on the foregoing services. Said services have a value of $90.00 (discounted to $81.00) for which Saul Ewing is seeking compensation.
Utilities Professionals Position Hours Compensation M. DiSabatino Partner 0.20 $90.00 Total 0.20 $90.00 Minus Agreed Upon Discount ($9.00) Grand Total 0.20 $81.00
(q) Expenses. Exhibit D lists expenses, such as copying costs at $.10¢ per page, postage, filing fees, transcripts, charges for telephonic Court appearances, charges for legal research and travel expenses. Saul Ewing seeks $24,949.36 in expenses.
EXPENSES
Expense Category Service Provider (if applicable) Total Expenses
E-discovery Processing Saul Ewing Arnstein & Lehr /Usage LLP $10,364.04 United States Bankruptcy Court Filing Fees (sale motion) $181.00
Legal Research Westlaw and Lexis $14,339.12 Overnight Delivery Federal Express $65.20 Total $24,949.36
Compensation Should Be Allowed
15. The foregoing services in the total amount of $476,292.15 provided by Saul Ewing
on behalf of the Debtors during the Application Period were reasonable, necessary and appropriate
to the administration of the Chapter 11 Cases.
16. The attorneys who worked on these cases during the Application Period have
various levels and areas of expertise. Accordingly, it was necessary for these attorneys to consult
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with each other on different aspects and issues relating to the Chapter 11 Cases. The attorneys
involved in this case and their areas of expertise is attached hereto as Exhibit F.
17. Section 331 of the Bankruptcy Code provides for compensation of professionals
and incorporates the standards of section 330 of the Bankruptcy Code to govern the Court’s award
of such compensation. Section 330 of the Bankruptcy Code provides that a court may award a
professional employed under section 327 of the Bankruptcy Code “reasonable compensation for
actual necessary services rendered . . . and reimbursement for actual, necessary expenses.” 11
U.S.C. § 330(a)(1). Section 330 of the Bankruptcy Code also sets forth the criteria for the award
of such compensation and reimbursement:
In determining the amount of reasonable compensation to be awarded, the court should consider the nature, extend, and the value of such services, taking into account all relevant factors, including
(a) the time spent on such services;
(b) the rates charged for such services;
(c) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(d) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and
(e) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3).
18. The services performed by Saul Ewing during the Application Period for which
compensation is sought were necessary for, and beneficial to, the Debtors and the Debtors’ estates.
Saul Ewing submits that the compensation sought is reasonable.
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19. Saul Ewing submits that the services provided to the Debtors by Saul Ewing during
these Chapter 11 Cases were necessary and appropriate given the complexity of these Chapter 11
Cases, the issues involved, the nature and extent of services provided, and the cost of comparable
services outside of bankruptcy, all of which are factors set forth in section 330 of the Bankruptcy
Code. Accordingly, Saul Ewing respectfully submits that approval of the compensation sought
for the Application Period is appropriate and should be approved.
20. Saul Ewing has reviewed the requirements of Del. Bankr. L.R. 2016-2 and believes
that this Application complies with the such requirements.
Notice 21. Notice of this Application is being provided to the Notice Parties identified in the
Interim Compensation Order and to all other parties who have requested notice pursuant to
Bankruptcy Rule 2002.
22. No prior request for the relief sought by this Application has been made to this or
any other court.
[remainder of page left intentionally blank]
37903817.2 12/31/2020 19 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 20 of 20
WHEREFORE, Saul Ewing respectfully requests that the Court enter an Order
(i) allowing, authorizing and directing payment of interim compensation in the amount of
$476,292.15 (80% of which is $381,033.72) for legal services rendered on behalf of the Debtors
during the Application Period, together with reimbursement of disbursements in the amount of
$24,949.36; and, (ii) granting such other and further relief as the Court deems just and proper.
Dated: December 31, 2020 SAUL EWING ARNSTEIN & LEHR LLP
By: /s/ Monique B. DiSabatino Mark Minuti (DE Bar No. 2659) Monique B. DiSabatino (DE Bar No. 6027) 1201 N. Market Street, Suite 2300 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6800 Fax: (302) 421-5873 mark.minuti@saul.com monique.disabatino@saul.com -and-
Jeffrey C. Hampton Adam H. Isenberg Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102 Telephone: (215) 972-7777 Fax: (215) 972-7725 jeffrey.hampton@saul.com adam.isenberg@saul.com
Counsel for Debtors and Debtors in Possession
37903817.2 12/31/2020 20 | 2020-12-31 | [
"Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 1 of 20 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) CENTER CITY HEALTHCARE, LLC d/b/a ) HAHNEMANN UNIVERSITY HOSPITAL, ) Case No. 19-11466 (MFW) et al.,1 ) ) Jointly Administered Debtors. ) ) Objection Deadline: January 21, 2021 at 4:00 p.m. Hearing Date: Only if an objection is filed ) SUMMARY COVER SHEET TO THE SIXTEENTH MONTHLY FEE APPLICATION OF SAUL EWING ARNSTEIN & LEHR LLP, COUNSEL TO THE DEBTORS, FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR THE PERIOD FROM OCTOBER 1, 2020 THROUGH OCTOBER 31, 2020 Name of Applicant: Saul Ewing Arnstein & Lehr LLP Authorized to Provide Professional Services to: Debtors and Debtors-in-Possession Date of Retention: Nunc pro tunc to June 30, 2019 Period for which compensation and reimbursement is sought: October 1, 2020 through October 31, 2020 Amount of Compensation sought as actual, $476,292.15 reasonable and necessary: (80% of which is $381,033.72) Amount of Expense Reimbursement sought as actual, reasonable and necessary: $24,949.36 This is an: X monthly ___ interim ___ final application. Saul Ewing Arnstein & Lehr LLP intends to seek compensation in connection with the preparation of this Application at a later date.",
"1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Center City Healthcare, LLC (3341), Philadelphia Academic Health System, LLC (8681), St. Christopher’s Healthcare, LLC (8395), Philadelphia Academic Medical Associates, LLC (8165), HPS of PA, L.L.C. (1617), SCHC Pediatric Associates, L.L.C. (0527), St. Christopher’s Pediatric Urgent Care Center, L.L.C. (6447), SCHC Pediatric Anesthesia Associates, L.L.C. (2326), StChris Care at Northeast Pediatrics, L.L.C. (4056), TPS of PA, L.L.C. (4862), TPS II of PA, L.L.C. (5534), TPS III of PA, L.L.C. (5536), TPS IV of PA, L.L.C.",
"(5537), and TPS V of PA, L.L.C. (5540). The Debtors’ mailing address is 216 North Broad Street, 4th Floor, Philadelphia, Pennsylvania 19102. 37903817.2 12/31/2020 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 2 of 20 Prior Applications: Date and Filing Period Requested Fees Requested Approved Approved Unapproved CNO Date Docket No. Expenses Fees Expenses Fees/ Expenses and Docket No. 06/30/2019 09/20/2019 through 10/14/2019 D.I. 752 07/31/2019 $649,127.65 $9,401.98 $649,127.65 $9,401.98 $0.00 D.I. 850 08/01/2019 10/18/2019 through 11/08/2019 D.I. 880 08/31/2019 $629,870.40 $39,528.38 $629,870.40 $39,528.38 $0.00 D.I. 973 09/01/2019 11/08/2019 through 12/03/2019 D.I. 974 09/30/2019 $515,905.90 $24,370.50 $515,905.90 $24,370.50 $0.00 D.I. 1084 10/01/2019 12/18/2019 through 01/08/2020 D.I. 12093 10/31/2019 $390,494.40 $13,183.61 $390,494.40 $13,183.61 $0.00 D.I. 1303 11/01/2019 01/08/2020 through 01/30/2020 D.I. 1300 11/30/2019 $335,436.85 $2,998.24 $335,436.85 $2,998.24 $0.00 D.I. 1376 12/01/2019 02/27/2020 through 04/02/2020 D.I. 1433 12/31/2019 $506,526.70 $3,453.00 $506,526.70 $3,453.00 $0.00 D.I. 1547 01/01/2020 04/09/2020 through 05/01/2020 D.I.",
"1568 01/31/2020 $403,578.50 $7,193.29 $403,578.50 $7,193.29 $0.00 D.I. 1612 02/01/2020 05/05/2020 through 05/27/2020 D.I. 1613 02/29/2020 $264,023.70 $2,537.47 $264,023.70 $2,537.47 $0.00 D.I. 1640 03/01/2020 05/27/2020 through 06/17/2020 D.I. 1638 03/31/2020 $247,941.45 $8,430.64 $247,941.45 $8,430.64 $0.00 D.I. 1672 04/01/2020 06/22/2020 through 07/21/2020 D.I. 1677 04/30/2020 $181,351.35 $5,855.15 $145,081.08 $5,855.15 $36,270.27 D.I. 1701 05/01/2020 07/30/2020 through 08/20/2020 D.I. 1716 05/31/2020 $206,838.00 $3,468.25 $165,470.40 $3,468.25 $41,367.60 D.I. 1751 06/01/2020 08/19/2020 through 09/09/2020 D.I. 1748 06/30/2020 $215,678.25 $4,772.59 $172,542.60 $4,772.59 $43,135.65 D.I. 1778 07/01/2020 09/28/2020 through 10/20/2020 D.I. 1795 07/31/2020 $223,273.80 $15,773.96 $178,619.04 $15,773.96 $44,654.76 D.I. 1834 37903817.2 12/31/2020 2 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 3 of 20 Date and Filing Period Requested Fees Requested Approved Approved Unapproved CNO Date Docket No.",
"Expenses Fees Expenses Fees/ Expenses and Docket No. 08/01/2020 10/19/2020 through 11/11/2020 D.I. 1824 08/31/2020 $278,028.00 $5,435.78 $222,422.40 $5,435.78 $55,605.60 D.I. 1883 09/01/2020 11/30/2020 through 12/22/2020 D.I. 1937 09/30/2020 $401,875.85 $6,288.48 $321,500.68 $6,288.48 $80,375.17 D.I. 1987 TOTAL $5,449,950.80 $152,691.32 $5,148,541.75 $152,691.32 $301,409.05 37903817.2 12/31/2020 3 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 4 of 20 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) CENTER CITY HEALTHCARE, LLC d/b/a ) HAHNEMANN UNIVERSITY HOSPITAL, ) Case No. 19-11466 (MFW) et al.,1 ) ) Jointly Administered Debtors. ) ) Objection Deadline: January 21, 2021 at 4:00 p.m. Hearing Date: Only if an objection is filed ) SIXTEENTH MONTHLY FEE APPLICATION OF SAUL EWING ARNSTEIN & LEHR LLP, COUNSEL TO THE DEBTORS, FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR THE PERIOD FROM OCTOBER 1, 2020 THROUGH OCTOBER 31, 2020 Saul Ewing Arnstein & Lehr LLP (“Saul Ewing” or “Applicant”), counsel to the debtors and debtors-in-possession (the “Debtors”), hereby applies to the Court for interim allowance of compensation for the period October 1, 2020 through October 31, 2020 (the “Application Period”) with respect to its retention as counsel to the Debtors.",
"In support of this Application, Saul Ewing represents as follows: Background 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Center City Healthcare, LLC (3341), Philadelphia Academic Health System, LLC (8681), St. Christopher’s Healthcare, LLC (8395), Philadelphia Academic Medical Associates, LLC (8165), HPS of PA, L.L.C. (1617), SCHC Pediatric Associates, L.L.C. (0527), St. Christopher’s Pediatric Urgent Care Center, L.L.C. (6447), SCHC Pediatric Anesthesia Associates, L.L.C. (2326), StChris Care at Northeast Pediatrics, L.L.C.",
"(4056), TPS of PA, L.L.C. (4862), TPS II of PA, L.L.C. (5534), TPS III of PA, L.L.C. (5536), TPS IV of PA, L.L.C. (5537), and TPS V of PA, L.L.C. (5540). The Debtors’ mailing address is 216 North Broad Street, 4th Floor, Philadelphia, Pennsylvania 19102. 37903817.2 12/31/2020 4 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 5 of 20 2. The statutory bases for the relief requested herein are sections 330 and 331 of the Bankruptcy Code. Jurisdiction 3. On June 30, 2019 and July 1, 2019 (together, the “Petition Date”), each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code.",
"The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment of a trustee or examiner has been made in these Chapter 11 Cases. 4. On July 15, 2019, the Office of the United States Trustee (the “UST”) appointed the Official Committee of Unsecured Creditors of Center City Healthcare d/b/a Hahnemann University Hospital, et al. (the “Committee”) pursuant to section 1102 of the Bankruptcy Code. 5. On August 2, 2019, the Court entered the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses for Professionals [D.I. 341] (the “Interim Compensation Order”), which sets forth the procedures for interim compensation and reimbursement of expenses for all professionals in the Chapter 11 Cases. Retention of Saul Ewing 6. On August 8, 2019, this Court entered the Order Authorizing the Employment and Retention of Saul Ewing Arnstein & Lehr LLP as Counsel to the Debtors, Nunc Pro Tunc to the Petition Date [D.I.",
"404]. Professional Services Rendered 7. During the Application Period, Saul Ewing partners, associates and paraprofessionals rendered a total of 1,135.50 hours of professional services to the Debtors, for which Saul Ewing requests allowance of interim compensation in the amount of $476,292.15. The 37903817.2 12/31/2020 5 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 6 of 20 blended hourly rate for the hours included in this Application is equal to $419.45 per hour, calculated as to attorneys, paralegals and paraprofessionals. At all times, work was assigned to the attorney, paralegal or paraprofessional with the lowest billing rate possible commensurate with the skill, background, responsibility and expertise needed to do the work efficiently. 8. Saul Ewing’s hourly rates are set at a level designed to compensate Saul Ewing for the work of its attorneys, paralegals and paraprofessionals and to cover fixed and routine expenses. The hourly rates and corresponding hourly rates structure utilized by Saul Ewing in these Chapter 11 Cases are equivalent to the hourly rates and corresponding rate structure used by Saul Ewing for other corporate restructuring and bankruptcy matters, as well as similar complex corporate, labor, real estate and litigation matters, whether in court or otherwise, regardless of whether a fee application is required.",
"Attached hereto as Exhibit A is a summary of the blended hourly rates for timekeepers who billed during the Application Period and Saul Ewing’s firm-wide range of billing rates for its various positions. 9. Saul Ewing maintains computerized records of all time expended for the professional services rendered in connection with these Chapter 11 Cases on behalf of the Debtors. Attached hereto as Exhibit B is a summary of fees incurred and hours expended during the Application Period along with a detailed, chronological itemization covering all the services performed by Applicant. This detailed itemization complies with Del. Bankr. L.R. 2016-2(d) in that (i) each time entry contains a separate time allotment, a description of the type of activity and the subject matter of the activity, (ii) all time is billed in increments of one-tenth of an hour, and (iii) time entries are presented chronologically by Applicant. 37903817.2 12/31/2020 6 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 7 of 20 10. Attached hereto as Exhibit C is a detailed itemization, by project category, of all services performed by Applicant with respect to these matters during the Application Period. Non- working travel time (to the extent applicable) is billed at 50% of normal rates.",
"11. Attached hereto as Exhibit D is a description of the costs actually expended by the Applicant in the performance of services rendered as counsel to the Debtors during the Application Period. These costs for which reimbursement is requested total $24,949.36. The breakdown of costs includes the rate for copying charges ($.10/page) and the basis for each rate, facsimile charges ($.25/page – outgoing transmission only), telephone charges, postage, messenger service, outside photocopying, teleconferencing and legal research.",
"By this Application, the Applicant does not seek expenses for incoming facsimile transmissions. 12. Attached hereto as Exhibit E is a Declaration of Applicant with respect to the compensation requested. Summary of Legal Services by Project Category 13. The services rendered by Saul Ewing during the Application Period can be grouped in the categories set forth below. The following chart is a summary of the fees and hours billed for each project category during the Application Period. Project Category Total Hours Total Fees Asset Sale Disposition 6.60 $4,408.00 Business Operations 80.00 $51,343.50 Case Administration 29.30 $16,941.50 Claims Analysis, Objections, Proofs of Claim and Bar Date 126.10 $53,273.50 Committee Matters 45.00 $30,070.50 Creditor Inquiries 0.50 $260.00 Employee Benefits and Pensions 1.40 $784.00 Executory Contracts and Unexpired Leases 14.20 $9,704.50 Fee/Employment Applications (Saul Ewing) 16.30 $4,432.50 Fee/Employment Applications (Other Professionals) 5.00 $1,984.50 37903817.2 12/31/2020 7 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 8 of 20 Project Category Total Hours Total Fees Litigation: Contested Matters and Adversary Proceedings 794.50 $345,298.00 Plan and Disclosure Statement 6.80 $4,225.00 Preparation for and Attendance at Hearing 2.10 $1,539.00 Relief from Stay and Adequate Protection 5.80 $3,793.00 UST Reports, Meetings and Issues 1.70 $1,066.00 Utilities 0.20 $90.00 TOTAL 1135.50 $529,213.50 Minus Agreed Upon Discount ($52,921.35) GRAND TOTAL 1135.50 $476,292.15 14.",
"These categories are generally described below, with a more detailed identification of the actual services provided set forth in Exhibit C attached hereto. (a) Asset Sale Disposition. This category includes all matters relating to the disposition, and other post-petition uses of, property of the estate, including issues arising from the sale of substantially all of the Debtors’ assets. Time in this category includes communicating with STC OpCo, LLC (the “Buyer”) regarding a domain name transfer; reviewing various HPP-related documents regarding lease issues; and communicating with the Debtors regarding a domain name transfer, additional equipment to be sold and other sale-related issues. Saul Ewing spent 6.60 hours of attorney time on the foregoing services. Said services have a value of $4,408.00 (discounted to $3,967.20) for which Saul Ewing is seeking compensation. Asset Sale Disposition Professionals Position Hours Compensation M. Minuti Partner 0.20 $152.00 J. Hampton Partner 2.80 $1,862.00 A. Isenberg Partner 3.60 $2,394.00 Total 6.60 $4,408.00 Minus Agreed Upon Discount ($440.80) Grand Total 6.60 $3,967.20 (b) Business Operations.",
"This category includes all matters relating to the operation of the Debtors’ businesses. Time in this category includes communicating with various vendors regarding payment and service issues; reviewing materials regarding straddle payments, insurance policies and Pennsylvania Department of Health System (“DHS”) appeal documents; reviewing and revising corporate governance documents and a term sheet; communicating with Debtors and their non-debtor affiliates regarding 37903817.2 12/31/2020 8 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 9 of 20 corporate governance issues; preparing for and participating in a DHS administrative status conference; and communicating with the Debtors regarding, inter alia, vendor issues, case strategy, corporate governance, payroll tax returns, a DHS assessment appeal and certain regulatory and insurance issues. Saul Ewing spent 80.00 hours of attorney time on the foregoing services. Said services have a value of $51,343.50 (discounted to $46,209.15) for which Saul Ewing is seeking compensation. Business Operations Professionals Position Hours Compensation M. Minuti Partner 5.90 $4,484.00 J. Hampton Partner 54.10 $35,976.50 A. Isenberg Partner 0.20 $133.00 J. Englert Partner 0.80 $500.00 W. Warren Partner 7.40 $4,403.00 R. Frazier Partner 3.80 $2,261.00 M. Haar Partner 5.40 $2,943.00 M. DiSabatino Partner 0.10 $45.00 S. McGuire Associate 2.30 $598.00 Total 80.00 $51,343.50 Minus Agreed Upon Discount ($5,134.35) Grand Total 80.00 $46,209.15 (c) Case Administration. This category includes all matters related to work regarding the administration of the case.",
"Time in this category includes updating a case calendar; analyzing the status of open motions and open issues; drafting, revising and filing notices of agenda and amended agenda; participating in meetings with the Debtors regarding case issues; and communicating with Omni Agent Solutions (“Omni”) regarding service instructions for various documents and service issues. Saul Ewing spent 29.30 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $16,941.50 (discounted to $15,247.35) for which Saul Ewing is seeking compensation. 37903817.2 12/31/2020 9 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 10 of 20 Case Administration Professionals Position Hours Compensation M. Minuti Partner 0.50 $380.00 J. Hampton Partner 6.10 $4,056.50 A. Isenberg Partner 15.30 $10,174.50 M. DiSabatino Partner 1.30 $585.00 M. Martinez Associate 3.90 $1,228.50 R. Warren Paraprofessional 2.20 $517.00 Total 29.30 $16,941.50 Minus Agreed Upon Discount ($1,694.15) Grand Total 29.30 $15,247.35 (d) Claims Analysis, Objections, Proofs of Claim and Bar Date.",
"This category includes all time spent in connection with claim and bar date issues. Time in this category includes negotiating resolutions of administrative claim motions (the “Motion”); drafting, revising and filing stipulations and orders resolving the Motions; reviewing and analyzing proofs of claim and claims analyses; drafting and revising an omnibus claim objection; conducting research concerning certain priority claims; and communicating with the Debtors and Committee counsel regarding claim issues. Saul Ewing spent 126.10 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $53,273.50 (discounted to $47,946.15) for which Saul Ewing is seeking compensation. Claims Analysis, Objections, Proofs of Claim and Bar Date Professionals Position Hours Compensation M. Minuti Partner 2.50 $1,900.00 J. Hampton Partner 7.90 $5,253.50 A. Isenberg Partner 13.80 $9,177.00 M. DiSabatino Partner 53.60 $24,120.00 M. Martinez Associate 5.00 $1,575.00 S. McGuire Associate 42.90 $11,154.00 R. Warren Paraprofessional 0.40 $94.00 Total 126.10 $53,273.50 Minus Agreed Upon Discount ($5,327.35 Grand Total 126.10 $47,946.15 37903817.2 12/31/2020 10 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 11 of 20 (e) Committee Matters.",
"This category includes all time spent in connection with issues involving the Committee. Time in this category includes communicating with the Committee regarding a document request, search terms, claim issues, corporate governance and certain other case issues; reviewing and revising a consent/protective order with the Committee; preparing for and participating in calls with the Committee regarding discovery issues; and reviewing and assembling documents to produce to the Committee. Saul Ewing spent 45.00 hours of attorney time on the foregoing services. Said services have a value of $30,070.50 (discounted to $27,063.45) for which Saul Ewing is seeking compensation. Committee Matters Professionals Position Hours Compensation M. Minuti Partner 9.00 $6,840.00 J. Hampton Partner 32.60 $21,679.00 A. Isenberg Partner 0.10 $66.50 C. Contreras- Martinez Counsel 3.30 $1,485.00 Total 45.00 $30,070.50 Minus Agreed Upon Discount ($3,007.05) Grand Total 45.00 $27,063.45 (f) Creditor Inquiries.",
"This category includes all matters related to communicating with creditors regarding case status and distribution inquiries. Saul Ewing spent 0.50 of an hour of attorney time on the foregoing services. Said services have a value of $260.00 (discounted to $234.00) for which Saul Ewing is seeking compensation. Creditor Inquiries Professionals Position Hours Compensation M. Minuti Partner 0.20 $152.00 M. DiSabatino Partner 0.10 $45.00 M. Martinez Associate 0.20 $63.00 Total 0.50 $260.00 Minus Agreed Upon Discount ($26.00) Grand Total 0.50 $234.00 (g) Employee Benefits and Pensions. This category includes all time spent in connection with various employee issues. Time in this category includes reviewing and analyzing audit materials and invoices; and drafting and revising a response regarding non-qualified deferred compensation plan 37903817.2 12/31/2020 11 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 12 of 20 services and termination issues. Saul Ewing spent 1.40 hours of attorney time on the foregoing services.",
"Said services have a value of $784.00 (discounted to $705.60) for which Saul Ewing is seeking compensation. Employee Benefits and Pensions Professionals Position Hours Compensation Paul A. Kasicky Counsel 1.40 $784.00 Total 1.40 $784.00 Minus Agreed Upon Discount ($78.40) Grand Total 1.40 $705.60 (h) Executory Contracts and Unexpired Leases. This category includes all time spent in connection with contract and lease analysis, the assumption, assignment or rejection of executory contracts and unexpired leases, and cure claims. Time in this category includes reviewing an HSRE claim analysis; reviewing HSRE discovery and a proposed discovery order; communicating with counsel to HSRE regarding lease issues; and communicating with the Debtors regarding lease and HSRE issues. Saul Ewing spent 14.20 hours of attorney time on the foregoing services. Said services have a value of $9,704.50 (discounted to $8,734.05) for which Saul Ewing is seeking compensation. Executory Contracts and Unexpired Leases Professionals Position Hours Compensation M. Minuti Partner 2.50 $1,900.00 M. Burg Partner 1.20 $822.00 A. Isenberg Partner 10.50 $6,982.50 Total 14.20 $9,704.50 Minus Agreed Upon Discount ($970.45) Grand Total 14.20 $8,734.05 (i) Fee/Employment Applications (Saul Ewing). This category includes all matters related to the review and preparation of a retention application and fee applications for Saul Ewing.",
"Time in this category includes drafting, revising and filing Saul Ewing’s fourteenth monthly and third interim fee applications and a certification of no objection on Saul Ewing’s thirteenth monthly fee application. Saul Ewing spent 16.30 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $4,432.50 (discounted to $3,989.25) for which Saul Ewing is seeking compensation. 37903817.2 12/31/2020 12 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 13 of 20 Fee/Employment Applications (Saul Ewing) Professionals Position Hours Compensation J. Hampton Partner 0.40 $266.00 M. DiSabatino Partner 2.00 $900.00 R. Warren Paraprofessional 13.90 $3,266.50 Total 16.30 $4,432.50 Minus Agreed Upon Discount ($443.25) Grand Total 16.30 $3,989.25 (j) Fee/Employment Applications (Other Professionals). This category includes all matters related to the review and analysis and filing of retention and fee applications for other professionals in these Chapter 11 Cases. Time in this category includes revising and filing EisnerAmper LLP’s (“EisnerAmper”) monthly staffing report and a certification of no objection regarding same; negotiating a resolution to an objection to EisnerAmper’s monthly staffing report and drafting and filing a withdrawal of same; and revising and filing a supplemental Centurion retention application. Saul Ewing spent 5.00 hours of attorney and paraprofessional time on the foregoing services.",
"Said services have a value of $1,984.50 (discounted to $1,786.05) for which Saul Ewing is seeking compensation. Fee/Employment Applications (Other Professionals) Professionals Position Hours Compensation M. Minuti Partner 1.00 $760.00 A. Isenberg Partner 0.20 $133.00 M. DiSabatino Partner 0.70 $315.00 M. Martinez Associate 0.60 $189.00 R. Warren Paraprofessional 2.50 $587.50 Total 5.00 $1984.50 Minus Agreed Upon Discount ($198.45) Grand Total 5.00 $1,786.05 (k) Litigation: Contested Matters and Adversary Proceedings. This category includes all matters related to litigation. Time in this category includes reviewing documentation regarding estate causes of action and updating memoranda regarding same; conducting research concerning standing to assert certain estate claims and privilege issues and drafting a memoranda regarding same; drafting and revising a 2004 motion; reviewing and revising a discovery stipulation; communicating with the Debtors and non-debtor affiliates regarding discovery issues; and communicating with the Debtors 37903817.2 12/31/2020 13 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 14 of 20 and the Committee regarding the discovery issues, possible estate claims and pending litigation.",
"Saul Ewing spent 794.50 hours of attorney and support staff time on the foregoing services. Said services have a value of $345,298.00 (discounted to $310,768.20) for which Saul Ewing is seeking compensation. Litigation: Contested Matters and Adversary Proceedings Professionals Position Hours Compensation J. O’Dea Partner 46.90 $38,692.50 M. Minuti Partner 52.30 $39,748.00 J. Demmy Partner 9.50 $6,792.50 E. Geekie Partner 2.50 $1,737.50 J. Hampton Partner 33.10 $22,011.50 A. Isenberg Partner 59.00 $39,235.00 A. Kline Partner 5.30 $3,365.50 M. Novick Partner 7.00 $4,095.00 A. Bilus Partner 16.50 $8,167.50 M. DiSabatino Partner 2.90 $1,305.00 P. Hromisin Counsel 29.40 $13,965.00 C. Contreras- Martinez Counsel 19.30 $8,685.00 S. Simon Associate 20.90 $7,942.00 A. Burdette Associate 7.80 $2,964.00 J. Rosenfeld Associate 97.30 $35,028.00 D. Sampson Associate 55.60 $18,904.00 J. Sweeny Associate 5.60 $1,820.00 J. Walton Associate 12.80 $4,032.00 C. McGuinness Associate 29.70 $9,058.50 J. Marty Associate 20.60 $6,283.00 C. Burns Associate 20.20 $6,161.00 C. Toll Associate 87.80 $25,023.00 G. Waterworth Associate 19.00 $5,415.00 S. McGuire Associate 26.80 $6,968.00 R. Starner Associate 90.80 $23,608.00 Z. Kizitaff Associate 12.40 $3,224.00 37903817.2 12/31/2020 14 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 15 of 20 Litigation A. Rosenthal Support 3.50 $1,067.50 Total 794.50 $345,298.00 Minus Agreed Upon Discount ($34,529.80) Grand Total 794.50 $310,768.20 (l) Plan and Disclosure Statement.",
"This category includes time related to plan and disclosure issues. Time in this category includes revising and filing a motion to further extend the exclusivity period; communicating with the Committee and the UST regarding the exclusivity motion; and communicating with the Debtors and the Committee regarding plan issues. Saul Ewing spent 6.8 hours of attorney and paraprofessional time on the foregoing services.",
"Said services have a value of $4,225.00 (discounted to $3,802.50) for which Saul Ewing is seeking compensation. Plan and Disclosure Statement Professionals Position Hours Compensation M. Minuti Partner 1.40 $1,064.00 J. Hampton Partner 1.90 $1,263.50 A. Isenberg Partner 2.10 $1,396.50 M. DiSabatino Partner 0.80 $360.00 R. Warren Paraprofessional 0.60 $141.00 Total 6.80 $4,225.00 Minus Agreed Upon Discount ($422.50) Grand Total 6.80 $3,802.50 (m) Preparation for and Attendance at Hearing. This category includes time related to the preparation for and attendance at various court hearings.",
"Saul Ewing spent 2.10 of an hour of attorney time on the foregoing services. Said services have a value of $1,539.00 (discounted to $1,385.10) for which Saul Ewing is seeking compensation. Preparation for and Attendance at Hearing Professionals Position Hours Compensation M. Minuti Partner 1.50 $1,140.00 A. Isenberg Partner 0.60 $399.00 Total 2.10 $1,539.00 Minus Agreed Upon Discount ($153.90) Grand Total 2.10 $1,385.10 (n) Relief From Stay and Adequate Protection. This category includes all matters relating to relief from the automatic stay. Time in this category 37903817.2 12/31/2020 15 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 16 of 20 includes communicating with attorneys for personal injury claimants regarding lift stay requests; drafting, revising and filing stay relief stipulations; communicating with CMS regarding a resolution of CMS’s motion for stay relief (the “Setoff Motion”); drafting, revising and filing a certification of counsel submitting an order resolving the Setoff Motion; reviewing a motion for relief and a motion to expedite the same; communicating with the Debtors regarding the Setoff Motion and personal injury claims. Saul Ewing spent 5.80 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $3,793.00 (discounted to $3,413.70) for which Saul Ewing is seeking compensation.",
"Relief From Stay and Adequate Protection Professionals Position Hours Compensation M. Minuti Partner 3.40 $2,584.00 A. Isenberg Partner 1.10 $731.50 M. DiSabatino Partner 0.80 $360.00 R. Warren Paraprofessional 0.50 $117.50 Total 5.80 $3,793.00 Minus Agreed Upon Discount ($379.30) Grand Total 5.80 $3,413.70 (o) UST Reports, Meetings and Issues. This category includes time related to the preparation of operating reports and other information required by the UST or the Court. Time in this category includes reviewing, revising and filing monthly operating reports; and communicating with the Debtors regarding monthly operating reports. Saul Ewing spent 1.70 hours of attorney and paraprofessional time on the foregoing services. Said services have a value of $1,066.00 (discounted to $959.40 for which Saul Ewing is seeking compensation. UST Reports, Meetings and Issues Professionals Position Hours Compensation J. Hampton Partner 0.60 $399.00 A. Isenberg Partner 0.90 $598.50 M. DiSabatino Partner 0.10 $45.00 R. Warren Paraprofessional 0.10 $23.50 Total 1.70 $1066.00 Minus Agreed Upon Discount ($106.60) Grand Total 1.70 $959.40 37903817.2 12/31/2020 16 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 17 of 20 (p) Utilities. This category includes time related to utilities.",
"Time in this category includes communicating with utility provider regarding amounts outstanding. Saul Ewing spent 0.20 of an hour of attorney time on the foregoing services. Said services have a value of $90.00 (discounted to $81.00) for which Saul Ewing is seeking compensation. Utilities Professionals Position Hours Compensation M. DiSabatino Partner 0.20 $90.00 Total 0.20 $90.00 Minus Agreed Upon Discount ($9.00) Grand Total 0.20 $81.00 (q) Expenses. Exhibit D lists expenses, such as copying costs at $.10¢ per page, postage, filing fees, transcripts, charges for telephonic Court appearances, charges for legal research and travel expenses. Saul Ewing seeks $24,949.36 in expenses. EXPENSES Expense Category Service Provider (if applicable) Total Expenses E-discovery Processing Saul Ewing Arnstein & Lehr /Usage LLP $10,364.04 United States Bankruptcy Court Filing Fees (sale motion) $181.00 Legal Research Westlaw and Lexis $14,339.12 Overnight Delivery Federal Express $65.20 Total $24,949.36 Compensation Should Be Allowed 15.",
"The foregoing services in the total amount of $476,292.15 provided by Saul Ewing on behalf of the Debtors during the Application Period were reasonable, necessary and appropriate to the administration of the Chapter 11 Cases. 16. The attorneys who worked on these cases during the Application Period have various levels and areas of expertise. Accordingly, it was necessary for these attorneys to consult 37903817.2 12/31/2020 17 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 18 of 20 with each other on different aspects and issues relating to the Chapter 11 Cases. The attorneys involved in this case and their areas of expertise is attached hereto as Exhibit F. 17. Section 331 of the Bankruptcy Code provides for compensation of professionals and incorporates the standards of section 330 of the Bankruptcy Code to govern the Court’s award of such compensation. Section 330 of the Bankruptcy Code provides that a court may award a professional employed under section 327 of the Bankruptcy Code “reasonable compensation for actual necessary services rendered .",
". . and reimbursement for actual, necessary expenses.” 11 U.S.C. § 330(a)(1). Section 330 of the Bankruptcy Code also sets forth the criteria for the award of such compensation and reimbursement: In determining the amount of reasonable compensation to be awarded, the court should consider the nature, extend, and the value of such services, taking into account all relevant factors, including (a) the time spent on such services; (b) the rates charged for such services; (c) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (d) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (e) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C.",
"§ 330(a)(3). 18. The services performed by Saul Ewing during the Application Period for which compensation is sought were necessary for, and beneficial to, the Debtors and the Debtors’ estates. Saul Ewing submits that the compensation sought is reasonable. 37903817.2 12/31/2020 18 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 19 of 20 19. Saul Ewing submits that the services provided to the Debtors by Saul Ewing during these Chapter 11 Cases were necessary and appropriate given the complexity of these Chapter 11 Cases, the issues involved, the nature and extent of services provided, and the cost of comparable services outside of bankruptcy, all of which are factors set forth in section 330 of the Bankruptcy Code. Accordingly, Saul Ewing respectfully submits that approval of the compensation sought for the Application Period is appropriate and should be approved. 20. Saul Ewing has reviewed the requirements of Del. Bankr. L.R. 2016-2 and believes that this Application complies with the such requirements.",
"Notice 21. Notice of this Application is being provided to the Notice Parties identified in the Interim Compensation Order and to all other parties who have requested notice pursuant to Bankruptcy Rule 2002. 22. No prior request for the relief sought by this Application has been made to this or any other court. [remainder of page left intentionally blank] 37903817.2 12/31/2020 19 Case 19-11466-MFW Doc 2003 Filed 12/31/20 Page 20 of 20 WHEREFORE, Saul Ewing respectfully requests that the Court enter an Order (i) allowing, authorizing and directing payment of interim compensation in the amount of $476,292.15 (80% of which is $381,033.72) for legal services rendered on behalf of the Debtors during the Application Period, together with reimbursement of disbursements in the amount of $24,949.36; and, (ii) granting such other and further relief as the Court deems just and proper. Dated: December 31, 2020 SAUL EWING ARNSTEIN & LEHR LLP By: /s/ Monique B. DiSabatino Mark Minuti (DE Bar No. 2659) Monique B. DiSabatino (DE Bar No. 6027) 1201 N. Market Street, Suite 2300 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6800 Fax: (302) 421-5873 mark.minuti@saul.com monique.disabatino@saul.com -and- Jeffrey C. Hampton Adam H. Isenberg Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102 Telephone: (215) 972-7777 Fax: (215) 972-7725 jeffrey.hampton@saul.com adam.isenberg@saul.com Counsel for Debtors and Debtors in Possession 37903817.2 12/31/2020 20"
]
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DETAILED ACTION
Response to Arguments Applicant's arguments filed 6/17/2022 have been fully considered but they are not persuasive. The applicant argues that the claims as amended overcome the prior art of record. The examiner disagrees and respectfully submits that the prior art of record fully discloses the claims as amended, as shown below in the maintained rejection of the claims.
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 1-7 are 9-20 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. At the time the invention was filed, it does not appear the applicant was in possession of “a physical dimension variation based water retention/bloat sensor using a skin surface band” and “using, by a physical dimension variation based water retention/bloat sensor, a skin surface band integrated into a belly band”. Paragraph 0034 of the instant application sets forth that the water retention/bloat sensor could be implemented by a skin surface band, but does not state that the sensor uses a skin surface band. Looking to paragraph 0034, it is quite hard to determine if the sensor uses a skin surface band or if the sensor is the skin surface band. As best as the examiner can determine, the applicant was not in possession of “retention/bloat sensor using a skin surface band” at the time of filing because paragraph 0034 is ambiguous regarding the relationship between the sensor and the band. At the time the invention was filed it does not appear the application was in possession of “where the skin surface band is integrated into the belly band”. Paragraph 0034 states that additional sensors can be integrated into the belly band, but the specification does not state that the skin surface band itself could be integrated into the belly band. Therefore, at the time the invention was filed the application did not have possession of a skin surface band integrated into the belly band.
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 1-7 are 9-20 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 limitation(s) “a physical dimension variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for intake and outflow” and“using, by a physical dimension variation based water retention/bloat sensor, a skin surface band integrated into a belly band and involving an elastic measurement, selectively coupled with the diaper sensor output and supplemented by a log of caregiver actions for data entry for intake and outflow” render(s) the claim(s) indefinite, as the claim language is very confusing. As claimed, it is unclear what the relation is between the retention/bloat sensor and the skin surface band into the belly band. What is the connection to these two elements? What does one do with respect to the other? As set forth in it appears there is a water retention/bloat sensor that somehow uses a skin surface band, but it not clear how it is used. Or perhaps these limitations are the same part? For purposes of examination the indefinite limitation has been deemed to claim that there is a sensor that in some manner detects an elastic measurement. The limitation “and involving an elastic measurement” renders the claim indefinite. What is involved with an elastic measurement? Is the sensor, the surface band, the belly band, or combinations thereof involved in this elastic measurement? For purposes of examination the indefinite limitation has been deemed to claim that at least one of the sensors or bands is involved in an elastic measurement. The limitation “selectively coupled with a diaper sensor output” renders the claim indefinite. What is coupled with a diaper sensor output? The sensor, the bands, the measurement? It is not understood what is being coupled. For purposes of examination the indefinite limitation has been deemed to claim that the elastic measurement is coupled with some sort of diaper sensor measurement. The limitation “supplemented by a log of caregiver actions” renders the claim indefinite. What is supplemented by a log of caregiver actions? It is clear that a supplementation must occur but it is unclear how this is done. For purposes of examination the indefinite limitation has been deemed to claim that in addition to elastic measurements and diaper measurements, a log of caregiver actions is included with the measurements. Claim Rejections - 35 USC § 103 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 1-4, 10, 11 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20160324487 A1 to Guo et al. (hereinafter, Guo) in view of US 20160125759 A1 to Dougherty et al. (hereinafter, Dougherty) and NPL Differential Rooting Response by Neonates to Philippe Rochat et al. (hereinafter, Rochat). Regarding claim 1, Guo discloses an infant gastrointestinal monitor (see all figures and entire document), comprising inter alia: a belly band for placing around at least a midsection area of a subject infant (shirt, jacket or t-shirt which includes patterns 512 and 514, paragraph 0110) (array 510 of sound sensors attached to a single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, paragraph 0110) (see Fig. 5) (common belts and waistbands are also disclosed in the Abstract, paragraphs 0001, 0110, 0156, 0160, 0161); a plurality of wireless sound sensors (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4) (waist pattern 514, which is part of array 510, which may include more or fewer sound sensors including 3, 6, 7, 10 or more, 15, 20 or 30), each integrated with the belly band in at least a vertical array configuration (regarding the shirt, jacket or t-shirt arrangement, patterns 512 and 514 are in a vertical array configuration) (regarding the single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, array 510 is in a vertical array configuration) (see Fig. 5), and comprising a respective wireless transceiver to provide a respective wireless signal therefrom (via antennae 440); and a controller, integrated with the belly band and operatively coupled to at least one of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100), cross-referencing wireless signals from the plurality of wireless sound sensors to identify a location of a gastrointestinal noise in the subject infant (the signal strength is related to the distance between two sensors, and the relative locations can be calculated based on the calculation of the signal strength measured between any two of these sensors, paragraph 0098) (alternatively, the sound strength may be used to identify the relative locations of the sensor, paragraph 0098) (the organ may be the digestive tract, liver kidneys, bladder, intestines, stomach or pancreas, paragraph 0014) and analyzing the location and one or more other parameters of the gastrointestinal noise to identify a probably cause of the noise a recommended action for a caregiver to alleviate a discomfort caused by the noise (paragraph 0115); where the at least one of the plurality of wireless sound sensors is configured as a master that wirelessly collects the wireless signals from the other ones of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) (also see paragraphs 0097-0098) to provide an external-wire-free apparatus such that there exists an absence of wires emanating from the actual subject infant when using the infant gastrointestinal monitor (the sensors of the array or mesh can be wireless, paragraph 0097) (if wireless, there is no physical election connection (e.g., wires) between the sensors required, paragraph 0097). Guo discloses the claimed invention as set forth and cited above except for expressly disclosing a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for input and outflow. However, Dougherty teaches a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into a belly band ([0043] Elimination detection component 504 may include a sensor or sensors (not shown) that enable diaper sensing unit 500 to detect the presence of urine or fecal matter in the diaper (an "elimination event")) ([0045] elimination detection component 504 may include sensors for detecting change in electrical capacitance … a capacitive sensor may be placed outside the diaper or within the diaper) and involving an elastic measurement ([0089] strain gauges) selectively coupled with a diaper sensor output ([0086] In addition to direct sensing of urine or feces, described above with respect to elimination detection component 504, various embodiments may incorporate indirect elimination detection techniques, i.e. detecting signals that indicate, precede, follow, or otherwise characterize, correlate with, or predict the likelihood of elimination events) and supplemented by a log of caregiver actions for data entry for input and outflow (see [0154]-[0156]). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo to include a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for input and outflow of Dougherty, as Dougherty discloses at [0003] that such modification would have allowed detection of eliminations and would have created associations between an elimination and an external cue and further teaches in the Background that the modification would have further removed the burden of nearly constant presence of caregivers, which historically has been difficult to employ in modern times. Guo discloses the claimed invention as set forth and cited above except for expressly disclosing a video capture device detecting rooting behavior in the subject infant from the monitored caregiver actions. However, Rochat teaches at pg. 108 under Procedure and Design that a video camera is used to recorded a close-up view of an infant’s face, where one of the responses that is recorded is rooting response by providing tactile stimulation by a caregiver (experimenter). Rochat at pg. 108 and 109 under Scoring teaches that various the subject infant may be recorded including head motion, turning, mouth movements, tongue protrusions, eye activity (open or closed) and hand posture and location. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo with the video capture device detecting rooting behavior from caregiver actions of Rochart as Rochat teaches that rooting can be used as a reliable dependent measure to assess the discrimination between self and external stimulation at the origin of development (pg. 107, paragraph above Method). Regarding claim 2, Guo as modified discloses wherein the one or more other parameters of the gastrointestinal noise comprise a noise type and a frequency of the gastrointestinal noise (paragraph 0104, 0115). Regarding claim 3, Guo as modified discloses wherein the plurality of wireless sound sensors comprises at least two audible sound sensors (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4). Regarding claim 4, Guo as modified discloses a transceiver for transmitting infant related data to a remote device (via antennae 440). Regarding claim 10, Guo as modified discloses a display device for displaying the probable cause of discomfort and the recommended action for the caregiver to alleviate the discomfort (paragraph 0013). Regarding claim 11, Guo as modified discloses wherein the controller is configured to use a provided caregiver feedback in order to identify the probable cause of discomfort and a recommended action for the caregiver to alleviate the discomfort (it is noted that a display or an audible alert is caregiver feedback that would allow identification of the probable cause of discomfort and a recommended action for the caregiver to alleviate discomfort, paragraphs 0013, 0115). Regarding claim 14, Guo as modified discloses a speaker for providing an audible alert to a caregiver responsive to a detection of a particular condition by the plurality of wireless sound sensors (paragraph 0115).
Claim 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield, and further in view of US 20090048540 A1 to Otto et al. (hereinafter, Otto). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing a skin surface temperature sensor, operatively coupled to the controller, for sensing a skin surface temperature of the subject infant. However, Otto teaches that a waist worn health monitoring device may include a temperature sensor and would have been advantageous to one of ordinary skill in the art because ambulatory health monitoring has advantages such is frequent monitoring of health metrics which provides great benefits to the individual wearing the device (paragraphs 0027, 0028, 0044, 0049).
Claims 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20080114218 A1 to Suyama et al. (hereinafter, Suyama). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing a moisture/water monitor, operatively coupled to the controller, for detecting water retention and bloat in the subject infant. However, Suyama teaches at paragraphs 0011, 0012 and 0032 that skin moisture sensors may be part of a system and would have been advantageous to one of ordinary skill in the art because it would have improved the condition of a subject.
Claim 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20170030605 A1 to Heller et al. (hereinafter, Heller). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing an infrared video capture device, operatively coupled to the controller, for measuring a body temperature and determining a body position of the subject infant However, Heller teaches at paragraph 0066 an infrared camera for measuring body temperature and teaches that that a skilled artisan would have found it useful to see if the infant needs immediate attention.
Claims 12, 13, 16 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20160342753 A1 to Feazell. Regarding claim 12, Guo as modified discloses where the subject is an infant, as set forth and cited above. Guo as modified discloses the claimed invention except for expressly disclosing wherein the controller is configured to use predictive analysis along with the feedback in order to provide a predictive schedule for the caregiver relative to care to be given to the subject infant and other activities to be performed by the caregiver that are unrelated to the subject infant. However, Feazell teaches a remote monitoring devices (paragraph 0005) that includes sensors that provide biometric data (paragraph 0029), the sensors may be worn (paragraph 0009). Feazell teaches a controller that is configured to use predictive analysis (prediction, aggregation and correlation, paragraph 0002; predicted outcome at a particular scheduled time paragraph 0010; suggested procedure may be scheduled and completed, paragraph 0041) along with feedback (via displays paragraphs 0065, 0068 and other outputs, paragraphs 0064, 0065, 0079) to provide a predictive schedule for a caregiver relative to care to be given to a subject (prediction, aggregation and correlation, paragraph 0002; predicted outcome at a particular scheduled time paragraph 0010; suggested procedure may be scheduled and completed, paragraph 0041) and other activities to be performed by the caregiver that are unrelated to the subject infant (situational factors such as particular brand of tools, staff, room or procedure related to other patients, paragraph 0050). Regarding claim 13, Guo as modified discloses where the subject is an infant, as set forth and cited above. Guo does not expressly disclose wherein the controller is configured to learn from responses by the subject (paragraph 0035) and other subjects, the caregiver, medical personnel, and manually entered data relative to the recommended action to improve future recommended actions. However, Feazell also teaches wherein the controller is configured to learn (unsupervised and/or machine learning, paragraph 0007, 0014, 0025, 0056, 0060-0065) from responses by the subject (paragraph 0035) and other subjects (paragraph 0050), the caregiver (particular caregiver, paragraph 0010), medical personnel (staff, paragraph 0011, 0012, 0024, 0033, 0037, 0050), and manually entered data relative to the recommended action to improve future recommended actions (input answers from patient queries, paragraph 0037). Regarding claim 16, Guo as modified discloses where the subject is an infant and where the biometric information is noise, as set forth and cited above. Guo does not expressly disclose wherein the memory stores at least a portion of a care history of the subject infant, and wherein the controller consults the portion of the care history in order to identify the underlying condition causing the noise and the recommended action for the caregiver to alleviate the underlying condition causing the noise. However, Feazell also teaches wherein the memory stores at least a portion of a care history of the subject (paragraph 0067, 0069-0072, 0079, 0080), and wherein the controller consults the portion of the care history in order to identify the underlying condition causing the biometric data that requires attention (paragraphs 0006, 0016, 0035, 0039) and the recommended action for the caregiver to alleviate the underlying condition causing the biometric data that requires attention (treatments that follow diagnosis, paragraphs 0016, 0031, 0039, 0043, 0062, 0096, 0101, 0104). Regarding claim 17, Guo as modified discloses where the subject is an infant, where the biometric information is noise collected by a plurality of wireless sound sensors, as set forth and cited above. Guo does not expressly disclose wherein the recommendation action is tailored to the subject infant based on at least the portion of the medical history of the subject infant and data from the plurality of wireless sound sensors. However, Feazell teaches collecting biometric data from a plurality of sensors (paragraphs 0009, 0029). Feazell teaches where the recommendation action is tailored to the subject based on at least the portion of the medical history of the subject and data from the plurality of sensors that collect biometric data (paragraphs 0016, 0031, 0039, 0043, 0062, 0096, 0101, 0104). Regarding claims 12, 13, 16 and 17, one having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the controller to have the predictive analysis to provide a predictive schedule for a caregiver based on various biometric data, other inputs and providing a recommended course of action based on a diagnosis, as Feazell teaches that such controller with predictive analysis capabilities would have provided an effective way to manage a patient’s health (paragraph 0002) and would have also provided preventative personalized and provider interventions (paragraph 0014). A skilled artisan would have recognized that such effective management of a subject’s health would have increased subject safety and improved outcome.
Claim 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20160095527 A1 to Thng et al. (hereinafter, Thng). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing wherein the controller is configured to determine whether further action is needed and to recommend the further action, based on an item selected from the group consisting of a response by the subject infant to the recommended action and feedback from the caregiver as to an efficacy of the recommended action. However, Thng teaches at paragraph 0112 a respond by the subject is indicative of efficacy and a skilled artisan would have recognized that this can be used to tailor drug treatment to suit an individual’s needs.
Claim 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20170202509 A1 to Sanderson et al. (hereinafter, Sanderson). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing wherein the controller analyzes the location and the one or more other parameters of the gastrointestinal noise using a spectral analysis technique. However, Sanderson teaches at paragraph 0015 that spectral analysis on raw data and a skilled artisan would have recognized that this would have extracted much more frequency data.
Claims 19 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20160324487 A1 to Guo et al. (hereinafter, Guo) in view of US 20150330958 A1 to Carney et al. (hereinafter, Carney) and NPL Differential Rooting Response by Neonates to Philippe Rochat et al. (hereinafter, Rochat). Guo discloses a method for infant gastrointestinal monitoring (see all figures and entire document), comprising inter alia: identifying, by a controller (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) integrated with a belly band (shirt, jacket or t-shirt which includes patterns 512 and 514, paragraph 0110) (array 510 of sound sensors attached to a single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, paragraph 0110) (see Fig. 5) capable of being placed around at least a midsection area of a subject infant (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4) (waist pattern 514, which is part of array 510, which may include more or fewer sound sensors including 3, 6, 7, 10 or more, 15, 20 or 30) in at least a vertical array configuration (regarding the shirt, jacket or t-shirt arrangement, patterns 512 and 514 are in a vertical array configuration) (regarding the single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, array 510 is in a vertical array configuration) (see Fig. 5) and operatively coupled to at least one of a plurality of wireless sound sensors integrated with the belly band, a location of a gastrointestinal noise in the subject infant based on cross-referencing wireless signals from the plurality of wireless sound sensors (the signal strength is related to the distance between two sensors, and the relative locations can be calculated based on the calculation of the signal strength measured between any two of these sensors, paragraph 0098) (alternatively, the sound strength may be used to identify the relative locations of the sensor, paragraph 0098) (the organ may be the digestive tract, liver kidneys, bladder, intestines, stomach or pancreas, paragraph 0014); and analyzing, by the controller, the location and one or more other parameters of the gastrointestinal noise to identify a probable cause of the noise and a recommended action for a caregiver to alleviate a discomfort caused by the noise (paragraph 0115), wherein each of the wireless sound sensors comprises a respective wireless transceiver, and the at least one of the plurality of wireless sound sensors has the respective wireless transceiver configured as a master that wirelessly that collects the wireless signals from other ones of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) (also see paragraphs 0097-0098) to provide an external-wire-free apparatus such that there exists an absence of wires emanating from the actual subject infant when using the infant gastrointestinal monitoring method (the sensors of the array or mesh can be wireless, paragraph 0097) (if wireless, there is no physical election connection (e.g., wires) between the sensors required, paragraph 0097); wherein the one or more other parameters of the gastrointestinal noise comprise a noise type and a frequency of the gastrointestinal noise (paragraph 0104, 0115). Guo discloses the claimed invention as set forth and cited above except for expressly disclosing using, by a water retention/bloat sensor, an intake-outflow type comparison coupled with a diaper sensor output and caregiver actions for data entry for intake and outflow. However, Carney teaches a method of detecting urine and/or feces in a diaper of an individual (Abstract). Carney teaches a water retention/bloat sensor (The sensor unit 1 includes a first gas sensor 3 for detecting a gas component of feces and a second gas sensor 4 for detecting a gas component indicative of urine, paragraph 0040) using an intake-outflow type comparison (The registered characteristics are compared to predetermined characteristics indicative or urine or feces, respectively, paragraph 0043), selectively coupled with a diaper sensor output (The connection between the sensor unit 1 and the receiver unit 4 can be wireless, paragraph 0041; as claimed, the diaper sensor output is the manner of connection between the diaper and the receiver, as a diaper sensor output reads on how diaper sensor data is transmitted) and caregiver actions for data entry for intake and outflow (the caregiver can easily receive information regarding incidents and decide whether diapers need to be changed or not, paragraph 0026). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo to include the sensors, comparison and caregiver actions of Carney as Carney sets forth that the sensors, comparison and caregiver actions would have improved personal hygiene and the detection methods of are great importance (Carney paragraph 0004). Guo discloses the claimed invention as set forth and cited above except for expressly disclosing detecting, using a video capture device, rooting behavior in the subject infant from the monitored caregiver actions and physical dimensions in the subject infant. However, Rochat teaches at pg. 108 under Procedure and Design that a video camera is used to recorded a close-up view of an infant’s face, where one of the responses that is recorded is rooting response by providing tactile stimulation by a caregiver (experimenter). Rochat at pg. 108 and 109 under Scoring teaches that various physical dimension various in the subject infant may be recorded including head motion, turning, mouth movements, tongue protrusions, eye activity (open or closed) and hand posture and location. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo with the video capture device detecting rooting behavior from caregiver actions and physical dimension variations of Rochart as Rochat teaches that rooting can be used as a reliable dependent measure to assess the discrimination between self and external stimulation at the origin of development (pg. 107, paragraph above Method).
Conclusion THIS ACTION IS MADE FINAL. 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 mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN PATRICK DOUGHERTY whose telephone number is (571)270-5044. The examiner can normally be reached 8am-5pm (Pacific 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, Jacqueline Cheng can be reached on (571)272-5596. 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.
/SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791 | 2022-09-02T11:07:03 | [
"DETAILED ACTION Response to Arguments Applicant's arguments filed 6/17/2022 have been fully considered but they are not persuasive. The applicant argues that the claims as amended overcome the prior art of record. The examiner disagrees and respectfully submits that the prior art of record fully discloses the claims as amended, as shown below in the maintained rejection of the claims. 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 1-7 are 9-20 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. At the time the invention was filed, it does not appear the applicant was in possession of “a physical dimension variation based water retention/bloat sensor using a skin surface band” and “using, by a physical dimension variation based water retention/bloat sensor, a skin surface band integrated into a belly band”.",
"Paragraph 0034 of the instant application sets forth that the water retention/bloat sensor could be implemented by a skin surface band, but does not state that the sensor uses a skin surface band. Looking to paragraph 0034, it is quite hard to determine if the sensor uses a skin surface band or if the sensor is the skin surface band. As best as the examiner can determine, the applicant was not in possession of “retention/bloat sensor using a skin surface band” at the time of filing because paragraph 0034 is ambiguous regarding the relationship between the sensor and the band. At the time the invention was filed it does not appear the application was in possession of “where the skin surface band is integrated into the belly band”. Paragraph 0034 states that additional sensors can be integrated into the belly band, but the specification does not state that the skin surface band itself could be integrated into the belly band. Therefore, at the time the invention was filed the application did not have possession of a skin surface band integrated into the belly band. 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 1-7 are 9-20 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 limitation(s) “a physical dimension variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for intake and outflow” and“using, by a physical dimension variation based water retention/bloat sensor, a skin surface band integrated into a belly band and involving an elastic measurement, selectively coupled with the diaper sensor output and supplemented by a log of caregiver actions for data entry for intake and outflow” render(s) the claim(s) indefinite, as the claim language is very confusing. As claimed, it is unclear what the relation is between the retention/bloat sensor and the skin surface band into the belly band.",
"What is the connection to these two elements? What does one do with respect to the other? As set forth in it appears there is a water retention/bloat sensor that somehow uses a skin surface band, but it not clear how it is used. Or perhaps these limitations are the same part? For purposes of examination the indefinite limitation has been deemed to claim that there is a sensor that in some manner detects an elastic measurement. The limitation “and involving an elastic measurement” renders the claim indefinite. What is involved with an elastic measurement? Is the sensor, the surface band, the belly band, or combinations thereof involved in this elastic measurement? For purposes of examination the indefinite limitation has been deemed to claim that at least one of the sensors or bands is involved in an elastic measurement. The limitation “selectively coupled with a diaper sensor output” renders the claim indefinite. What is coupled with a diaper sensor output? The sensor, the bands, the measurement?",
"It is not understood what is being coupled. For purposes of examination the indefinite limitation has been deemed to claim that the elastic measurement is coupled with some sort of diaper sensor measurement. The limitation “supplemented by a log of caregiver actions” renders the claim indefinite. What is supplemented by a log of caregiver actions? It is clear that a supplementation must occur but it is unclear how this is done. For purposes of examination the indefinite limitation has been deemed to claim that in addition to elastic measurements and diaper measurements, a log of caregiver actions is included with the measurements. Claim Rejections - 35 USC § 103 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 1-4, 10, 11 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20160324487 A1 to Guo et al. (hereinafter, Guo) in view of US 20160125759 A1 to Dougherty et al. (hereinafter, Dougherty) and NPL Differential Rooting Response by Neonates to Philippe Rochat et al. (hereinafter, Rochat). Regarding claim 1, Guo discloses an infant gastrointestinal monitor (see all figures and entire document), comprising inter alia: a belly band for placing around at least a midsection area of a subject infant (shirt, jacket or t-shirt which includes patterns 512 and 514, paragraph 0110) (array 510 of sound sensors attached to a single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, paragraph 0110) (see Fig. 5) (common belts and waistbands are also disclosed in the Abstract, paragraphs 0001, 0110, 0156, 0160, 0161); a plurality of wireless sound sensors (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4) (waist pattern 514, which is part of array 510, which may include more or fewer sound sensors including 3, 6, 7, 10 or more, 15, 20 or 30), each integrated with the belly band in at least a vertical array configuration (regarding the shirt, jacket or t-shirt arrangement, patterns 512 and 514 are in a vertical array configuration) (regarding the single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, array 510 is in a vertical array configuration) (see Fig.",
"5), and comprising a respective wireless transceiver to provide a respective wireless signal therefrom (via antennae 440); and a controller, integrated with the belly band and operatively coupled to at least one of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100), cross-referencing wireless signals from the plurality of wireless sound sensors to identify a location of a gastrointestinal noise in the subject infant (the signal strength is related to the distance between two sensors, and the relative locations can be calculated based on the calculation of the signal strength measured between any two of these sensors, paragraph 0098) (alternatively, the sound strength may be used to identify the relative locations of the sensor, paragraph 0098) (the organ may be the digestive tract, liver kidneys, bladder, intestines, stomach or pancreas, paragraph 0014) and analyzing the location and one or more other parameters of the gastrointestinal noise to identify a probably cause of the noise a recommended action for a caregiver to alleviate a discomfort caused by the noise (paragraph 0115); where the at least one of the plurality of wireless sound sensors is configured as a master that wirelessly collects the wireless signals from the other ones of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) (also see paragraphs 0097-0098) to provide an external-wire-free apparatus such that there exists an absence of wires emanating from the actual subject infant when using the infant gastrointestinal monitor (the sensors of the array or mesh can be wireless, paragraph 0097) (if wireless, there is no physical election connection (e.g., wires) between the sensors required, paragraph 0097).",
"Guo discloses the claimed invention as set forth and cited above except for expressly disclosing a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for input and outflow. However, Dougherty teaches a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into a belly band ([0043] Elimination detection component 504 may include a sensor or sensors (not shown) that enable diaper sensing unit 500 to detect the presence of urine or fecal matter in the diaper (an \"elimination event\")) ([0045] elimination detection component 504 may include sensors for detecting change in electrical capacitance … a capacitive sensor may be placed outside the diaper or within the diaper) and involving an elastic measurement ([0089] strain gauges) selectively coupled with a diaper sensor output ([0086] In addition to direct sensing of urine or feces, described above with respect to elimination detection component 504, various embodiments may incorporate indirect elimination detection techniques, i.e.",
"detecting signals that indicate, precede, follow, or otherwise characterize, correlate with, or predict the likelihood of elimination events) and supplemented by a log of caregiver actions for data entry for input and outflow (see [0154]-[0156]). One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo to include a physical dimensions variation based water retention/bloat sensor using a skin surface band integrated into the belly band and involving an elastic measurement, selectively coupled with a diaper sensor output and supplemented by a log of caregiver actions for data entry for input and outflow of Dougherty, as Dougherty discloses at [0003] that such modification would have allowed detection of eliminations and would have created associations between an elimination and an external cue and further teaches in the Background that the modification would have further removed the burden of nearly constant presence of caregivers, which historically has been difficult to employ in modern times.",
"Guo discloses the claimed invention as set forth and cited above except for expressly disclosing a video capture device detecting rooting behavior in the subject infant from the monitored caregiver actions. However, Rochat teaches at pg. 108 under Procedure and Design that a video camera is used to recorded a close-up view of an infant’s face, where one of the responses that is recorded is rooting response by providing tactile stimulation by a caregiver (experimenter). Rochat at pg. 108 and 109 under Scoring teaches that various the subject infant may be recorded including head motion, turning, mouth movements, tongue protrusions, eye activity (open or closed) and hand posture and location. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo with the video capture device detecting rooting behavior from caregiver actions of Rochart as Rochat teaches that rooting can be used as a reliable dependent measure to assess the discrimination between self and external stimulation at the origin of development (pg. 107, paragraph above Method).",
"Regarding claim 2, Guo as modified discloses wherein the one or more other parameters of the gastrointestinal noise comprise a noise type and a frequency of the gastrointestinal noise (paragraph 0104, 0115). Regarding claim 3, Guo as modified discloses wherein the plurality of wireless sound sensors comprises at least two audible sound sensors (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4). Regarding claim 4, Guo as modified discloses a transceiver for transmitting infant related data to a remote device (via antennae 440). Regarding claim 10, Guo as modified discloses a display device for displaying the probable cause of discomfort and the recommended action for the caregiver to alleviate the discomfort (paragraph 0013). Regarding claim 11, Guo as modified discloses wherein the controller is configured to use a provided caregiver feedback in order to identify the probable cause of discomfort and a recommended action for the caregiver to alleviate the discomfort (it is noted that a display or an audible alert is caregiver feedback that would allow identification of the probable cause of discomfort and a recommended action for the caregiver to alleviate discomfort, paragraphs 0013, 0115). Regarding claim 14, Guo as modified discloses a speaker for providing an audible alert to a caregiver responsive to a detection of a particular condition by the plurality of wireless sound sensors (paragraph 0115).",
"Claim 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield, and further in view of US 20090048540 A1 to Otto et al. (hereinafter, Otto). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing a skin surface temperature sensor, operatively coupled to the controller, for sensing a skin surface temperature of the subject infant. However, Otto teaches that a waist worn health monitoring device may include a temperature sensor and would have been advantageous to one of ordinary skill in the art because ambulatory health monitoring has advantages such is frequent monitoring of health metrics which provides great benefits to the individual wearing the device (paragraphs 0027, 0028, 0044, 0049). Claims 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20080114218 A1 to Suyama et al. (hereinafter, Suyama). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing a moisture/water monitor, operatively coupled to the controller, for detecting water retention and bloat in the subject infant. However, Suyama teaches at paragraphs 0011, 0012 and 0032 that skin moisture sensors may be part of a system and would have been advantageous to one of ordinary skill in the art because it would have improved the condition of a subject.",
"Claim 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20170030605 A1 to Heller et al. (hereinafter, Heller). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing an infrared video capture device, operatively coupled to the controller, for measuring a body temperature and determining a body position of the subject infant However, Heller teaches at paragraph 0066 an infrared camera for measuring body temperature and teaches that that a skilled artisan would have found it useful to see if the infant needs immediate attention. Claims 12, 13, 16 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20160342753 A1 to Feazell.",
"Regarding claim 12, Guo as modified discloses where the subject is an infant, as set forth and cited above. Guo as modified discloses the claimed invention except for expressly disclosing wherein the controller is configured to use predictive analysis along with the feedback in order to provide a predictive schedule for the caregiver relative to care to be given to the subject infant and other activities to be performed by the caregiver that are unrelated to the subject infant. However, Feazell teaches a remote monitoring devices (paragraph 0005) that includes sensors that provide biometric data (paragraph 0029), the sensors may be worn (paragraph 0009). Feazell teaches a controller that is configured to use predictive analysis (prediction, aggregation and correlation, paragraph 0002; predicted outcome at a particular scheduled time paragraph 0010; suggested procedure may be scheduled and completed, paragraph 0041) along with feedback (via displays paragraphs 0065, 0068 and other outputs, paragraphs 0064, 0065, 0079) to provide a predictive schedule for a caregiver relative to care to be given to a subject (prediction, aggregation and correlation, paragraph 0002; predicted outcome at a particular scheduled time paragraph 0010; suggested procedure may be scheduled and completed, paragraph 0041) and other activities to be performed by the caregiver that are unrelated to the subject infant (situational factors such as particular brand of tools, staff, room or procedure related to other patients, paragraph 0050). Regarding claim 13, Guo as modified discloses where the subject is an infant, as set forth and cited above. Guo does not expressly disclose wherein the controller is configured to learn from responses by the subject (paragraph 0035) and other subjects, the caregiver, medical personnel, and manually entered data relative to the recommended action to improve future recommended actions.",
"However, Feazell also teaches wherein the controller is configured to learn (unsupervised and/or machine learning, paragraph 0007, 0014, 0025, 0056, 0060-0065) from responses by the subject (paragraph 0035) and other subjects (paragraph 0050), the caregiver (particular caregiver, paragraph 0010), medical personnel (staff, paragraph 0011, 0012, 0024, 0033, 0037, 0050), and manually entered data relative to the recommended action to improve future recommended actions (input answers from patient queries, paragraph 0037). Regarding claim 16, Guo as modified discloses where the subject is an infant and where the biometric information is noise, as set forth and cited above. Guo does not expressly disclose wherein the memory stores at least a portion of a care history of the subject infant, and wherein the controller consults the portion of the care history in order to identify the underlying condition causing the noise and the recommended action for the caregiver to alleviate the underlying condition causing the noise. However, Feazell also teaches wherein the memory stores at least a portion of a care history of the subject (paragraph 0067, 0069-0072, 0079, 0080), and wherein the controller consults the portion of the care history in order to identify the underlying condition causing the biometric data that requires attention (paragraphs 0006, 0016, 0035, 0039) and the recommended action for the caregiver to alleviate the underlying condition causing the biometric data that requires attention (treatments that follow diagnosis, paragraphs 0016, 0031, 0039, 0043, 0062, 0096, 0101, 0104).",
"Regarding claim 17, Guo as modified discloses where the subject is an infant, where the biometric information is noise collected by a plurality of wireless sound sensors, as set forth and cited above. Guo does not expressly disclose wherein the recommendation action is tailored to the subject infant based on at least the portion of the medical history of the subject infant and data from the plurality of wireless sound sensors. However, Feazell teaches collecting biometric data from a plurality of sensors (paragraphs 0009, 0029). Feazell teaches where the recommendation action is tailored to the subject based on at least the portion of the medical history of the subject and data from the plurality of sensors that collect biometric data (paragraphs 0016, 0031, 0039, 0043, 0062, 0096, 0101, 0104). Regarding claims 12, 13, 16 and 17, one having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the controller to have the predictive analysis to provide a predictive schedule for a caregiver based on various biometric data, other inputs and providing a recommended course of action based on a diagnosis, as Feazell teaches that such controller with predictive analysis capabilities would have provided an effective way to manage a patient’s health (paragraph 0002) and would have also provided preventative personalized and provider interventions (paragraph 0014). A skilled artisan would have recognized that such effective management of a subject’s health would have increased subject safety and improved outcome.",
"Claim 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20160095527 A1 to Thng et al. (hereinafter, Thng). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing wherein the controller is configured to determine whether further action is needed and to recommend the further action, based on an item selected from the group consisting of a response by the subject infant to the recommended action and feedback from the caregiver as to an efficacy of the recommended action.",
"However, Thng teaches at paragraph 0112 a respond by the subject is indicative of efficacy and a skilled artisan would have recognized that this can be used to tailor drug treatment to suit an individual’s needs. Claim 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Brumfield and further in view of US 20170202509 A1 to Sanderson et al. (hereinafter, Sanderson). Guo as modified discloses the claimed invention as set forth and cited above except for expressly disclosing wherein the controller analyzes the location and the one or more other parameters of the gastrointestinal noise using a spectral analysis technique. However, Sanderson teaches at paragraph 0015 that spectral analysis on raw data and a skilled artisan would have recognized that this would have extracted much more frequency data. Claims 19 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20160324487 A1 to Guo et al. (hereinafter, Guo) in view of US 20150330958 A1 to Carney et al. (hereinafter, Carney) and NPL Differential Rooting Response by Neonates to Philippe Rochat et al.",
"(hereinafter, Rochat). Guo discloses a method for infant gastrointestinal monitoring (see all figures and entire document), comprising inter alia: identifying, by a controller (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) integrated with a belly band (shirt, jacket or t-shirt which includes patterns 512 and 514, paragraph 0110) (array 510 of sound sensors attached to a single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, paragraph 0110) (see Fig. 5) capable of being placed around at least a midsection area of a subject infant (sensors 138, which are also known as “patches”, paragraph 0084, 0110; Fig. 4) (waist pattern 514, which is part of array 510, which may include more or fewer sound sensors including 3, 6, 7, 10 or more, 15, 20 or 30) in at least a vertical array configuration (regarding the shirt, jacket or t-shirt arrangement, patterns 512 and 514 are in a vertical array configuration) (regarding the single piece of clothing such as a leotard, unitard, overalls, body suit, onezie, a jumper or the like, array 510 is in a vertical array configuration) (see Fig.",
"5) and operatively coupled to at least one of a plurality of wireless sound sensors integrated with the belly band, a location of a gastrointestinal noise in the subject infant based on cross-referencing wireless signals from the plurality of wireless sound sensors (the signal strength is related to the distance between two sensors, and the relative locations can be calculated based on the calculation of the signal strength measured between any two of these sensors, paragraph 0098) (alternatively, the sound strength may be used to identify the relative locations of the sensor, paragraph 0098) (the organ may be the digestive tract, liver kidneys, bladder, intestines, stomach or pancreas, paragraph 0014); and analyzing, by the controller, the location and one or more other parameters of the gastrointestinal noise to identify a probable cause of the noise and a recommended action for a caregiver to alleviate a discomfort caused by the noise (paragraph 0115), wherein each of the wireless sound sensors comprises a respective wireless transceiver, and the at least one of the plurality of wireless sound sensors has the respective wireless transceiver configured as a master that wirelessly that collects the wireless signals from other ones of the plurality of wireless sound sensors (one of the patches may include a processor and thus can be the “host” patch while the other processors are considered “slaves”, paragraph 0109) (a controller or processor may be located in one of the sensors and each sensor 138 may communicate with that processor through wireless communication, paragraph 0100) (also see paragraphs 0097-0098) to provide an external-wire-free apparatus such that there exists an absence of wires emanating from the actual subject infant when using the infant gastrointestinal monitoring method (the sensors of the array or mesh can be wireless, paragraph 0097) (if wireless, there is no physical election connection (e.g., wires) between the sensors required, paragraph 0097); wherein the one or more other parameters of the gastrointestinal noise comprise a noise type and a frequency of the gastrointestinal noise (paragraph 0104, 0115). Guo discloses the claimed invention as set forth and cited above except for expressly disclosing using, by a water retention/bloat sensor, an intake-outflow type comparison coupled with a diaper sensor output and caregiver actions for data entry for intake and outflow.",
"However, Carney teaches a method of detecting urine and/or feces in a diaper of an individual (Abstract). Carney teaches a water retention/bloat sensor (The sensor unit 1 includes a first gas sensor 3 for detecting a gas component of feces and a second gas sensor 4 for detecting a gas component indicative of urine, paragraph 0040) using an intake-outflow type comparison (The registered characteristics are compared to predetermined characteristics indicative or urine or feces, respectively, paragraph 0043), selectively coupled with a diaper sensor output (The connection between the sensor unit 1 and the receiver unit 4 can be wireless, paragraph 0041; as claimed, the diaper sensor output is the manner of connection between the diaper and the receiver, as a diaper sensor output reads on how diaper sensor data is transmitted) and caregiver actions for data entry for intake and outflow (the caregiver can easily receive information regarding incidents and decide whether diapers need to be changed or not, paragraph 0026).",
"One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo to include the sensors, comparison and caregiver actions of Carney as Carney sets forth that the sensors, comparison and caregiver actions would have improved personal hygiene and the detection methods of are great importance (Carney paragraph 0004). Guo discloses the claimed invention as set forth and cited above except for expressly disclosing detecting, using a video capture device, rooting behavior in the subject infant from the monitored caregiver actions and physical dimensions in the subject infant. However, Rochat teaches at pg.",
"108 under Procedure and Design that a video camera is used to recorded a close-up view of an infant’s face, where one of the responses that is recorded is rooting response by providing tactile stimulation by a caregiver (experimenter). Rochat at pg. 108 and 109 under Scoring teaches that various physical dimension various in the subject infant may be recorded including head motion, turning, mouth movements, tongue protrusions, eye activity (open or closed) and hand posture and location. One having an ordinary skill in the art at the time the invention was filed would have found it obvious to modify the device of Guo with the video capture device detecting rooting behavior from caregiver actions and physical dimension variations of Rochart as Rochat teaches that rooting can be used as a reliable dependent measure to assess the discrimination between self and external stimulation at the origin of development (pg. 107, paragraph above Method). Conclusion THIS ACTION IS MADE FINAL. 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 mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN PATRICK DOUGHERTY whose telephone number is (571)270-5044. The examiner can normally be reached 8am-5pm (Pacific 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, Jacqueline Cheng can be reached on (571)272-5596. 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. /SEAN P DOUGHERTY/Primary Examiner, Art Unit 3791"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-11.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
339 F.3d 857 Kenneth J. HAUGEN, Plaintiff-Appellant,v.Rochelle BROSSEAU, Puyallup Police Department; The City of Puyallup, Defendants-Appellees. No. 01-35954. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2003. Filed August 4, 2003.
COPYRIGHT MATERIAL OMITTED Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant. Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, WA, for the defendants-appellees. Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-01-05018-RJB. Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD. OPINION WILLIAM W. FLETCHER, Circuit Judge.
1 On February 21, 1999, Officer Rochelle Brosseau of the Puyallup, Washington, Police Department shot Kenneth Haugen in the back as he tried to flee from police in his vehicle. Haugen filed a § 1983 suit in district court alleging a violation of his constitutional rights, and the court granted summary judgment to Brosseau. Construing the evidence in the light most favorable to Haugen, we inquire whether Brosseau's use of deadly force violated the Fourth Amendment and, if it did, whether she is entitled to qualified immunity. We conclude that the evidence, so construed, shows that Brosseau's conduct violated the Fourth Amendment, and, further, that her conduct violated clearly established law governing the use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). We therefore reverse the district court's grant of summary judgment.
I. Background
2 Kenneth Haugen and Glen Tamburello were in business together selling drugs and occasionally fixing cars. At some point, their relationship soured, and Haugen decided to dissolve the partnership. On February 20, 1999, he took some of his tools from Tamburello's shop. Tamburello wanted the tools back and wanted retribution. He went to the police station, and, in an interview with Officer Rochelle Brosseau, reported that Haugen had burglarized his shop. Tamburello also contacted the Riddles, neighbors of Haugen's mother, and requested that they call him should they see Haugen at his mother's house.
3 Haugen, his girlfriend Deanna Nocera, and Nocera's daughter went to Haugen's mother's residence the night of February 20, where they did some laundry and spent the night. The next morning, Haugen began to spray-paint his 1984 Jeep Cherokee in his mother's driveway. He had a warrant out for his arrest and apparently thought he might evade detection driving a yellow rather than a white Jeep. It was a windy morning, and the Riddles complained to Haugen that the spray paint was blowing into their yard. When Haugen refused to stop, the Riddles called Tamburello. Tamburello drove with Matt Atwood to Haugen's mother's house where they accosted Haugen. Haugen began to run away, but Tamburello caught him, threw him to the ground, and began to beat him up. Haugen and Nocera begged Tamburello to stop, and, after being persuaded by several punches, Haugen agreed to give the tools back. Tamburello and Atwood then forcibly led Haugen into the pickup and planned to drive to a storage facility where Haugen had stashed the tools, but Irene Riddle, having seen the brouhaha outside, had already dialed 911.
4 After her interview with Tamburello on February 20th, Officer Brosseau had learned that there was a felony no-bail warrant out for Haugen's arrest based on drug and other offenses. The next morning, while in the midst of a traffic stop nearby, Brosseau heard the report of the ruckus at Haugen's mother's house. She responded quickly, and when she arrived Tamburello and Atwood were in the process of getting Haugen into the pickup. Haugen took advantage of the distraction caused by Brosseau's arrival and broke away from his would-be captors. He ran up the driveway, past his mother's house, and into the backyard. Brosseau gave chase for only a few steps and then called for back-up, including a K-9 unit to help locate Haugen. Over the next half hour or so, Brosseau and other officers interviewed the witnesses still at the scene and set up a containment perimeter for the search. To avoid interfering with the K-9's efforts to locate Haugen by scent, the officers instructed Tamburello and Atwood to remain in Tamburello's pickup and instructed Nocera and her daughter to remain in her Honda. The pickup was parked in the street in front of the driveway. The Honda was parked in the driveway in front of the Jeep. The Jeep was in the driveway facing the Honda and the street and was angled somewhat to the left.
5 Haugen, meanwhile, hid in various bushes and other locations around the neighborhood as he tried to watch what was happening at his mother's house. Apparently seeking help, Haugen knocked on the back door of Margaret Rounds, a neighbor who lived down the street. No one answered, so Haugen left. Rounds was at home and was aware of the situation outside because she had been listening to a police scanner, but she had no inclination to help Haugen. Instead, she called police and said that there was a man in her backyard. Brosseau and the two other officers on foot, Officers Subido and Pashon (with the K 9), ran to Rounds's backyard. Subido told Brosseau to circle around the front, and as Brosseau rounded the house, she saw Haugen about fifty feet ahead of her running toward his Jeep.
6 Haugen got into the Jeep and tried to start it. Brosseau ran to the Jeep with her handgun drawn and ordered him to stop. As Haugen fumbled with his keys, Brosseau hit the driver's side window several times with her handgun, and, on the third or fourth try, she broke the window. Brosseau had mace and a baton but did not use them. Instead, she tried to reach in the car to grab the keys, but just after she broke through the window, Haugen succeeded in starting the Jeep. Either before Haugen pulled away, or just after he started to do so (the evidence is conflicting on this point), Brosseau shot him in the back. From Brosseau's position when she shot, Haugen was in front of her, and beyond Haugen were Nocera, Nocera's daughter, Tamburello, and Atwood. Brosseau said that she was "aware of the background exposure," but she nonetheless believed she had a safe shot because she thought the bullet would be stopped by the Jeep's engine block before reaching the bystanders. Because Haugen did not stop, Brosseau believed she had missed him, but Brosseau did not take a second shot because she thought the risk became too great as he began to drive away.
7 The bullet entered Haugen's back near the left shoulder blade and lodged in his chest. Despite the wound, Haugen managed, in his words, to "stand on the gas" and to drive out of the driveway, across the neighbor's yard, and onto the street. Photographs in the record show tire tracks on the driveway due to displacement of gravel. After Haugen escaped, some of the officers gave chase. Haugen's injury made it difficult for him to drive. Once he realized he had been shot, he used one hand to hold the wound and the other to drive. According to Haugen, he never got the Jeep past third gear and never drove faster than forty-five miles per hour. Before long, Haugen had difficulty breathing and pulled over to the side of the road, where he passed out. He was apprehended and taken to the hospital.
8 The precise circumstances of the shooting are disputed. In his deposition, Haugen testified that he believed the gun may have discharged accidentally while Brosseau was reaching through the driver's window grappling with him. Brosseau, on the other hand, says she shot Haugen intentionally. According to Brosseau, she stepped back and away from the driver's window once the Jeep started moving and fired one shot through the rear side window on the driver's side.
9 When parties dispute the facts, we typically accept the non-moving party's version when ruling on a summary judgment motion. In this case, however, we accept Brosseau's statement that she shot Haugen intentionally. No gun shot residue was found on Haugen's clothes, and the forensic scientist determined that the bullet hit another object before it struck Haugen. Most tellingly, photos of Haugen's Jeep show a bullet hole in the rear side window. When asked about the bullet hole in the window, Haugen responded: "That's something I can't explain." The parties do not dispute that only one shot was fired. Because the evidence unmistakably indicates that Brosseau shot Haugen through the rear side window, we accept Brosseau's statement that she intentionally shot Haugen through that window rather than Haugen's speculation that the gun discharged accidentally inside the Jeep.
10 Haugen recovered from the gunshot and filed suit in district court under 42 U.S.C. § 1983 claiming that Brosseau, the Puyallup Police Department, and the City of Puyallup deprived him of his Fourth Amendment rights. He also alleged causes of action based on Washington tort law. The defendants moved for summary judgment, and the district court granted their motion. It held that, even if the shooting constituted excessive force under the Fourth Amendment, Brosseau had not violated a clearly established right and was therefore protected by qualified immunity. The district court also held that Haugen had not pointed to any official practice that led to a constitutional violation, and so he could not pursue a suit against the police department or the City of Puyallup. Finally, the court held that Haugen could not pursue state tort claims because his injury occurred during the commission of a felony.
11 Haugen appealed. We review a grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).
II. Discussion A. Fourth Amendment Claim Against Brosseau
12 Officer Brosseau argues that she is entitled to qualified immunity from Haugen's Fourth Amendment claim. Following the Supreme Court's ruling in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), we undertake a two-step analysis when a defendant asserts qualified immunity in a motion for summary judgment. We first face "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201, 121 S. Ct. 2151. If we determine that a constitutional right has been violated, we then move to the second step and "ask whether the right was clearly established" such that "it would be clear to a reasonable officer that [her] conduct was unlawful in the situation [she] confronted." Id. at 201-02, 121 S. Ct. 2151.
1. Fourth Amendment Right
13 The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court has held that the Fourth Amendment prohibits the use of excessive force by police in the course of apprehending suspected criminals. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Supreme Court set forth the specific constitutional rule governing when police officers may use deadly force:
14 The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead....
15 ... Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
16 Id. at 11-12, 105 S. Ct. 1694. Under Garner, deadly force cannot be justified based merely on a slight threat. An officer may not use deadly force "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. at 3, 105 S. Ct. 1694.
17 The application of Garner is clear in many cases. Where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force. See, e.g., Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir.2002) (holding that deadly force was justified where a suspect violently resisted arrest, physically attacked the officer, and grabbed the officer's gun); Reynolds v. County of San Diego, 84 F.3d 1162, 1168 (9th Cir.1996) (holding that deadly force was reasonable where a suspect, who had been behaving erratically, swung a knife at an officer); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) (suggesting that the use of deadly force is reasonable where a suspect points a gun at officers); Garcia v. United States, 826 F.2d 806, 812 (9th Cir.1987) (holding that deadly force was reasonable where the decedent attacked an officer with a rock and stick).
18 On the other hand, the mere fact that a suspect possesses a weapon does not justify deadly force. See, e.g., Harris v. Roderick, 126 F.3d 1189, 1202 (9th Cir.1997) (holding, in the Ruby Ridge civil case, that the FBI's directive to kill any armed adult male was constitutionally unreasonable even though a United States Marshal had already been shot and killed by one of the males); Curnow v. Ridgecrest Police, 952 F.2d 321, 324-25 (9th Cir.1991) (holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot); Ting v. United States, 927 F.2d 1504, 1508-11 (9th Cir.1991) (holding that deadly force was unreasonable where a suspect had dropped his gun).
19 In some circumstances, deadly force may be justified based on the nature of the crime committed by the fleeing suspect. See, e.g., Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997) (holding that deadly force was reasonable where a fleeing suspect had shot a victim in the course of a burglary). But the prior commission of even a violent crime does not always justify deadly force. See Harris, 126 F.3d at 1203 ("The fact that [the suspect] had committed a violent crime in the immediate past is an important factor but it is not, without more, a justification for killing him on sight."); Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.1992) (holding that an officer's second use of deadly force was unreasonable even though the suspect had violently assaulted the officer a few minutes before; by the time of the second use of deadly force, the suspect was advancing toward the officer but was wounded and unarmed).
20 The parties dispute whether, under Garner, Officer Brosseau's use of deadly force was reasonable in the circumstances of this case. In a five-page type-written statement and in a lengthy tape-recorded police department interview, Brosseau described the episode and gave her reasons for using deadly force. First, Brosseau stated that, at the time she shot Haugen, she knew that he had a felony no-bail warrant outstanding for drug-related charges, and she had probable cause to believe that he had committed a burglary. Second, Brosseau stated that she saw Haugen reach below the seat of the Jeep, and that she thought he might be reaching for a weapon. Third, Brosseau stated that she believed Haugen would injure officers or other people in the area by fleeing in the Jeep. She said that he "was driving in an erratic manner," and that she shot him to prevent possible injury to others. We analyze Brosseau's stated reasons in turn.
21 a. Haugen's Prior Crimes
22 Brosseau stated that she knew of the warrant for Haugen's arrest and that she believed he had committed a burglary. Under Garner, the fact that Brosseau believed Haugen had committed drug crimes and a burglary is not sufficient to justify deadly force. In many deadly force cases, the plaintiff will have committed one or more crimes, but Garner and our circuit cases make clear that the mere commission of prior crimes does not justify the use of deadly force. In Garner itself, the fleeing suspect was a burglar. See 471 U.S. at 3-4, 105 S. Ct. 1694. In Ting, the suspect was part of a major narcotics organization. See 927 F.2d at 1507-08. In Curnow, officers believed that the suspect had assaulted a woman. See 952 F.2d at 323. In Andaya, the suspect had just violently assaulted the officer. See 958 F.2d at 883-84. In Harris, the suspect had fired shots into the woods and may even have been the man who killed a United States Marshal. See 126 F.3d at 1193. In none of these cases, including Garner, did the suspect's crime justify the use of deadly force.
23 Here, Brosseau had reason to believe that Haugen had committed drug crimes and burglary. Drug crimes and burglary are serious offenses, but under Garner the critical question is whether the officer has "probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm." 471 U.S. at 11, 105 S. Ct. 1694. Brosseau had no such probable cause.
24 b. Haugen's Potential Weapon
25 Officer Brosseau said she believed that Haugen might have a weapon in the car. When Haugen was running toward the Jeep, Brosseau said that she thought he might be running for a weapon since he would not be running simply to hide there. When she first approached the Jeep, she said that he "reached down to an area on the floorboard in the middle of the front seat" and that she "thought he was reaching for a weapon." Once she broke the window, however, Brosseau saw that he had only keys in his hands. But moments later, just as he started the car, Brosseau said Haugen "dived forward as if to grab something on the floorboard again." Brosseau stated that she feared again that he might have a weapon, and that she therefore stepped back and away from the driver's window.
26 Brosseau admitted that at the time she shot Haugen, she was not worried that he would use any weapon against her. She had stepped back and away from him, and had positioned herself behind him, so that even if Haugen had had a gun he would not have had a clear shot. She said, however, that she feared if Haugen had a gun he might use it on some officers who might have approached the front of his car, or that he might use it against Tamburello or Atwood, "who he had cause to be unhappy with."
27 The factual predicate of Brosseau's stated reason is that Haugen dove forward as he started the car. But several other witnesses gave statements about what Haugen was doing in the car. None of these witnesses mentioned that Haugen dove forward, and none has offered any support for Brosseau's assertion that Haugen looked as if he might have been reaching for a weapon. Nor has Brosseau offered any other evidence to support her belief that Haugen might have had a gun. She did not see a gun in the car, and she had not received any reports that he might have one, or indeed that he had ever had one. Under Ninth Circuit precedent, the mere presence of a weapon does not justify the use of deadly force, see Harris, 126 F.3d at 1202; Curnow, 952 F.2d at 324-25; Ting, 927 F.2d at 1508-11, let alone the potential presence of a weapon.
28 "[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern." Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001). Movements by a suspect are not enough to justify deadly force if, in light of the relevant circumstances, those movements would not cause a reasonable officer to believe that the suspect was reaching for a weapon. In support of her stated fear that Haugen was reaching for a weapon, Brosseau has cited no objective factors other than her stated observation that he dove forward and appeared to be reaching for something. Construing all of the relevant facts and circumstances and drawing all reasonable inferences in Haugen's favor, as we must on a motion for summary judgment, we conclude that Brosseau has not demonstrated an objectively reasonable fear about a potential weapon that would justify her use of deadly force.
29 c. Impending Escape in a Vehicle
30 Finally, Brosseau asserted that she feared Haugen would injure officers or others when he tried to get away in his Jeep. In her type-written report, Brosseau described her perception of the threat presented by Haugen's escape. In relevant part, her report states:
31 I was fearful for the other officers on foot who I believed were in the immediate area, for the occupied vehicles in his path and for any other citizens who might be in the area. It should be noted that the small red car [i.e., Nocera's Honda] was parked directly in front of the Jeep and that I had last seen Nocera and her daughter sitting inside of it. I saw no one between the Jeep and me. I fired one round through the rear driver's side window. I had aimed at a position I perceived would be the driver's location in an attempt to stop him before he could hurt anyone.
32 . . .
33 During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him including attempting to stun him by striking his head. At this time I am unable to make an accurate estimation of the distance the Jeep was from me when I fired.
34 In her tape-recorded police department interview, Brosseau further described her decision to use deadly force based on what she perceived as the threat posed by Haugen's imminent escape. The relevant portions of her interview are as follows:
35 Q. At that point, who then did you become concerned about?
36 A.... [M]y concern at that point and time were for the vehicles directly in front of him. One, which was um, directly in front of him, which is occupied by a woman and her child. And the other officers that I felt were in the immediate area, that were coming on foot to back me up. I was quite sure that some of them were right close to where he was driving.
37 . . .
38 Q. How close do you think his uh, speeding car came from striking [Nocera's red Honda]?
39 A. I don't know.
40 Q. Okay. Was it within ten feet?
41 A. I don't know.... I'm having some trouble with perceptions of distances.
42 Q. Okay. Can you estimate how close you were to his car um, when you fired the shot?
43 A. No. Not at this time.
44 . . .
45 Q. Okay. Did, was there a way for him, the Cherokee to get out onto the street by using the drive way?
46 A. No.
47 Q. So what did you think he was going to do?
48 A. Well, the driveway was completely blocked by the uh, the pick up truck. And the little red car was almost completely blocking it as well. So, I thought that his only way out of there was going to be to, to strike the truck or the little red car, or both.
49 Q. So the two people in the truck were, were in danger of being struck by a recklessly driven vehicle?
50 A. Yes.
51 Q. As well as the little girl and the mother?
52 A. Yes.
53 Q. Haugen's girlfriend in the red car? Where, were did you believe the other officers at the scene were, um, during the incident where you, were you, when you fired the shot? At that moment.
54 A. At that moment uh, can we stop the tape again for a second?
55 . . .
56 Q. When you were at the driver's door confronting Haugen, um, where were the other officers at the scene?
57 A. I, I did not see where they were at.
58 Q. Where did you think they were at?
59 A. I presume that they were in the immediate area, approaching to assist me.
60 . . .
61 Q. Um, what was your objective when you fired your weapon at the moment you fired the weapon?
62 A. To protect my fellow officers and the community from an eminent [sic] danger.
63 Q. You reasonably believed that there was an immediate threat to their life?
64 A. Yes, I do.
65 . . .
66 Q. Okay. And once again, just so that I know for sure, can you give me an, your basis for the reasonable belief that the other people's lives were threatened?
67 A. First of all, I still had in mind that he had a weapon. Um, I thought that it would be very difficult for him to try and shoot at me from the position we were at when I fired. Uh, however, I felt that he could've fired on any officers in front of him, or the people in the pick-up truck, uh, who he had cause to be unhappy with. And his driving, more than anything else. His vehicle. I did not believe he could see where he was going. He was driving in an erratic manner. Now had pedestrians and officers and residents in the area.
68 Brosseau thus indicated in her written statement and interview that she was concerned that Haugen's driving would endanger her "fellow officers," the four people in the Honda and the pickup, and others. She variously characterized these people as "any other citizens who might be in the area," those who were "all around him," "the community," and "residents in the area."
69 To the extent that Brosseau said she shot Haugen because he "was driving in an erratic manner," her statement is not supported by the evidence regarding the timing of the shooting. Haugen says that Brosseau shot him before the Jeep even moved. According to Haugen, not only was he not driving "in an erratic manner," he was not driving at all. Others stated that, at most, Haugen's Jeep had just begun to move. Nocera said that Brosseau shot Haugen after he started the Jeep, just as he was "getting ready to pull out," and that it "was barely starting to roll." Aaron Riddle said he heard the shot "pretty much at the same time" that the Jeep started moving. Irene Riddle said she heard the shot just as Haugen first revved up the Jeep. Neighbor Florence Ledbetter across the street said she saw and heard the shot just when the Jeep "started to move." Tamburello stated that the Jeep was already moving, but had gone perhaps six feet. Atwood said that Brosseau shot when the Jeep "just started pulling away," that it "[h]adn't moved very far," and that it had gone "maybe" five or ten feet. Accepting the version of the disputed facts most favorable to Haugen, we do not credit Brosseau's assertion that "he was driving in an erratic manner," for we must assume on summary judgment that the Jeep had not even moved when Brosseau shot him.
70 Brosseau also stated that she thought Haugen's driving was particularly dangerous because he could not see where he was going. Brosseau said that "the front windshield and at least part of the passenger side windows [of the Jeep] were covered with" the newspaper Haugen had used to protect the glass from the spray paint. Haugen, however, testified that there was no paper on the windshield. Atwood also stated that there was no newspaper on the windshield. Tamburello stated that he saw some paper on one side of the windshield, but that Haugen pulled it off before he got in the Jeep. Because at this stage in the proceedings we must construe the factual evidence in Haugen's favor, we cannot say that there was objective evidence supporting Brosseau's claim that Haugen could not see where he was going as a result of the newspaper covering the windshield.
71 Brosseau further explained that, at the moment she fired, she did not believe that Haugen's impending escape in the Jeep posed a danger to her, but that it did pose a danger to others in the area. She stated that she was worried, specifically, about Nocera, Nocera's daughter, Tamburello, and Atwood. Nocera and her daughter were inside the red Honda that was parked in the driveway between the Jeep and the street. Tamburello and Atwood were seated in the pickup that was parked in the street at the end of the driveway.
72 Brosseau indicated that she was worried that Haugen could not escape without hitting the Honda or the pickup. According to Brosseau, the driveway was "completely blocked" by the pickup and "almost completely block[ed]" by the Honda. But Brosseau could not say how close Haugen actually came to hitting the Honda: "I'm having some difficulty with perceptions of distances." Brosseau nonetheless argues that she reasonably believed that Haugen's escape was dangerous because he was likely to hit the Honda or the pickup.
73 Contrary to Brosseau's statements, Haugen stated that he had an easy escape by driving off to the left around the Honda and pickup. Haugen admitted that he was in a fairly "small, tight space" which was "not like a parking lot," but he said that the driveway was about twenty feet wide and that he had "plenty of room" to drive between the Honda and the neighbor's house without hitting anything. The Jeep was already angled to the left, and Atwood stated that he saw Haugen turn the wheels to the left before putting the Jeep in gear. Haugen said that he had a "clear, straight shot" out of the driveway. The photographs of the scene also show that Haugen had more than enough room to drive away without striking Nocera's Honda or Tamburello's pickup. Viewing the evidence in Haugen's favor, we conclude that Brosseau has not pointed to objectively reasonable factors to support her belief that Haugen's escape from the driveway posed a significant risk of death or serious injury to the people in the Honda and the pickup.
74 Brosseau also asserted that she feared for the safety of her fellow officers. She has offered no specific evidence to support this fear. She claims that she "presume[d] that they were in the immediate area, approaching to assist," but she does not claim that she saw them or knew that they were in a dangerous place. She had left officers Subido and Pashon, the only other officers on foot, in Rounds's backyard. Two other officers were in their patrol cars in containment positions on the street several hundred feet to the south of Haugen's mother's house. Brosseau had not called Subido and Pashon to assist her, and there is no indication that they were running to give her aid. Atwood, who witnessed the events while seated in Tamburello's pickup, stated that the other two officers were still in the backyard at the time Brosseau fired. Even if they had been running to assist, Subido and Pashon would have been running from the south-east, while Haugen was escaping to the north-west. Thus, while Brosseau stated that she feared that officers on foot might be struck by Haugen's Jeep as he drove away, her statement is no more than a "a simple statement" of fear unsupported by "objective factors." Deorle, 272 F.3d at 1281. She has not offered any evidence to support the claim that Haugen posed a significant risk of death or serious bodily injury to fellow officers.
75 d. High-Speed Police Chase
76 The dissent contends that a need to prevent a dangerous high-speed police chase justified Brosseau's decision to use deadly force. Brosseau stated that she was concerned about Haugen's erratic driving, but she never stated that she shot to prevent a dangerous high-speed chase, and has not argued to us that a potential chase justified her use of deadly force. In this respect, this case to some extent resembles Garner, where the police officer had initially justified his use of deadly force based only on the need to prevent Garner's escape but asserted later-apparently through counsel-that deadly force was justified by Garner's dangerousness. See Garner, 471 U.S. at 21, 105 S. Ct. 1694. We know from Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), that "the `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them." The relevant facts and circumstances are those known to the officer at the time she acts. "[A]n officer's use of force must be objectively reasonable based on [her] contemporaneous knowledge of the facts." Deorle, 272 F.3d at 1281. We examine the objective facts and circumstances known to Brosseau at the time she acted to determine whether she had probable cause to believe that a potential high-speed chase "pose[d] a significant threat of death or serious physical injury to the officer or others." Garner, 471 U.S. at 3, 105 S. Ct. 1694.
77 At the time Brosseau shot Haugen, it was clear that he intended to flee in his Jeep and that a number of non-lethal measures had failed to prevent him from doing so. But it is equally clear that Brosseau and her fellow officers did not need to kill Haugen in order to avoid a dangerous high-speed chase. They could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely. Haugen had already remained at large for several months while his no-bail warrant was outstanding, and there is no reason that the events of February 20 and 21 suddenly made his freedom an immediate threat to public safety. The cost to society of allowing criminals to flee is great, but the Supreme Court has held that this cost does not always justify deadly force. "It is not better that all felony suspects die than that they escape." Id. at 11, 105 S. Ct. 1694.
78 Because Brosseau has made no argument based on the danger of a potential high-speed chase, there is nothing in the record to tell us whether, under the Puyallup Police Department policies or other applicable rules, it would have been appropriate for the officers to initiate or continue a high-speed chase that posed a significant danger to others. We note, however, that under Washington law, police officers in pursuit must drive with due regard for the safety of others. See Wash. Rev.Code § 46.61.035. Officers in Washington may be held liable for injuries caused during high-speed chases, and, to comport with their state law duty of care, they must recognize "that at times it would be more prudent to cease a pursuit in order to protect the public." Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360, 1363 (1975).
79 Different states and localities have different laws and policies regarding police pursuit. Many have recognized that officers have duties of care in relation to vehicular pursuits, and that officers may be unreasonable in initiating or continuing high-speed chases depending, among other things, on the nature of the suspect's crimes.1 "Unusual circumstances may make it reasonable" for police to initiate or continue high-speed chases, but "such conduct is not justified unless the end itself is of sufficient social value." Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn.1994). "The decision to initiate or continue pursuit may be negligent when the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending suspects." Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex.1992). A ruling that allowed officers to use deadly force to prevent all vehicular escapes would have the paradoxical result that officers could reasonably shoot to kill even when, under state law, they could not reasonably initiate or continue a chase.
80 The dissent concludes that a justifiable means of eliminating the danger of a possible high-speed chase in this case is to shoot the suspect before he begins to drive away. The dissent relies on an article, not cited by the parties, attesting to the danger of police chases. See dissent at 10622, n. 5 (citing John Hill, High Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, FBI Law Enforcement Bulletin 14 (July 2002)). But the article reaches quite a different conclusion from the dissent. Even after a suspect has fled and a pursuit has been initiated,
81 [t]he most effective way to reduce risks is to terminate a pursuit. Clearly, too many pursuits continue that officers obviously should have terminated. Research on pursuit data and statistics show that termination dramatically could reduce traffic accidents, fatalities, and injuries. Police must reevaluate their thinking and mission. Agencies rarely can justify endangering the public to pursue a violator.
82 Hill, supra, at 16 (endnote omitted). Thus, just as Garner instructs that, to comply with the Fourth Amendment, an officer must sometimes forgo or discontinue deadly force and allow a suspect to escape, see 471 U.S. at 11-12, 105 S. Ct. 1694, state tort laws and police practice experts instruct that an officer must sometimes forgo a chase and allow a suspect to escape.
83 It is no less true in potential high-speed chases than in other circumstances that an officer may appropriately use deadly force if "necessary to prevent an escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. at 3, 105 S. Ct. 1694. But because officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase, we reject an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle. Such an approach would essentially limit the Supreme Court's holding in Garner to cases where a suspect flees on foot. The Court's opinion contains no such limitation, and we decline to read such a limitation into it.
84 To support its contention that the possibility of a dangerous high-speed chase justified Brosseau's use of deadly force in this case, the dissent cites general statistics of the dangers of car chases. These statistics have not been supplied by the parties, and perforce have not been relied on by Brosseau or responded to by Haugen. Moreover, even if we could properly take judicial notice of statistics of car chases, the Supreme Court already has rejected this kind of general statistical approach to prove dangerousness in an individual case. In Garner, Tennessee attempted to justify its use of deadly force on a fleeing burglar by noting that 3.8% of burglaries involved violent crime, accounting for literally millions of incidents of violence. See id. at 21-22 & n. 23, 105 S. Ct. 1694. But the Supreme Court held that the general statistical probability alone cannot justify deadly force. A generalized assessment of dangerousness of burglars "could not, without regard to the other circumstances, automatically justify the use of deadly force." Id. at 21, 105 S. Ct. 1694.
85 In some fairly extreme circumstances, our sister circuits have held that the danger presented by suspects who flee in vehicles can justify deadly force. In Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992), the Sixth Circuit held that an officer was justified in using deadly force after a suspect had led police on a high-speed chase at speeds over ninety miles per hour, swerved toward police cars several times, and smashed into an officer's car while the officer stood next to it. In Cole v. Bone, 993 F.2d 1328, 1330-33 (8th Cir. 1993), the Eighth Circuit held that deadly force was justified where the suspects, driving an eighteen-wheel tractor-trailer, had led police on an extended chase at speeds over ninety miles per hour through heavy traffic, forcing over 100 cars off the road, and had swerved at pursuing police several times. In that case, before using deadly force, the police had attempted roadblocks and had tried to disable the truck by shooting the tires and radiator. In Scott v. Clay County, 205 F.3d 867, 877-78 (6th Cir.2000), the Sixth Circuit held that deadly force was justified where the suspect had swerved off the road, narrowly missed an unmarked cruiser and a sheriff on foot, led police on a twentyminute chase at speeds up to 100 miles per hour, and after losing control, attempted to run down an officer. In Pace v. Capobianco, 283 F.3d 1275, 1281-82 (11th Cir.2002), the Eleventh Circuit held that deadly force was justified where a suspect, already pepper-sprayed after struggling with an officer, led police on an extended high-speed chase, during which he made erratic turns, drove on the wrong side of the road with his headlights off, swerved at oncoming cars, drove through a yard, nearly hit a motorist, and then accelerated toward a patrol car.
86 But our sister circuits have also held that police chases — even high-speed chases — do not always justify deadly force. See Vaughan v. Cox, 264 F.3d 1027, 1031-34 (11th Cir.2001), vacated by 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002), reinstated and supplemented on remand at 316 F.3d 1210 (11th Cir.2003); Donovan v. City of Milwaukee, 17 F.3d 944, 946-51 (7th Cir.1994). In Vaughan, officers pursued a vehicle that had rammed a patrol car and then accelerated to eighty or eighty-five miles per hour in an attempt to avoid capture. In an attempt "to disable either the truck or [the driver]" one of the officers fired three rounds into the truck. One of the bullets struck the passenger in the truck, puncturing his spine. The Eleventh Circuit held, in those circumstances, that "a reasonable jury could find that [the suspects'] escape did not present an immediate threat of serious harm to [officers] or others on the road." 264 F.3d at 1034. See also id. at 1034 n. 8 (distinguishing that case from Smith, Cole, and Scott). In Donovan, the Seventh Circuit held that officers engaged in a high-speed pursuit were not justified in using deadly force — in this case, a road block — to stop a fleeing motorcycle. The court stated that it was "very skeptical" of an approach that would allow police to use deadly force to end vehicular pursuits in all circumstances, because "not every fleeing suspect poses a grave danger." 17 F.3d at 951. In both Vaughan and Donovan, unlike in this case, the suspects already were driving in a dangerous manner without regard for the safety of others. But in those cases, that danger was held to be insufficient to justify deadly force.
87 None of the cases decided by our sister circuits and cited by the dissent even remotely supports a holding in this case that Brosseau was justified in using deadly force. Unlike the dissent, we believe that there is a manifest difference between swerving at cars while driving at ninety miles per hour and then smashing a patrol car with an officer standing next to it, see Smith, 954 F.2d at 347-48; driving an eighteen-wheel truck at ninety miles per hour through heavy traffic, see Cole, 993 F.2d at 1330-31; leading a twenty-minute chase at 100 miles per hour and attempting to run down an officer, see Scott, 205 F.3d at 877-78; and driving at high speeds on the wrong side of the road with headlights off and accelerating toward a patrol car, see Pace, 283 F.3d at 1281-82, on one hand; and getting into a vehicle and fleeing, or preparing to flee, on the other.
88 To the extent that the dissent looks to the particular facts of this case rather than to the general danger of police chases, it does not view the evidence in the light most favorable to Haugen, as we are required to do on summary judgment. For example, to portray Haugen as violent and therefore dangerous, the dissent asserts that he was engaged in a "violent brawl" when Brosseau arrived on the scene. Dissent at 877. By all accounts, however, Haugen was on the receiving end of the violence. Tamburello stated, "[W]hen he seen me he started to run. . . . And I ran over and grabbed him. Got into a little scuffle there. . . . I was on top of him on the ground." Atwood, Tamburello's companion, stated that when Tamburello caught Haugen, he "squirmed a little bit. Tried to get away. You know, he begged him, didn't want to go[.]" Nocera, Haugen's girlfriend, stated that Tamburello "ran up and tackled Ken to the ground," and "continued to pounce on him out here by the [car]." Moreover, the "brawl" (if that is what it was) was finished before Brosseau arrived.
89 Further, to exaggerate the danger of Haugen's escape, the dissent stresses that Haugen had to escape through a "narrow passageway" and a dangerous "obstacle course." Dissent at 879. Haugen said that he was in a "small, tight space" that was "not like a parking lot," but that the driveway was twenty feet wide, giving him "plenty of room" and a "clear, straight shot" to get to the street. The photographs of the scene show that Haugen had more than enough room to escape without hitting anything or anyone. Indeed, he was able to drive away safely even after Brosseau shot him.
90 Finally, the dissent characterizes Haugen as "deranged" and "wild," dissent at 10623, 10629, but this characterization is not supported by the record. Brosseau stated that she held her handgun to Haugen's temple, that he yelled "you're gonna have to fuckin kill me." But her version of the facts is contradicted by Haugen's version of the facts and by the other witnesses, who saw and heard no such thing. The dissent also asserts that Haugen was behaving "suicidally," dissent at 10620, but there is no indication in the record that Haugen intended to harm himself. (Of course, on the dissent's view, fleeing from police in a vehicle was itself suicidal since the police could shoot to kill.)
91 e. Fourth Amendment Conclusion
92 Based on the foregoing, we conclude that there is insufficient objective evidence in the record to grant Brosseau's summary judgment motion. Taken in the light most favorable to Haugen, the objective evidence, examined in light of the totality of circumstances surrounding this case and evaluated as of the time Brosseau actually fired her gun, does not support a conclusion as a matter of law that Brosseau had "probable cause to believe that [Haugen] pose[d] a significant threat of death or serious physical injury to the officer or others." Garner, 471 U.S. at 3, 105 S. Ct. 1694. We therefore conclude a reasonable jury could conclude, based on this evidence, that Brosseau's conduct violated Haugen's Fourth Amendment right. See Katz, 533 U.S. at 201, 121 S. Ct. 2151.
2. Qualified Immunity
93 Having determined that "a violation could be made out on a favorable view of [Haugen's] submissions," id., we must next decide whether Brosseau is nonetheless entitled to qualified immunity. She is not entitled to immunity if the Fourth Amendment right at issue was clearly established. See id. For a right to be clearly established, it must be defined with sufficient specificity that a reasonable officer would have known she was violating it.
94 In some situations, the Fourth Amendment's general prohibition against excessive force may not be sufficiently specific to put an officer on notice of what conduct is allowed and what is not:
95 [T]here is no doubt that Graham v. Connor. . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson "that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."
96 Id. at 201-02, 121 S. Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). In other words, if Brosseau made a reasonable mistake about what the law requires, she is immune from suit. See id. at 205, 121 S. Ct. 2151.
97 On the other hand, state officials are not entitled to qualified immunity simply because no case with materially similar facts has held their conduct unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739-41, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir.2003). The standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that her conduct deprived a victim of his rights, she is not entitled to qualified immunity. See Pelzer, 536 U.S. at 740 & n. 10, 122 S. Ct. 2508.
98 Beyond the general proposition that excessive force is unconstitutional, the Supreme Court in Garner articulated a "special rule" governing the use of deadly force. See Monroe v. City of Phoenix, 248 F.3d 851, 860 (9th Cir.2001). Under Garner, deadly force is only permissible where "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." 471 U.S. at 11, 105 S. Ct. 1694. See, e.g., Harris, 126 F.3d at 1202 (holding that the FBI agent in the Ruby Ridge civil case was not entitled to qualified immunity); Curnow, 952 F.2d at 324-25 (holding that officers were not entitled to qualified immunity where they shot a suspect who possessed a gun but was not pointing it at the officers and was not facing the officers when they shot).
99 The doctrine of qualified immunity operates "to protect officers from the sometimes hazy border between excessive and acceptable force." Katz, 533 U.S. at 206, 121 S. Ct. 2151. Officers are not liable when they err in borderline cases. See Deorle, 272 F.3d at 1285. But the evidence here, when taken in the light most favorable to Haugen, does not present a borderline case. Viewing the evidence in Haugen's favor, Brosseau shot Haugen in the back even though he had not committed any crime indicating that he posed a significant threat of serious physical harm; even though Brosseau had no objectively reasonable evidence that Haugen had a gun or other weapon; even though Haugen had not started to drive his vehicle; and even though Haugen had a clear path of escape. Viewing the evidence in Haugen's favor, there is insufficient objective evidence to support Brosseau's stated concern that, at the time she shot him, Haugen posed a significant risk to police officers or others in the area. We therefore conclude that Brosseau's mistake about the requirements of the Fourth Amendment was unreasonable, and that she had "`fair warning' that [her] conduct deprived [Haugen] of a constitutional right." Pelzer, 536 U.S. at 740, 122 S. Ct. 2508.
100 We are mindful that police officers are called upon "to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham 490 U.S. at 397, 109 S. Ct. 1865. "The'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396, 109 S. Ct. 1865. We must judge Officer Brosseau's action at the time she decided to shoot, and we must give her leeway to make reasonable mistakes.
101 But we are also mindful of the grave threat to constitutional rights that is present when government officials use deadly force against citizens. "[W]hile giving due deference to difficult judgment calls made on the street, we also must insure the rights of citizens, even fleeing felons, to be free from unreasonable seizures." Donovan, 17 F.3d at 951. "The intrusiveness of a seizure by means of deadly force is unmatched." Garner, 471 U.S. at 9, 105 S. Ct. 1694. "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion." Id. at 10, 105 S. Ct. 1694. It was for that reason that the Supreme Court in Garner held that deadly force may not be used simply because a felony suspect is successfully evading arrest. Viewing the evidence in Haugen's favor, Brosseau's use of deadly force was a clear violation of Garner, and consequently she is not entitled to summary judgment based on qualified immunity.
102 B. Fourth Amendment Claims Against the City and Police Department
103 In addition to suing Officer Brosseau, Haugen also sued the City of Puyallup and the Puyallup Police Department. Municipalities are "persons" subject to suit under 42 U.S.C. § 1983. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Municipalities cannot be held liable under a traditional respondeat superior theory. Rather, they may be held liable only when "action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691, 98 S. Ct. 2018.
104 Haugen's complaint did not allege, and he has not argued to us on appeal, that Brosseau was acting pursuant to any preexisting policy when she shot him. Rather, he contends that the city and the police department are at fault because they failed to discipline Brosseau after the shooting. Haugen cannot, of course, argue that the municipality's later action (or inaction) caused the earlier shooting. Haugen argues instead that the city and police department should be held liable 10615 because they "ratified" Brosseau's decision to use deadly force.
105 The ratification, doctrine, asserted as a basis for municipal liability, originated in St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). There, a plurality of the Supreme Court stated that "[i]f the authorized policymaker, approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." Id. at 127, 108 S. Ct. 915. But the sentence from Praprotnik must be read in context. The Court held in Praprotnik that to establish municipal liability, a plaintiff must "prove[ ] the existence of an unconstitutional municipal policy." Id. at 128, 108 S. Ct. 915. A single decision by a municipal policymaker "may be sufficient to trigger section 1983 liability under Monell, even though the decision is not intended to govern future situations," Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir.1992) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)), but the plaintiff must show that the triggering decision was the product of a "conscious, affirmative choice" to ratify the conduct in question. Gillette, 979 F.2d at 1347. In the present case, Haugen has made no such showing.
106 Although some municipal pronouncements ratifying a subordinate's action could be tantamount to the announcement or confirmation of a policy for purposes of Monell, here there are no facts in the record that suggest that the single failure to discipline Haugen rises to the level of such a ratification. See, e.g., Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir.1989) (refusing to hold that the "failure of a police department to discipline in a specific instance is an adequate basis for municipal liability under Monell"). The City of Puyallup and the Puyallup Police Department are therefore entitled to summary judgment.
C. State Law Claims Against Brosseau
107 Haugen also sued Brosseau based on state law tort claims. Under Washington law,
108 [i]t is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death.
109 Wash. Rev.Code § 4.24.420 (2003). The district court dismissed Haugen's state law claims because, in its view, Haugen was engaged in the commission of a felony when Brosseau shot him. Washington law provides that
110 [a]ny driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.
111 Id. § 46.61.024.
112 After being shot, Haugen drove away and, for a time, refused to stop for police. He ultimately pled guilty to a felony under § 46.61.024. But, as discussed in section A.1.c., supra, there is a disputed factual question about when Brosseau shot Haugen. Construing the facts in Haugen's favor, it appears that Brosseau may have shot Haugen before be had begun to "drive his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others." Id. It therefore is not clear that he "was engaged in the commission of a felony at the time of the occurrence causing the injury" or that his felony "was a proximate cause of" his injury. Id. § 4.24.420 (emphasis added). At this stage in the proceedings, it is not clear that Brosseau will have the benefit of the complete defense provided in § 4.24.420. We therefore reverse the district court's grant of summary judgment on Haugen's state law tort claims.
Conclusion
113 For the foregoing reasons, we REVERSE the district court's grant of summary judgment on Haugen's § 1983 claim against Brosseau. We AFFIRM the district cow-t's grant of summary judgment on Haugen's § 1983 claims against the City of Puyallup and the Puyallup Police Department. We REVERSE the district court's grant of summary judgment on Haugen's state law claims against Brosseau. We REMAND for further proceedings.
114 AFFIRMED in part, REVERSED in part, and REMANDED. Costs to Haugen on his appeal relevant to Brosseau. Costs to the City of Puyallup and the Puyallup Police Department.
Notes:
1 See, e.g., Biscoe v. Arlington County, 738 F.2d 1352, 1363 (D.C.Cir.1984) (applying D.C. law); Seals v. City of Columbia, 641 So. 2d 1247, 1248 (Ala. 1994); Estate of Aten v. City of Tucson, 169 Ariz. 147, 817 P.2d 951, 955 (1991); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481, 487 (2000); Brummett v. County of Sacramento, 21 Cal. 3d 880, 148 Cal. Rptr. 361, 582 P.2d 952, 956 (1978); Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5, 8-10 (1983); City of Pinellas Park v. Brown, 604 So. 2d 1222, 1225 (Fla. 1992); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 347-48 (2001); Boyer v. State, 323 Md. 558, 594 A.2d 121, 132 (1991); Fiser v. City of Ann Arbor, 417 Mich. 461, 339 N.W.2d 413, 417 (1983) (overruled in part, Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000)); Smith v. City of West Point, 475 So. 2d 816, 818 (Miss.1985); Oberkramer v. City of Ellisville, 650 S.W.2d 286, 292 (Mo.Ct.App. 1983); Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800, 803 (1981); Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140, 1143 (1978); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547, 550 (1999); Jones v. Ahlberg, 489 N.W.2d 576, 580 (N.D.1992); Lowrimore v. Dimmitt, 310 Or. 291, 797 P.2d 1027, 1030-31 (1990); Kuzmics v. Santiago, 256 Pa.Super. 35, 389 A.2d 587, 590 (1978); Haynes v. Hamilton County, 883 S.W.2d 606, 610-11 (Tenn.1994); Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex.1992); New Jersey Police Vehicular Pursuit Policy, Att'y Gen. Guidelines (Dec.2001); Los Angeles Police Dep't Manual, ch. 555 (2003); Seattle Police Dep't Policies & Procedures § 1.141 (2003).
REINHARDT, Circuit Judge concurring:
115 I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an otherwise nondangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a highspeed chase of a nondangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect who, under Garner, may not otherwise be shot. I do not understand the out-of-circuit cases discussed in Judge Fletcher's excellent opinion and in the dissent to hold otherwise.
GOULD, Circuit Judge, dissenting:
116 I cannot accept the majority's conclusion that Haugen, a visibly disturbed felon willing to do almost anything to avoid capture, did not pose "a significant threat of death or serious physical injury" to others when he attempted a high-speed vehicular flight from police through a suburban residential neighborhood on a Sunday afternoon. Nor can I accept the majority's holding that — because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle. The majority's sweeping holding, which promises an easy escape to any felon willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits' holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others.1 The majority opinion creates a new obstacle to effective law enforcement in the western United States. It threatens the innocent to protect the guilty.
117 * Under Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the reasonableness of Officer Brosseau's conduct under the Fourth Amendment depends on (1) whether she had probable cause to believe that Haugen's fleeing the scene in his car would pose "a significant threat of death or serious physical injury" to others and (2) whether deadly force was necessary to prevent Haugen's escape. Id. at 3, 105 S. Ct. 1694. Officer Brosseau's conduct was reasonable under the Garner standard.
118 Viewing the evidence in the light most favorable to Haugen, as we must at this stage,2 Officer Brosseau had probable cause to believe that Haugen's fleeing the scene in his car would pose a significant threat of serious harm to others. Haugen was a desperate man capable of desperate measures. Haugen was a felony suspect who, when Officer Brosseau arrived on the scene, was engaged in a violent brawl with two other men.3 Haugen defied Brosseau's orders to stop; he ignored her brandishing a gun at close range; he ignored her beating his car window with the butt of her gun; he ignored her shattering his car window; he ignored her striking him in the head with the butt of her gun; he ignored her attempts to grab his keys. Haugen was behaving wildly, even suicidally (defying an officer brandishing a gun at close range), and Officer Brosseau had probable cause to believe that Haugen would do almost anything to avoid capture. See Menuel v. City of Atlanta, 25 F.3d 990, 995 (11th Cir.1994) (from the vantage of an officer confronting a dangerous suspect, "a potential arrestee who is neither physically subdued nor compliantly yielding remains capable of generating surprise, aggression, and death").4
119 As Haugen admitted in his deposition, he attempted a high-speed vehicular flight through suburban streets. Haugen admitted that he drove as fast as he could when he left the driveway, that he drove through the residential streets as fast as his car would go in third gear, and that he would have driven faster if the bullet wound had not made it difficult for him to shift gears. Haugen later pled guilty to the felony of "eluding," admitting he drove his vehicle "in a manner indicating a wanton or willful disregard for the lives or property of others." Wash. Rev.Code § 46.61.024. That Haugen, by his own admission, drove his car in a manner indicating "a wanton or willful disregard for the lives . . . of others" is powerful evidence of the reasonableness of Officer Brosseau's earlier belief that he would pose a significant threat of serious harm to others if permitted to escape.
120 A criminal suspect's fleeing from police in an automobile is inherently dangerous. The National Highway Traffic Safety Administration reports that 314 people were killed during police pursuits in 1998, the last year for which I can find a record.5 National Highway Traffic Safety Administration, Fatality Analysis Reporting System — ARF, Fatalities in Crashes Involving Law Enforcement in Pursuit 1998 (2000). Of that total, two were police officers, 198 were fleeing criminal suspects, and 114 were innocent bystanders. Id. Presumably, many more high-speed pursuits result in serious injuries.6
121 The annals of law are filled with stories of police chases with tragic ends. In City of El Centro v. United States, a driver fleeing from police flipped his van, leading to an explosion that killed him and two passengers and that injured another fourteen passengers. 922 F.2d 816, 818 (Fed. Cir.1990). In Mays v. City of E. St. Louis, Ill., a driver fleeing from police ran into a cement barrier, killing one passenger and severely injuring eight others. 123 F.3d 999, 1000 (7th Cir.1997). In Roach v. City of Fredericktown, a driver fleeing from police lost control of his car and collided with an oncoming car, killing himself and seriously injuring others. 882 F.2d 294, 295 (8th Cir.1989). In Helseth v. Burch, a driver fleeing from police ran a red light and collided with a pickup truck, killing the truck's passenger, rendering the truck's driver a quadripelegic, and seriously, injuring three children in his own car. 258 F.3d 867, 869 (8th Cir.2001) (en banc). In Mason v. Bitton, a driver fleeing from police lost control of his car, crossed a median, and collided with an oncoming car, killing the occupants of both cars. 85 Wash.2d 321, 534 P.2d 1360, 1361-62 (1975). These judicial decisions tell the tragic stories of only a few deadly police chases. There have been thousands more in the past. And there will be thousands more in the future, particularly if the majority's view prevails, deterring law enforcement from protecting the public.
122 I do not suggest that police marksmen may fire at will upon any felon fleeing in an automobile, merely because the felon is leaving the scene of a crime or because the felon has violated traffic laws.7 Rather, I suggest that where police have probable cause to believe a fleeing felon will drive with willful disregard for the lives of others, the Supreme Court's Garner decision permits officers to use deadly force when necessary to protect the public. Officer Brosseau plainly had such probable cause here.
123 Officer Brosseau was concerned not only with the real possibility that Haugen might cause serious injury or even a fatality if she permitted him to speed through the neighborhood in his car. Brosseau also was concerned with the imminent possibility that Haugen might injure someone on the scene. Photographs in the record show that Haugen "peeled out" (he accelerated, leaving visible skid marks) of a driveway blocked on three sides by houses and a garage. Directly in Haugen's path were parked vehicles containing four persons, including a young child. Only by driving through this narrow passageway,8 around the corner of a neighbor's house, and across a neighbor's lawn (a maneuver Haugen admitted he executed while accelerating "as quickly as [he] could") did Haugen avoid the cars. Brosseau was right to worry that Haugen, if permitted to speed through this obstacle course, would seriously injure the innocent bystanders or one of the police officers Brosseau believed were running toward the scene on foot to assist her.
124 The first prong of the Supreme Court's Garner test is met. Not only was Haugen fleeing in a 3,000 pound vehicle, but also he was behaving in a manner that suggested he would drive with reckless disregard for the lives of others (as he subsequently did). Presented with a desperate man taking desperate measures in a deadly machine, Officer Brosseau reasonably concluded that Haugen posed a significant threat of serious harm to the community. See United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987) ("It is indisputed that an automobile can inflict deadly force on a person and that it can be used as a deadly weapon.") (per curiam).
125 The second prong of the Garner test also is met, because deadly force was necessary to prevent Haugen from escaping. Deadly force is not necessary where there exists a less drastic alternative that is "reasonably likely to lead to apprehension before the suspect can cause further harm." Forrett v. Richardson 112 F.3d 416, 420 (9th Cir.1997). Here, Officer Brosseau attempted several less drastic alternative means of subduing Haugen before shooting him. She called several other officers and a police dog to scour the neighborhood for him. She ordered him to freeze as he ran to his car. She chased him. She ordered him to open the door and to get out of his car. She brandished her gun — effectively warning him that he must relent or be shot. She smashed his driver's side window. She beat his head with the butt of her gun. She tried to take his keys. Only after Officer Brosseau had attempted several less drastic alternatives — alternatives that failed to subdue Haugen — did she resort to the extreme step of shooting Haugen.
126 Haugen urges that a less drastic alternative would have been for Officer Brosseau to permit him to flee in his car. Haugen urges that officers would have been able to capture him another time. However, Haugen fails to recognize the costs to society of allowing felons to flee without constraint. And Haugen fails to explain by what method those officers would have subdued him "before [he could] cause further harm," as our Forrett decision (and common sense) requires. 112 F.3d at 420 (emphasis added). Haugen's reckless departure threatened the safety of people on the scene. His racing through the streets threatened the safety of people in the neighborhood. Research indicates that vehicular flights from police become dangerous very quickly. Fifty percent of all collisions occur in the first two minutes of police pursuit, and more than 70 percent of all collisions occur before the sixth minute of the pursuit. G.P. Alpert, U.S. Department of Justice, National Institute of Justice, Pursuit Management Task Force Report (1998). Officer Brosseau correctly decided that waiting was not an option under the circumstances.9
127 Even if permitting Haugen to race away in his automobile were a reasonable alternative, we cannot properly fault Officer Brosseau for not thinking of it in the heat of the moment. Judges must allow "for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). We must judge Officer Brosseau's conduct from the perspective of a reasonable officer on the scene, not from the perspective of a judge in his or her chambers. Id. The majority effectively ignores this command from the Supreme Court, measuring Officer Brosseau's conduct not against the standard of a reasonable officer on the scene, but against the standard of its own inexpert judgment as to what Officer Brosseau should have done under the circumstances.
128 In sum, I would hold that Officer Brosseau had probable cause to believe that Haugen's leading police on a reckless highspeed car chase through a residential neighborhood would pose a significant threat of serious harm to the community and that the use of deadly force was necessary to prevent his escape. I would hold that Officer Brosseau's shooting of Haugen did not violate Haugen's Fourth Amendment rights.
129 The majority's contrary holding is objectionable not only because it flouts the Supreme Court's Garner standard, but also because it creates a circuit split. The Sixth, Eighth, and Eleventh Circuits all have held, as I would hold, that officers are justified in using deadly force when a fleeing felon appears likely to drive with willful disregard for the lives of others. See Scott v. Clay County, 205 F.3d 867, 877 (6th Cir.2000) (holding that police reasonably shot a felon fleeing in an automobile when his reckless driving posed an immediate threat to the safety of officers and innocent civilians); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir.1992) (holding that police reasonably shot a misdemeanant fleeing in an automobile when he posed a threat to officers at a police roadblock and appeared likely to "do almost anything to avoid capture"); Cole v. Bone, 993 F.2d 1328, 1330-33 (8th Cir.1993) (holding that police reasonably shot a criminal fleeing in a truck when he posed a threat to travelers driving on a crowded interstate highway); Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir.2002) (holding that police reasonably shot a felon fleeing in an automobile when he appeared likely to continue using his vehicle aggressively during a police pursuit).
130 Contrary to the holdings of every circuit to consider the issue, the majority holds that an officer violates a fleeing felon's Fourth Amendment rights by using deadly force to prevent a dangerous vehicular flight because "officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase." Supra at 870.10 The majority believes that police officers should permit felons to speed away unpursued rather than attempt to stop them. See id. at 869 ("[Officers] could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely."); id. at 870 ("[A]n officer must sometimes forego or discontinue deadly force and allow a suspect to escape."). The majority slights the important law enforcement interests in pursuing fleeing felons. See, e.g., Donovan v. City of Milwaukee, 17 F.3d 944, 951 (7th Cir.1994) ("Police officers may, and ought to, pursue fleeing suspects, and where those suspects present a threat of serious physical harm, either to the officer[s] or others, it is not constitutionally unreasonable to prevent escape by using deadly force.") (emphasis added). The majority neglects the fact that if police are forbidden to pursue, then many more suspects will flee — and successful flights not only will reduce the number of crimes solved but also will create serious risks for passengers and bystanders. See Mays v. City of E. St. Louis, 123 F.3d 999, 1003 (7th Cir.1997). Moreover, the majority errs by putting the onus on police to end the pursuit by letting the felon escape, rather than on the fleeing felon, who at all times has the power to avoid injury to himself and others by halting as the law requires. See id. at 1004 (holding that a police officer's pursuit of a fleeing felon in an automobile played a "causal role" in an ensuing wreck, "but not the kind of cause the law recognizes as culpable. . . . [A] criminal's effort to shift the blame [to police]. . . is not one that any legal system can accept.").
131 The majority attempts to justify its departure from precedent by reasoning that Officer Brosseau's fellow police officers might have decided to let Haugen escape in his jeep unpursued and that, for this reason alone, Officer Brosseau did not have probable cause to believe that Haugen's vehicular flight would pose a danger to others. There are several problems with the majority's reasoning.
132 First, the majority implies, contrary to the record evidence, that Haugen would have driven safely and carefully away from the scene if he had not been followed by police squad cars. But it is unrealistic to conclude that Haugen, a deranged and defiant felon, would suddenly have been transformed into a model citizen and careful driver the moment he drove away from the scene and did not hear police sirens in pursuit. And even if Officer Brosseau had believed that her fellow officers would not pursue Haugen's vehicle, Brosseau still would have had probable cause to believe that Haugen would speed away from the scene with willful and wanton disregard for others' safety. Indeed, even before the police squad cars gave chase, Haugen was, by his own admission, "standing on the gas" in the driveway, accelerating "as quickly as [he] could," within a "small, tight space," a fact that confirms the reasonableness of Officer Brosseau's earlier concern about others' safety.
133 Second, the majority implies (with no basis in the record) that Washington law or Puyallup Police Department policy prohibited (or, at least, discouraged) Officer Brosseau's fellow officers from pursuing Haugen in their squad cars. Although police officers in Washington may have to compensate a person who is injured by police officers' negligent conduct while pursuing a fleeing felon, Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360, 1363 (1975), Washington law does not prohibit police from pursuing a fleeing felon in a vehicle. So the majority errs by effectively holding that Officer Brosseau was required to assume that her fellow officers would not chase Haugen in their squad cars and that Haugen would drive away carefully, safely, and unpursued.
134 Third, Officer Brosseau's fellow officers in fact chased Haugen in their squad cars, so Officer Brosseau was correct in assuming that a police pursuit would occur. Officer Brosseau was entitled to consider the potential danger of that police pursuit in assessing the danger Haugen posed to others.
135 The majority apparently prefers, as a matter of policy, that police departments discourage their officers from pursuing felons in automobiles. If the majority had its way in setting law enforcement policy, no police officer ever would pursue a felon at high speed; the police would surrender, rather than the felon, who would be given a free pass to an easy escape. In my view, the majority errs by allowing its policy preference to corrupt its analysis of the danger Haugen posed to the community by fleeing in a vehicle in a deranged mental state.
136 Having created a circuit split by misapplying Garner, the majority downplays its departure from our sister circuits' decisions by urging that those decisions approved of deadly force in circumstances very different from those presented here. Although every case presents unique facts, the facts in our sister circuits' decisions are similar to the facts here in important respects. In the Sixth, Eighth, and Eleventh Circuit cases, as in this case, a suspect was fleeing from police in an automobile, a machine that can be extremely dangerous when not operated with great care and due regard for the public safety. See Scott, 205 F.3d at 871-72; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330; Pace, 283 F.3d at 1277. In those cases, as in this case, the felon refused orders to halt. See Scott, 205 F.3d at 871; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330; Pace, 283 F.3d at 1277. In those cases, as in this case, the felon was behaving in a desperate and unstable manner. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330-31; Pace, 283 F.3d at 1277-78. In those cases, as in this case, the felon appeared likely to take extreme steps to avoid capture. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1331; Pace, 283 F.3d at 1277-78. Most importantly, in those cases, as in this case, the felon appeared likely to drive with willful disregard for the lives of others. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330-31; Pace, 283 F.3d at 1277-78.11
137 The majority attempts to distinguish our sister circuits' holdings on the ground that police in those cases used deadly force to end a dangerous high-speed flight, rather than to prevent a dangerous high-speed flight from commencing. But our sister circuits did not, as the majority implies, require that police officers wait until after a suspect has endangered the lives of others before using deadly force. Nor could they have so held. The Supreme Court's Garner decision requires courts to determine whether officers have probable cause to believe a suspect will pose a threat of serious physical harm in the future, not whether the suspect posed such a danger in the past. See Garner, 471 U.S. at 11-12, 105 S. Ct. 1694.
138 At the time Officer Brosseau shot Haugen, Haugen's vehicle had not yet begun to move. But an objective observer would have reasonably concluded that Haugen was embarking on a desperate, potentially deadly, high-speed vehicular flight through residential neighborhoods. That Haugen was only beginning to execute his plan of driving with willful and wanton disregard for the lives of the innocent does not mean, as the majority suggests, that Haugen did not pose a"significant threat of death or serious physical injury" to others. Nothing requires a police officer, like some modern-day Epimetheus, to disregard prospective danger and attend only to dangers that have passed. It was good that Brosseau acted when she did.
139 Contrary to the majority's suggestion, neither the Seventh Circuit's Donovan decision nor the Eleventh Circuit's Vaughan v. Cox decision lends support to the majority's novel holding. Both Donovan and Vaughan are consistent with my view-compelled by the Supreme Court's Garner decision that police can use deadly force when necessary to stop a fleeing felon who appears likely to drive with willful disregard for the lives of others. In Donovan, the Seventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when "there [was] no evidence that [the suspect] imperiled anyone (except himself and his willing passenger). . . [by] driving his motorcycle through empty city streets in the wee hours of the morning." 17 F.3d at 951. Here, by contrast, Haugen's own testimony-describing his attempted high-speed flight through a suburban residential neighborhood in his jeep on a Sunday afternoon-shows that Haugen's conduct would have imperiled many people, both on the scene and in the community, if Officer Brosseau had not reasonably intervened.
140 In Vaughan the Eleventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when police shot without warning a fleeing suspect. 264 F.3d 1027, 1031, 1031 n. 2 (11th Cir.2001) (vacated by 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002), reinstated and supplemented on remand at 316 F.3d 1210 (11th Cir.2003)). Here, by contrast, it is undisputed that Officer Brosseau effectively warned Haugen that he would be shot if he did not submit to arrest.
141 Fourth Amendment analysis requires a delicate balancing of individual and societal interests, Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), and an individual's interest in his or her life is of unmatched importance. But when a felon threatens innocent lives in a base attempt to escape responsibility for his or her crimes, police officers do not act unreasonably in using deadly force to protect the community. I would hold that Officer Brosseau did not violate Haugen's Fourth Amendment rights and that the district court properly granted summary judgment in her favor.
142 * * * * * *
143 With perhaps the purpose, but certainly not the effect, of obscuring its departure from the Supreme Court's Garner standard and our sister circuits' precedents, the majority deploys an array of rhetorical devices that, individually and collectively, serve only to accentuate the weaknesses of the majority's rationale.
144 First, the majority implies that its holding is consistent with those of our sister circuits. But no other court has ever come close to holding, as the majority holds today, that police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle. See Scott, 205 F.3d at 877 (holding that police reasonably used deadly force to stop a suspect fleeing in a vehicle); Smith, 954 F.2d at 347-48 (same); Cole, 993 F.2d at 1330-33 (same); Pace, 283 F.3d at 1281 (same). Second, the majority implies that police officers' decision to pursue Haugen in their police cruisers was of dubious legality under Washington law. But it was not; such chases are permissible, though they must be conducted with due care. See Mason, 534 P.2d at 1363. Third, the majority states that we cannot properly take judicial notice of the official government statistics I cited to emphasize the dangerousness of high-speed flights by felons from police. But this is incorrect. See, e.g., Chastleton Corp. v. Sinclair, 264 U.S. 543, 548, 44 S. Ct. 405, 68 L. Ed. 841 (1924) (Holmes, J.) ("[T]he Court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law. . . ."). Fourth, the majority states that the Supreme Court in Garner rejected "[the dissent's] kind of general statistical approach." See supra at 870. But I do not use any "general statistical approach," and, in any event, the Supreme Court used statistics in Garner in precisely the way I use them here. See 471 U.S. at 21, 105 S. Ct. 1694. Fifth, the majority states that I do not view the facts in the light most favorable to Haugen. But I have relied only on facts Haugen does not dispute, facts that compel the conclusion that Haugen's fleeing in his vehicle would have posed a significant threat of death or serious physical injury to others.
145 The majority's artful phrasing and overwrought lucubrations should not and cannot obscure the majority's departure from the Supreme Court's and our sister circuits' law. Acting somewhat as a police commissar for the western states and territories in our jurisdiction, rather than as a constitutional court, the majority imposes serious and unworkable restrictions on police officers' efforts to bring criminals to justice and to protect the community. I cannot join the majority in that effort.
II
146 The majority's holding that Officer Brosseau violated Haugen's rights is wrong. But it is not as wrong as the majority's holding that those rights were "clearly established" at the time of the shooting. It should be undeniable that Officer Brosseau did not violate Haugen's 49 clearly established" rights and so was qualifiedly immune from suit.
147 Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). If "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," then qualified immunity does not apply. Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). But if, on the other hand, "officers of reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley, 475 U.S. at 341, 106 S. Ct. 1092.
148 Officer Brosseau was not plainly incompetent.12 Nor did she knowingly violate the law. Police officers of reasonable competence could disagree whether deadly force was justified.13 In fact, federal appeals courts of reasonable competence do disagree on the issue.14 And judges, unlike police officers, have the luxury of studying the constitutional issues in the calm of their chambers, with the benefit of lawyers' briefing, and after healing oral arguments. See Ganwich v. Knapp, 319 F.3d 1115, 1125 (9th Cir.2003) ("[J]udges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor's precision.").
149 The majority holds Officer Brosseau to an unreasonable standard. Officer Brosseau should be commended, not condemned, for acting with courage and decisiveness to protect the public from a dangerous felon in a deranged mental state embarking on a potentially deadly flight from police. I respectfully dissent.15
Notes:
1 As I explain below, the majority creates a circuit split, departing from the holdings of the Sixth, Eighth, and Eleventh Circuits
2 This is because the district court granted summary judgment to Officer Brosseau
3 In an attempt to portray Haugen as appearing peaceful, the majority states that, "[b]yall accounts, . . . Haugen was on the receiving end of the violence . . . . [and] the `brawl' . . . was finished when Brosseau arrived." See supra at 872 (emphasis added). The majority omits Haugen's account in his deposition, in which he admitted to engaging in acts of violence. Haugen stated that he and his adversary "got into a wrestling thing." Haugen then stated that, just after Officer Brosseau arrived on the scene, he "elbowed Atwood and went for the keys in his truck." Haugen continued, "[T]he police pulled up. [Atwood and Tamburello] were distracted. I ellbowed [Atwood] the rest of the way out of the car and got away from him." In any event, it does not matter whether Haugen or his adversaries were the initial aggressors in their combat. What matters is Officer Brosseau's "contemporaneous knowledge of the facts," see Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001), and Officer Brosseau knew only that Haugen was engaged in a violent brawl when she arrived an the scene. It is undisputed that Officer Brosseau received a radio dispatch stating that there was a "fight in progress" and that "[t]wo men were fighting on the ground." Officer Brosseau was entitled to consider the fact that Haugen had been fighting as one factor in assessing Haugen's potential dangerousness, and the majority errs by dismissing it.
4 The majority states that Officer Brosseau was not motivated by a desire to protect the community from Haugen's likely erratic driving. This is false. In Officer Brosseau's taperecorded police department interview, Brosseau stated that she shot Haugen "to protect my fellow officersand the community from an eminent [sic] danger." (emphasis added). She then stated that she was concerned for "pedestrians and officers and residents in the area." (emphasis added). In her written statement, Officer Brosseau stated, During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him. (emphasis added). Officer Brosseau's expressed concerns were to protect the community, the residents in the area, and all those around Haugen. She did not, as the majority implies, limit her concern to people in the immediate area.
5 Though these statistics demonstrate that felons fleeing from police in automobiles put the public at serious risk of death or injury, the statistics almost certainly understate the extent of the danger, due to the lack of a mandatory reporting system. John Hill,High-Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, Law Enforcement Bulletin 14 (July 2002) ("Even conservative estimates by various researchers recalculate the actual number of fatalities between 400 to 500 deaths per year.").
6 The majority faults me for citing these official government statistics, arguing that the Supreme Court inGarner rejected "this kind of general statistical approach." Supra at 870. The majority misrepresents my analysis. I do not, as the majority says, rely solely on statistics to support my view that Officer Brosseau was entitled to use deadly force. Rather, I rely on the objective circumstances — most notably Haugen's wild behavior immediately before he sped away in his jeep — that demonstrated to observers that Haugen was about to drive with willful disregard for the lives of others. My analysis does not depend on the government statistics, which I cite merely to emphasize the reasonableness of Officer Brosseau's decision to use deadly force and the important consequences to our society if Officer Brosseau's appropriate conduct is condemned. Moreover, my use of statistics is consistent with the Supreme Court's use of statistics in Garner. See 471 U.S. at 21, 105 S. Ct. 1694 (relying on a Bureau of Justice Statistics report to support the conclusion that "burglaries only rarely involve physical violence.").
7 The majority thus mischaracterizes my analysis as "an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle."Supra at 870. Contrary to the majority's mischaracterization, I would hold that deadly force is reasonable only when it appears that a fleeing felon will drive with willful disregard for the lives of others. Here, Haugen's wild and defiant actions (which included disobeying a police officer brandishing a gun at close range) prior to fleeing in his vehicle plainly indicated that he would take any steps necessary to avoid capture, including driving with willful disregard for the lives of others, which Haugen — by his own admission — subsequently did. As Officer Brosseau stated, During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him.
8 Haugen in his deposition described this passageway as a "small, tight space."
9 The author of the majority opinion at oral argument asked defense counsel whether Officer Brosseau should have shot Haugen's tires to disable his vehicle. Though the majority opinion does not now rely on this as a possible alternative to the use of deadly force, it is perhaps helpful to explain why shooting Haugen's tires likely would not have been an appropriate or effective tactic to end the threat Haugen posed. Shooting Haugen's tires may not have disabled his car. Haugen still could have escaped — and endangered others — by driving with a flattened tire or two. More importantly, Officer Brosseau would have endangered herself and others had she shot at Haugen's tires. Police ammunition is designed to disable human beings, not to disable automobiles. Had Officer Brosseau fired at Haugen's tires at close range, her bullets might have ricocheted, killing or injuring her or an innocent bystander. Even if Officer Brosseau's bullets penetrated a tire, the bullets would not necessarily have come harmlessly to rest. The bullets could have continued their trajectory, ricocheting off the ground or automobile, killing or injuring the innocentSee Rick Parent, When Police Shoot, Police Magazine, Oct. 2000 ("Unlike the scenes depicted by `Hollywood,' the `shooting out of a tire' can be a precarious and dangerous event."). Officer Brosseau was wise not to shoot Haugen's tires. This "alternative" was no alternative at all.
10 More candid than the majority opinion, Judge Reinhardt's separate concurring opinion restates the majority's holding in explicit terms. The concurring opinion states, "I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an other-wise non dangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a high-speed chase of a non dangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect. . . ."Supra at 876. The majority opinion never disavows Judge Reinhardt's separately stated view, which, in any event, animates the majority opinion's analysis.
11 It is worth noting that the suspects inScott, Smith, Cole, and Pace were suspected of crimes less serious and less dangerous than the burglary and battery of which Haugen was suspected. See Scott, 205 F.3d at 871 (suspect ignored a traffic sign); Smith, 954 F.2d at 344 (suspect ran a stop sign); Cole, 993 F.2d at 1330 (suspect drove through toll booth without paying); Pace, 283 F.3d at 1276 (suspect driving at night without headlights).
12 Rather, I would say Officer Brosseau is very competent
13 Indeed, the Puyallup Police Department Firearms Review Board concluded, after an investigation, that Officer Brosseau's actions did not violate Washington law or police department policy
14 The majority does not disagree only with my dissenting views. The majority also disagrees with the considered wisdom of the Sixth, Eighth, and Eleventh Circuits, which have held there was no Fourth Amendment violation in circumstances similar to those presented hereSee Scott, 205 F.3d at 877; Cole, 993 F.2d at 1330-33; Pace, 283 F.3d at 1281.
15 Despite my dissent, I do not disagree with Parts II.B. and II.C. of the majority opinion, affirming the district court's summary judgment in favor of the City of Puyallup and the Puyallup Police Department, and reversing the district court's dismissal of Haugen's state law claims. I disagree with Part II.A., the majority's Fourth Amendment analysis | 04-18-2012 | [
"339 F.3d 857 Kenneth J. HAUGEN, Plaintiff-Appellant,v.Rochelle BROSSEAU, Puyallup Police Department; The City of Puyallup, Defendants-Appellees. No. 01-35954. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2003. Filed August 4, 2003. COPYRIGHT MATERIAL OMITTED Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant. Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, WA, for the defendants-appellees. Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-01-05018-RJB. Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD. OPINION WILLIAM W. FLETCHER, Circuit Judge. 1 On February 21, 1999, Officer Rochelle Brosseau of the Puyallup, Washington, Police Department shot Kenneth Haugen in the back as he tried to flee from police in his vehicle.",
"Haugen filed a § 1983 suit in district court alleging a violation of his constitutional rights, and the court granted summary judgment to Brosseau. Construing the evidence in the light most favorable to Haugen, we inquire whether Brosseau's use of deadly force violated the Fourth Amendment and, if it did, whether she is entitled to qualified immunity. We conclude that the evidence, so construed, shows that Brosseau's conduct violated the Fourth Amendment, and, further, that her conduct violated clearly established law governing the use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985).",
"We therefore reverse the district court's grant of summary judgment. I. Background 2 Kenneth Haugen and Glen Tamburello were in business together selling drugs and occasionally fixing cars. At some point, their relationship soured, and Haugen decided to dissolve the partnership. On February 20, 1999, he took some of his tools from Tamburello's shop. Tamburello wanted the tools back and wanted retribution. He went to the police station, and, in an interview with Officer Rochelle Brosseau, reported that Haugen had burglarized his shop. Tamburello also contacted the Riddles, neighbors of Haugen's mother, and requested that they call him should they see Haugen at his mother's house.",
"3 Haugen, his girlfriend Deanna Nocera, and Nocera's daughter went to Haugen's mother's residence the night of February 20, where they did some laundry and spent the night. The next morning, Haugen began to spray-paint his 1984 Jeep Cherokee in his mother's driveway. He had a warrant out for his arrest and apparently thought he might evade detection driving a yellow rather than a white Jeep. It was a windy morning, and the Riddles complained to Haugen that the spray paint was blowing into their yard. When Haugen refused to stop, the Riddles called Tamburello.",
"Tamburello drove with Matt Atwood to Haugen's mother's house where they accosted Haugen. Haugen began to run away, but Tamburello caught him, threw him to the ground, and began to beat him up. Haugen and Nocera begged Tamburello to stop, and, after being persuaded by several punches, Haugen agreed to give the tools back. Tamburello and Atwood then forcibly led Haugen into the pickup and planned to drive to a storage facility where Haugen had stashed the tools, but Irene Riddle, having seen the brouhaha outside, had already dialed 911. 4 After her interview with Tamburello on February 20th, Officer Brosseau had learned that there was a felony no-bail warrant out for Haugen's arrest based on drug and other offenses. The next morning, while in the midst of a traffic stop nearby, Brosseau heard the report of the ruckus at Haugen's mother's house. She responded quickly, and when she arrived Tamburello and Atwood were in the process of getting Haugen into the pickup.",
"Haugen took advantage of the distraction caused by Brosseau's arrival and broke away from his would-be captors. He ran up the driveway, past his mother's house, and into the backyard. Brosseau gave chase for only a few steps and then called for back-up, including a K-9 unit to help locate Haugen. Over the next half hour or so, Brosseau and other officers interviewed the witnesses still at the scene and set up a containment perimeter for the search. To avoid interfering with the K-9's efforts to locate Haugen by scent, the officers instructed Tamburello and Atwood to remain in Tamburello's pickup and instructed Nocera and her daughter to remain in her Honda.",
"The pickup was parked in the street in front of the driveway. The Honda was parked in the driveway in front of the Jeep. The Jeep was in the driveway facing the Honda and the street and was angled somewhat to the left. 5 Haugen, meanwhile, hid in various bushes and other locations around the neighborhood as he tried to watch what was happening at his mother's house. Apparently seeking help, Haugen knocked on the back door of Margaret Rounds, a neighbor who lived down the street. No one answered, so Haugen left. Rounds was at home and was aware of the situation outside because she had been listening to a police scanner, but she had no inclination to help Haugen.",
"Instead, she called police and said that there was a man in her backyard. Brosseau and the two other officers on foot, Officers Subido and Pashon (with the K 9), ran to Rounds's backyard. Subido told Brosseau to circle around the front, and as Brosseau rounded the house, she saw Haugen about fifty feet ahead of her running toward his Jeep. 6 Haugen got into the Jeep and tried to start it. Brosseau ran to the Jeep with her handgun drawn and ordered him to stop. As Haugen fumbled with his keys, Brosseau hit the driver's side window several times with her handgun, and, on the third or fourth try, she broke the window.",
"Brosseau had mace and a baton but did not use them. Instead, she tried to reach in the car to grab the keys, but just after she broke through the window, Haugen succeeded in starting the Jeep. Either before Haugen pulled away, or just after he started to do so (the evidence is conflicting on this point), Brosseau shot him in the back. From Brosseau's position when she shot, Haugen was in front of her, and beyond Haugen were Nocera, Nocera's daughter, Tamburello, and Atwood. Brosseau said that she was \"aware of the background exposure,\" but she nonetheless believed she had a safe shot because she thought the bullet would be stopped by the Jeep's engine block before reaching the bystanders. Because Haugen did not stop, Brosseau believed she had missed him, but Brosseau did not take a second shot because she thought the risk became too great as he began to drive away.",
"7 The bullet entered Haugen's back near the left shoulder blade and lodged in his chest. Despite the wound, Haugen managed, in his words, to \"stand on the gas\" and to drive out of the driveway, across the neighbor's yard, and onto the street. Photographs in the record show tire tracks on the driveway due to displacement of gravel. After Haugen escaped, some of the officers gave chase. Haugen's injury made it difficult for him to drive. Once he realized he had been shot, he used one hand to hold the wound and the other to drive. According to Haugen, he never got the Jeep past third gear and never drove faster than forty-five miles per hour.",
"Before long, Haugen had difficulty breathing and pulled over to the side of the road, where he passed out. He was apprehended and taken to the hospital. 8 The precise circumstances of the shooting are disputed. In his deposition, Haugen testified that he believed the gun may have discharged accidentally while Brosseau was reaching through the driver's window grappling with him. Brosseau, on the other hand, says she shot Haugen intentionally.",
"According to Brosseau, she stepped back and away from the driver's window once the Jeep started moving and fired one shot through the rear side window on the driver's side. 9 When parties dispute the facts, we typically accept the non-moving party's version when ruling on a summary judgment motion. In this case, however, we accept Brosseau's statement that she shot Haugen intentionally. No gun shot residue was found on Haugen's clothes, and the forensic scientist determined that the bullet hit another object before it struck Haugen. Most tellingly, photos of Haugen's Jeep show a bullet hole in the rear side window. When asked about the bullet hole in the window, Haugen responded: \"That's something I can't explain.\" The parties do not dispute that only one shot was fired.",
"Because the evidence unmistakably indicates that Brosseau shot Haugen through the rear side window, we accept Brosseau's statement that she intentionally shot Haugen through that window rather than Haugen's speculation that the gun discharged accidentally inside the Jeep. 10 Haugen recovered from the gunshot and filed suit in district court under 42 U.S.C. § 1983 claiming that Brosseau, the Puyallup Police Department, and the City of Puyallup deprived him of his Fourth Amendment rights.",
"He also alleged causes of action based on Washington tort law. The defendants moved for summary judgment, and the district court granted their motion. It held that, even if the shooting constituted excessive force under the Fourth Amendment, Brosseau had not violated a clearly established right and was therefore protected by qualified immunity. The district court also held that Haugen had not pointed to any official practice that led to a constitutional violation, and so he could not pursue a suit against the police department or the City of Puyallup. Finally, the court held that Haugen could not pursue state tort claims because his injury occurred during the commission of a felony. 11 Haugen appealed.",
"We review a grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). II. Discussion A. Fourth Amendment Claim Against Brosseau 12 Officer Brosseau argues that she is entitled to qualified immunity from Haugen's Fourth Amendment claim. Following the Supreme Court's ruling in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), we undertake a two-step analysis when a defendant asserts qualified immunity in a motion for summary judgment. We first face \"this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?\" Id. at 201, 121 S. Ct. 2151.",
"If we determine that a constitutional right has been violated, we then move to the second step and \"ask whether the right was clearly established\" such that \"it would be clear to a reasonable officer that [her] conduct was unlawful in the situation [she] confronted.\" Id. at 201-02, 121 S. Ct. 2151. 1. Fourth Amendment Right 13 The Fourth Amendment guarantees the \"right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\" The Supreme Court has held that the Fourth Amendment prohibits the use of excessive force by police in the course of apprehending suspected criminals. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).",
"In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Supreme Court set forth the specific constitutional rule governing when police officers may use deadly force: 14 The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.",
"A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.... 15 ... Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. 16 Id.",
"at 11-12, 105 S. Ct. 1694. Under Garner, deadly force cannot be justified based merely on a slight threat. An officer may not use deadly force \"unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.\" Id. at 3, 105 S. Ct. 1694. 17 The application of Garner is clear in many cases. Where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.",
"See, e.g., Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir.2002) (holding that deadly force was justified where a suspect violently resisted arrest, physically attacked the officer, and grabbed the officer's gun); Reynolds v. County of San Diego, 84 F.3d 1162, 1168 (9th Cir.1996) (holding that deadly force was reasonable where a suspect, who had been behaving erratically, swung a knife at an officer); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) (suggesting that the use of deadly force is reasonable where a suspect points a gun at officers); Garcia v. United States, 826 F.2d 806, 812 (9th Cir.1987) (holding that deadly force was reasonable where the decedent attacked an officer with a rock and stick).",
"18 On the other hand, the mere fact that a suspect possesses a weapon does not justify deadly force. See, e.g., Harris v. Roderick, 126 F.3d 1189, 1202 (9th Cir.1997) (holding, in the Ruby Ridge civil case, that the FBI's directive to kill any armed adult male was constitutionally unreasonable even though a United States Marshal had already been shot and killed by one of the males); Curnow v. Ridgecrest Police, 952 F.2d 321, 324-25 (9th Cir.1991) (holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot); Ting v. United States, 927 F.2d 1504, 1508-11 (9th Cir.1991) (holding that deadly force was unreasonable where a suspect had dropped his gun). 19 In some circumstances, deadly force may be justified based on the nature of the crime committed by the fleeing suspect. See, e.g., Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997) (holding that deadly force was reasonable where a fleeing suspect had shot a victim in the course of a burglary). But the prior commission of even a violent crime does not always justify deadly force. See Harris, 126 F.3d at 1203 (\"The fact that [the suspect] had committed a violent crime in the immediate past is an important factor but it is not, without more, a justification for killing him on sight.",
"\"); Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.1992) (holding that an officer's second use of deadly force was unreasonable even though the suspect had violently assaulted the officer a few minutes before; by the time of the second use of deadly force, the suspect was advancing toward the officer but was wounded and unarmed). 20 The parties dispute whether, under Garner, Officer Brosseau's use of deadly force was reasonable in the circumstances of this case. In a five-page type-written statement and in a lengthy tape-recorded police department interview, Brosseau described the episode and gave her reasons for using deadly force.",
"First, Brosseau stated that, at the time she shot Haugen, she knew that he had a felony no-bail warrant outstanding for drug-related charges, and she had probable cause to believe that he had committed a burglary. Second, Brosseau stated that she saw Haugen reach below the seat of the Jeep, and that she thought he might be reaching for a weapon. Third, Brosseau stated that she believed Haugen would injure officers or other people in the area by fleeing in the Jeep.",
"She said that he \"was driving in an erratic manner,\" and that she shot him to prevent possible injury to others. We analyze Brosseau's stated reasons in turn. 21 a. Haugen's Prior Crimes 22 Brosseau stated that she knew of the warrant for Haugen's arrest and that she believed he had committed a burglary. Under Garner, the fact that Brosseau believed Haugen had committed drug crimes and a burglary is not sufficient to justify deadly force. In many deadly force cases, the plaintiff will have committed one or more crimes, but Garner and our circuit cases make clear that the mere commission of prior crimes does not justify the use of deadly force. In Garner itself, the fleeing suspect was a burglar. See 471 U.S. at 3-4, 105 S. Ct. 1694. In Ting, the suspect was part of a major narcotics organization. See 927 F.2d at 1507-08. In Curnow, officers believed that the suspect had assaulted a woman. See 952 F.2d at 323.",
"In Andaya, the suspect had just violently assaulted the officer. See 958 F.2d at 883-84. In Harris, the suspect had fired shots into the woods and may even have been the man who killed a United States Marshal. See 126 F.3d at 1193. In none of these cases, including Garner, did the suspect's crime justify the use of deadly force. 23 Here, Brosseau had reason to believe that Haugen had committed drug crimes and burglary. Drug crimes and burglary are serious offenses, but under Garner the critical question is whether the officer has \"probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm.\" 471 U.S. at 11, 105 S. Ct. 1694. Brosseau had no such probable cause. 24 b. Haugen's Potential Weapon 25 Officer Brosseau said she believed that Haugen might have a weapon in the car.",
"When Haugen was running toward the Jeep, Brosseau said that she thought he might be running for a weapon since he would not be running simply to hide there. When she first approached the Jeep, she said that he \"reached down to an area on the floorboard in the middle of the front seat\" and that she \"thought he was reaching for a weapon.\" Once she broke the window, however, Brosseau saw that he had only keys in his hands. But moments later, just as he started the car, Brosseau said Haugen \"dived forward as if to grab something on the floorboard again.\"",
"Brosseau stated that she feared again that he might have a weapon, and that she therefore stepped back and away from the driver's window. 26 Brosseau admitted that at the time she shot Haugen, she was not worried that he would use any weapon against her. She had stepped back and away from him, and had positioned herself behind him, so that even if Haugen had had a gun he would not have had a clear shot. She said, however, that she feared if Haugen had a gun he might use it on some officers who might have approached the front of his car, or that he might use it against Tamburello or Atwood, \"who he had cause to be unhappy with.\" 27 The factual predicate of Brosseau's stated reason is that Haugen dove forward as he started the car. But several other witnesses gave statements about what Haugen was doing in the car. None of these witnesses mentioned that Haugen dove forward, and none has offered any support for Brosseau's assertion that Haugen looked as if he might have been reaching for a weapon. Nor has Brosseau offered any other evidence to support her belief that Haugen might have had a gun.",
"She did not see a gun in the car, and she had not received any reports that he might have one, or indeed that he had ever had one. Under Ninth Circuit precedent, the mere presence of a weapon does not justify the use of deadly force, see Harris, 126 F.3d at 1202; Curnow, 952 F.2d at 324-25; Ting, 927 F.2d at 1508-11, let alone the potential presence of a weapon. 28 \"[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.\" Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001). Movements by a suspect are not enough to justify deadly force if, in light of the relevant circumstances, those movements would not cause a reasonable officer to believe that the suspect was reaching for a weapon.",
"In support of her stated fear that Haugen was reaching for a weapon, Brosseau has cited no objective factors other than her stated observation that he dove forward and appeared to be reaching for something. Construing all of the relevant facts and circumstances and drawing all reasonable inferences in Haugen's favor, as we must on a motion for summary judgment, we conclude that Brosseau has not demonstrated an objectively reasonable fear about a potential weapon that would justify her use of deadly force. 29 c. Impending Escape in a Vehicle 30 Finally, Brosseau asserted that she feared Haugen would injure officers or others when he tried to get away in his Jeep.",
"In her type-written report, Brosseau described her perception of the threat presented by Haugen's escape. In relevant part, her report states: 31 I was fearful for the other officers on foot who I believed were in the immediate area, for the occupied vehicles in his path and for any other citizens who might be in the area. It should be noted that the small red car [i.e., Nocera's Honda] was parked directly in front of the Jeep and that I had last seen Nocera and her daughter sitting inside of it. I saw no one between the Jeep and me.",
"I fired one round through the rear driver's side window. I had aimed at a position I perceived would be the driver's location in an attempt to stop him before he could hurt anyone. 32 . . . 33 During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him including attempting to stun him by striking his head. At this time I am unable to make an accurate estimation of the distance the Jeep was from me when I fired. 34 In her tape-recorded police department interview, Brosseau further described her decision to use deadly force based on what she perceived as the threat posed by Haugen's imminent escape. The relevant portions of her interview are as follows: 35 Q.",
"At that point, who then did you become concerned about? 36 A.... [M]y concern at that point and time were for the vehicles directly in front of him. One, which was um, directly in front of him, which is occupied by a woman and her child. And the other officers that I felt were in the immediate area, that were coming on foot to back me up. I was quite sure that some of them were right close to where he was driving. 37 .",
". . 38 Q. How close do you think his uh, speeding car came from striking [Nocera's red Honda]? 39 A. I don't know. 40 Q. Okay. Was it within ten feet? 41 A. I don't know.... I'm having some trouble with perceptions of distances. 42 Q. Okay. Can you estimate how close you were to his car um, when you fired the shot? 43 A. No. Not at this time. 44 . .",
". 45 Q. Okay. Did, was there a way for him, the Cherokee to get out onto the street by using the drive way? 46 A. No. 47 Q. So what did you think he was going to do? 48 A. Well, the driveway was completely blocked by the uh, the pick up truck. And the little red car was almost completely blocking it as well. So, I thought that his only way out of there was going to be to, to strike the truck or the little red car, or both. 49 Q. So the two people in the truck were, were in danger of being struck by a recklessly driven vehicle? 50 A. Yes. 51 Q. As well as the little girl and the mother? 52 A. Yes.",
"53 Q. Haugen's girlfriend in the red car? Where, were did you believe the other officers at the scene were, um, during the incident where you, were you, when you fired the shot? At that moment. 54 A. At that moment uh, can we stop the tape again for a second? 55 . . . 56 Q. When you were at the driver's door confronting Haugen, um, where were the other officers at the scene? 57 A. I, I did not see where they were at. 58 Q. Where did you think they were at? 59 A. I presume that they were in the immediate area, approaching to assist me. 60 . . . 61 Q. Um, what was your objective when you fired your weapon at the moment you fired the weapon? 62 A. To protect my fellow officers and the community from an eminent [sic] danger.",
"63 Q. You reasonably believed that there was an immediate threat to their life? 64 A. Yes, I do. 65 . . . 66 Q. Okay. And once again, just so that I know for sure, can you give me an, your basis for the reasonable belief that the other people's lives were threatened? 67 A. First of all, I still had in mind that he had a weapon. Um, I thought that it would be very difficult for him to try and shoot at me from the position we were at when I fired.",
"Uh, however, I felt that he could've fired on any officers in front of him, or the people in the pick-up truck, uh, who he had cause to be unhappy with. And his driving, more than anything else. His vehicle. I did not believe he could see where he was going. He was driving in an erratic manner. Now had pedestrians and officers and residents in the area. 68 Brosseau thus indicated in her written statement and interview that she was concerned that Haugen's driving would endanger her \"fellow officers,\" the four people in the Honda and the pickup, and others.",
"She variously characterized these people as \"any other citizens who might be in the area,\" those who were \"all around him,\" \"the community,\" and \"residents in the area.\" 69 To the extent that Brosseau said she shot Haugen because he \"was driving in an erratic manner,\" her statement is not supported by the evidence regarding the timing of the shooting. Haugen says that Brosseau shot him before the Jeep even moved. According to Haugen, not only was he not driving \"in an erratic manner,\" he was not driving at all. Others stated that, at most, Haugen's Jeep had just begun to move. Nocera said that Brosseau shot Haugen after he started the Jeep, just as he was \"getting ready to pull out,\" and that it \"was barely starting to roll.\"",
"Aaron Riddle said he heard the shot \"pretty much at the same time\" that the Jeep started moving. Irene Riddle said she heard the shot just as Haugen first revved up the Jeep. Neighbor Florence Ledbetter across the street said she saw and heard the shot just when the Jeep \"started to move.\" Tamburello stated that the Jeep was already moving, but had gone perhaps six feet. Atwood said that Brosseau shot when the Jeep \"just started pulling away,\" that it \"[h]adn't moved very far,\" and that it had gone \"maybe\" five or ten feet. Accepting the version of the disputed facts most favorable to Haugen, we do not credit Brosseau's assertion that \"he was driving in an erratic manner,\" for we must assume on summary judgment that the Jeep had not even moved when Brosseau shot him. 70 Brosseau also stated that she thought Haugen's driving was particularly dangerous because he could not see where he was going.",
"Brosseau said that \"the front windshield and at least part of the passenger side windows [of the Jeep] were covered with\" the newspaper Haugen had used to protect the glass from the spray paint. Haugen, however, testified that there was no paper on the windshield. Atwood also stated that there was no newspaper on the windshield. Tamburello stated that he saw some paper on one side of the windshield, but that Haugen pulled it off before he got in the Jeep. Because at this stage in the proceedings we must construe the factual evidence in Haugen's favor, we cannot say that there was objective evidence supporting Brosseau's claim that Haugen could not see where he was going as a result of the newspaper covering the windshield.",
"71 Brosseau further explained that, at the moment she fired, she did not believe that Haugen's impending escape in the Jeep posed a danger to her, but that it did pose a danger to others in the area. She stated that she was worried, specifically, about Nocera, Nocera's daughter, Tamburello, and Atwood. Nocera and her daughter were inside the red Honda that was parked in the driveway between the Jeep and the street. Tamburello and Atwood were seated in the pickup that was parked in the street at the end of the driveway. 72 Brosseau indicated that she was worried that Haugen could not escape without hitting the Honda or the pickup.",
"According to Brosseau, the driveway was \"completely blocked\" by the pickup and \"almost completely block[ed]\" by the Honda. But Brosseau could not say how close Haugen actually came to hitting the Honda: \"I'm having some difficulty with perceptions of distances.\" Brosseau nonetheless argues that she reasonably believed that Haugen's escape was dangerous because he was likely to hit the Honda or the pickup. 73 Contrary to Brosseau's statements, Haugen stated that he had an easy escape by driving off to the left around the Honda and pickup. Haugen admitted that he was in a fairly \"small, tight space\" which was \"not like a parking lot,\" but he said that the driveway was about twenty feet wide and that he had \"plenty of room\" to drive between the Honda and the neighbor's house without hitting anything.",
"The Jeep was already angled to the left, and Atwood stated that he saw Haugen turn the wheels to the left before putting the Jeep in gear. Haugen said that he had a \"clear, straight shot\" out of the driveway. The photographs of the scene also show that Haugen had more than enough room to drive away without striking Nocera's Honda or Tamburello's pickup. Viewing the evidence in Haugen's favor, we conclude that Brosseau has not pointed to objectively reasonable factors to support her belief that Haugen's escape from the driveway posed a significant risk of death or serious injury to the people in the Honda and the pickup.",
"74 Brosseau also asserted that she feared for the safety of her fellow officers. She has offered no specific evidence to support this fear. She claims that she \"presume[d] that they were in the immediate area, approaching to assist,\" but she does not claim that she saw them or knew that they were in a dangerous place. She had left officers Subido and Pashon, the only other officers on foot, in Rounds's backyard.",
"Two other officers were in their patrol cars in containment positions on the street several hundred feet to the south of Haugen's mother's house. Brosseau had not called Subido and Pashon to assist her, and there is no indication that they were running to give her aid. Atwood, who witnessed the events while seated in Tamburello's pickup, stated that the other two officers were still in the backyard at the time Brosseau fired. Even if they had been running to assist, Subido and Pashon would have been running from the south-east, while Haugen was escaping to the north-west. Thus, while Brosseau stated that she feared that officers on foot might be struck by Haugen's Jeep as he drove away, her statement is no more than a \"a simple statement\" of fear unsupported by \"objective factors.\" Deorle, 272 F.3d at 1281. She has not offered any evidence to support the claim that Haugen posed a significant risk of death or serious bodily injury to fellow officers.",
"75 d. High-Speed Police Chase 76 The dissent contends that a need to prevent a dangerous high-speed police chase justified Brosseau's decision to use deadly force. Brosseau stated that she was concerned about Haugen's erratic driving, but she never stated that she shot to prevent a dangerous high-speed chase, and has not argued to us that a potential chase justified her use of deadly force. In this respect, this case to some extent resembles Garner, where the police officer had initially justified his use of deadly force based only on the need to prevent Garner's escape but asserted later-apparently through counsel-that deadly force was justified by Garner's dangerousness. See Garner, 471 U.S. at 21, 105 S. Ct. 1694. We know from Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), that \"the `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them.\"",
"The relevant facts and circumstances are those known to the officer at the time she acts. \"[A]n officer's use of force must be objectively reasonable based on [her] contemporaneous knowledge of the facts.\" Deorle, 272 F.3d at 1281. We examine the objective facts and circumstances known to Brosseau at the time she acted to determine whether she had probable cause to believe that a potential high-speed chase \"pose[d] a significant threat of death or serious physical injury to the officer or others.\" Garner, 471 U.S. at 3, 105 S. Ct. 1694. 77 At the time Brosseau shot Haugen, it was clear that he intended to flee in his Jeep and that a number of non-lethal measures had failed to prevent him from doing so.",
"But it is equally clear that Brosseau and her fellow officers did not need to kill Haugen in order to avoid a dangerous high-speed chase. They could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely. Haugen had already remained at large for several months while his no-bail warrant was outstanding, and there is no reason that the events of February 20 and 21 suddenly made his freedom an immediate threat to public safety. The cost to society of allowing criminals to flee is great, but the Supreme Court has held that this cost does not always justify deadly force. \"It is not better that all felony suspects die than that they escape.\" Id. at 11, 105 S. Ct. 1694.",
"78 Because Brosseau has made no argument based on the danger of a potential high-speed chase, there is nothing in the record to tell us whether, under the Puyallup Police Department policies or other applicable rules, it would have been appropriate for the officers to initiate or continue a high-speed chase that posed a significant danger to others. We note, however, that under Washington law, police officers in pursuit must drive with due regard for the safety of others. See Wash. Rev.Code § 46.61.035. Officers in Washington may be held liable for injuries caused during high-speed chases, and, to comport with their state law duty of care, they must recognize \"that at times it would be more prudent to cease a pursuit in order to protect the public.\" Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360, 1363 (1975). 79 Different states and localities have different laws and policies regarding police pursuit. Many have recognized that officers have duties of care in relation to vehicular pursuits, and that officers may be unreasonable in initiating or continuing high-speed chases depending, among other things, on the nature of the suspect's crimes.1 \"Unusual circumstances may make it reasonable\" for police to initiate or continue high-speed chases, but \"such conduct is not justified unless the end itself is of sufficient social value.\"",
"Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn.1994). \"The decision to initiate or continue pursuit may be negligent when the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending suspects.\" Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex.1992). A ruling that allowed officers to use deadly force to prevent all vehicular escapes would have the paradoxical result that officers could reasonably shoot to kill even when, under state law, they could not reasonably initiate or continue a chase. 80 The dissent concludes that a justifiable means of eliminating the danger of a possible high-speed chase in this case is to shoot the suspect before he begins to drive away.",
"The dissent relies on an article, not cited by the parties, attesting to the danger of police chases. See dissent at 10622, n. 5 (citing John Hill, High Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, FBI Law Enforcement Bulletin 14 (July 2002)). But the article reaches quite a different conclusion from the dissent. Even after a suspect has fled and a pursuit has been initiated, 81 [t]he most effective way to reduce risks is to terminate a pursuit. Clearly, too many pursuits continue that officers obviously should have terminated. Research on pursuit data and statistics show that termination dramatically could reduce traffic accidents, fatalities, and injuries. Police must reevaluate their thinking and mission. Agencies rarely can justify endangering the public to pursue a violator.",
"82 Hill, supra, at 16 (endnote omitted). Thus, just as Garner instructs that, to comply with the Fourth Amendment, an officer must sometimes forgo or discontinue deadly force and allow a suspect to escape, see 471 U.S. at 11-12, 105 S. Ct. 1694, state tort laws and police practice experts instruct that an officer must sometimes forgo a chase and allow a suspect to escape. 83 It is no less true in potential high-speed chases than in other circumstances that an officer may appropriately use deadly force if \"necessary to prevent an escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.\" Id.",
"at 3, 105 S. Ct. 1694. But because officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase, we reject an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle. Such an approach would essentially limit the Supreme Court's holding in Garner to cases where a suspect flees on foot. The Court's opinion contains no such limitation, and we decline to read such a limitation into it. 84 To support its contention that the possibility of a dangerous high-speed chase justified Brosseau's use of deadly force in this case, the dissent cites general statistics of the dangers of car chases.",
"These statistics have not been supplied by the parties, and perforce have not been relied on by Brosseau or responded to by Haugen. Moreover, even if we could properly take judicial notice of statistics of car chases, the Supreme Court already has rejected this kind of general statistical approach to prove dangerousness in an individual case. In Garner, Tennessee attempted to justify its use of deadly force on a fleeing burglar by noting that 3.8% of burglaries involved violent crime, accounting for literally millions of incidents of violence. See id. at 21-22 & n. 23, 105 S. Ct. 1694. But the Supreme Court held that the general statistical probability alone cannot justify deadly force. A generalized assessment of dangerousness of burglars \"could not, without regard to the other circumstances, automatically justify the use of deadly force.\" Id. at 21, 105 S. Ct. 1694.",
"85 In some fairly extreme circumstances, our sister circuits have held that the danger presented by suspects who flee in vehicles can justify deadly force. In Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992), the Sixth Circuit held that an officer was justified in using deadly force after a suspect had led police on a high-speed chase at speeds over ninety miles per hour, swerved toward police cars several times, and smashed into an officer's car while the officer stood next to it.",
"In Cole v. Bone, 993 F.2d 1328, 1330-33 (8th Cir. 1993), the Eighth Circuit held that deadly force was justified where the suspects, driving an eighteen-wheel tractor-trailer, had led police on an extended chase at speeds over ninety miles per hour through heavy traffic, forcing over 100 cars off the road, and had swerved at pursuing police several times. In that case, before using deadly force, the police had attempted roadblocks and had tried to disable the truck by shooting the tires and radiator. In Scott v. Clay County, 205 F.3d 867, 877-78 (6th Cir.2000), the Sixth Circuit held that deadly force was justified where the suspect had swerved off the road, narrowly missed an unmarked cruiser and a sheriff on foot, led police on a twentyminute chase at speeds up to 100 miles per hour, and after losing control, attempted to run down an officer.",
"In Pace v. Capobianco, 283 F.3d 1275, 1281-82 (11th Cir.2002), the Eleventh Circuit held that deadly force was justified where a suspect, already pepper-sprayed after struggling with an officer, led police on an extended high-speed chase, during which he made erratic turns, drove on the wrong side of the road with his headlights off, swerved at oncoming cars, drove through a yard, nearly hit a motorist, and then accelerated toward a patrol car. 86 But our sister circuits have also held that police chases — even high-speed chases — do not always justify deadly force. See Vaughan v. Cox, 264 F.3d 1027, 1031-34 (11th Cir.2001), vacated by 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002), reinstated and supplemented on remand at 316 F.3d 1210 (11th Cir.2003); Donovan v. City of Milwaukee, 17 F.3d 944, 946-51 (7th Cir.1994). In Vaughan, officers pursued a vehicle that had rammed a patrol car and then accelerated to eighty or eighty-five miles per hour in an attempt to avoid capture.",
"In an attempt \"to disable either the truck or [the driver]\" one of the officers fired three rounds into the truck. One of the bullets struck the passenger in the truck, puncturing his spine. The Eleventh Circuit held, in those circumstances, that \"a reasonable jury could find that [the suspects'] escape did not present an immediate threat of serious harm to [officers] or others on the road.\" 264 F.3d at 1034. See also id. at 1034 n. 8 (distinguishing that case from Smith, Cole, and Scott). In Donovan, the Seventh Circuit held that officers engaged in a high-speed pursuit were not justified in using deadly force — in this case, a road block — to stop a fleeing motorcycle. The court stated that it was \"very skeptical\" of an approach that would allow police to use deadly force to end vehicular pursuits in all circumstances, because \"not every fleeing suspect poses a grave danger.\" 17 F.3d at 951.",
"In both Vaughan and Donovan, unlike in this case, the suspects already were driving in a dangerous manner without regard for the safety of others. But in those cases, that danger was held to be insufficient to justify deadly force. 87 None of the cases decided by our sister circuits and cited by the dissent even remotely supports a holding in this case that Brosseau was justified in using deadly force. Unlike the dissent, we believe that there is a manifest difference between swerving at cars while driving at ninety miles per hour and then smashing a patrol car with an officer standing next to it, see Smith, 954 F.2d at 347-48; driving an eighteen-wheel truck at ninety miles per hour through heavy traffic, see Cole, 993 F.2d at 1330-31; leading a twenty-minute chase at 100 miles per hour and attempting to run down an officer, see Scott, 205 F.3d at 877-78; and driving at high speeds on the wrong side of the road with headlights off and accelerating toward a patrol car, see Pace, 283 F.3d at 1281-82, on one hand; and getting into a vehicle and fleeing, or preparing to flee, on the other. 88 To the extent that the dissent looks to the particular facts of this case rather than to the general danger of police chases, it does not view the evidence in the light most favorable to Haugen, as we are required to do on summary judgment. For example, to portray Haugen as violent and therefore dangerous, the dissent asserts that he was engaged in a \"violent brawl\" when Brosseau arrived on the scene.",
"Dissent at 877. By all accounts, however, Haugen was on the receiving end of the violence. Tamburello stated, \"[W]hen he seen me he started to run. . . . And I ran over and grabbed him. Got into a little scuffle there. . . . I was on top of him on the ground.\" Atwood, Tamburello's companion, stated that when Tamburello caught Haugen, he \"squirmed a little bit. Tried to get away. You know, he begged him, didn't want to go[.]\" Nocera, Haugen's girlfriend, stated that Tamburello \"ran up and tackled Ken to the ground,\" and \"continued to pounce on him out here by the [car].\" Moreover, the \"brawl\" (if that is what it was) was finished before Brosseau arrived. 89 Further, to exaggerate the danger of Haugen's escape, the dissent stresses that Haugen had to escape through a \"narrow passageway\" and a dangerous \"obstacle course.\" Dissent at 879.",
"Haugen said that he was in a \"small, tight space\" that was \"not like a parking lot,\" but that the driveway was twenty feet wide, giving him \"plenty of room\" and a \"clear, straight shot\" to get to the street. The photographs of the scene show that Haugen had more than enough room to escape without hitting anything or anyone. Indeed, he was able to drive away safely even after Brosseau shot him. 90 Finally, the dissent characterizes Haugen as \"deranged\" and \"wild,\" dissent at 10623, 10629, but this characterization is not supported by the record. Brosseau stated that she held her handgun to Haugen's temple, that he yelled \"you're gonna have to fuckin kill me.\" But her version of the facts is contradicted by Haugen's version of the facts and by the other witnesses, who saw and heard no such thing.",
"The dissent also asserts that Haugen was behaving \"suicidally,\" dissent at 10620, but there is no indication in the record that Haugen intended to harm himself. (Of course, on the dissent's view, fleeing from police in a vehicle was itself suicidal since the police could shoot to kill.) 91 e. Fourth Amendment Conclusion 92 Based on the foregoing, we conclude that there is insufficient objective evidence in the record to grant Brosseau's summary judgment motion. Taken in the light most favorable to Haugen, the objective evidence, examined in light of the totality of circumstances surrounding this case and evaluated as of the time Brosseau actually fired her gun, does not support a conclusion as a matter of law that Brosseau had \"probable cause to believe that [Haugen] pose[d] a significant threat of death or serious physical injury to the officer or others.\" Garner, 471 U.S. at 3, 105 S. Ct. 1694. We therefore conclude a reasonable jury could conclude, based on this evidence, that Brosseau's conduct violated Haugen's Fourth Amendment right. See Katz, 533 U.S. at 201, 121 S. Ct. 2151. 2.",
"Qualified Immunity 93 Having determined that \"a violation could be made out on a favorable view of [Haugen's] submissions,\" id., we must next decide whether Brosseau is nonetheless entitled to qualified immunity. She is not entitled to immunity if the Fourth Amendment right at issue was clearly established. See id. For a right to be clearly established, it must be defined with sufficient specificity that a reasonable officer would have known she was violating it. 94 In some situations, the Fourth Amendment's general prohibition against excessive force may not be sufficiently specific to put an officer on notice of what conduct is allowed and what is not: 95 [T]here is no doubt that Graham v. Connor. . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson \"that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.\" 96 Id.",
"at 201-02, 121 S. Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). In other words, if Brosseau made a reasonable mistake about what the law requires, she is immune from suit. See id. at 205, 121 S. Ct. 2151. 97 On the other hand, state officials are not entitled to qualified immunity simply because no case with materially similar facts has held their conduct unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739-41, 122 S. Ct. 2508, 153 L. Ed.",
"2d 666 (2002); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir.2003). The standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that her conduct deprived a victim of his rights, she is not entitled to qualified immunity. See Pelzer, 536 U.S. at 740 & n. 10, 122 S. Ct. 2508. 98 Beyond the general proposition that excessive force is unconstitutional, the Supreme Court in Garner articulated a \"special rule\" governing the use of deadly force. See Monroe v. City of Phoenix, 248 F.3d 851, 860 (9th Cir.2001). Under Garner, deadly force is only permissible where \"the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.\"",
"471 U.S. at 11, 105 S. Ct. 1694. See, e.g., Harris, 126 F.3d at 1202 (holding that the FBI agent in the Ruby Ridge civil case was not entitled to qualified immunity); Curnow, 952 F.2d at 324-25 (holding that officers were not entitled to qualified immunity where they shot a suspect who possessed a gun but was not pointing it at the officers and was not facing the officers when they shot). 99 The doctrine of qualified immunity operates \"to protect officers from the sometimes hazy border between excessive and acceptable force.\" Katz, 533 U.S. at 206, 121 S. Ct. 2151. Officers are not liable when they err in borderline cases. See Deorle, 272 F.3d at 1285.",
"But the evidence here, when taken in the light most favorable to Haugen, does not present a borderline case. Viewing the evidence in Haugen's favor, Brosseau shot Haugen in the back even though he had not committed any crime indicating that he posed a significant threat of serious physical harm; even though Brosseau had no objectively reasonable evidence that Haugen had a gun or other weapon; even though Haugen had not started to drive his vehicle; and even though Haugen had a clear path of escape. Viewing the evidence in Haugen's favor, there is insufficient objective evidence to support Brosseau's stated concern that, at the time she shot him, Haugen posed a significant risk to police officers or others in the area. We therefore conclude that Brosseau's mistake about the requirements of the Fourth Amendment was unreasonable, and that she had \"`fair warning' that [her] conduct deprived [Haugen] of a constitutional right.\"",
"Pelzer, 536 U.S. at 740, 122 S. Ct. 2508. 100 We are mindful that police officers are called upon \"to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.\" Graham 490 U.S. at 397, 109 S. Ct. 1865. \"The'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.\" Id.",
"at 396, 109 S. Ct. 1865. We must judge Officer Brosseau's action at the time she decided to shoot, and we must give her leeway to make reasonable mistakes. 101 But we are also mindful of the grave threat to constitutional rights that is present when government officials use deadly force against citizens. \"[W]hile giving due deference to difficult judgment calls made on the street, we also must insure the rights of citizens, even fleeing felons, to be free from unreasonable seizures.\" Donovan, 17 F.3d at 951. \"The intrusiveness of a seizure by means of deadly force is unmatched.\" Garner, 471 U.S. at 9, 105 S. Ct. 1694. \"The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion.\" Id. at 10, 105 S. Ct. 1694.",
"It was for that reason that the Supreme Court in Garner held that deadly force may not be used simply because a felony suspect is successfully evading arrest. Viewing the evidence in Haugen's favor, Brosseau's use of deadly force was a clear violation of Garner, and consequently she is not entitled to summary judgment based on qualified immunity. 102 B. Fourth Amendment Claims Against the City and Police Department 103 In addition to suing Officer Brosseau, Haugen also sued the City of Puyallup and the Puyallup Police Department. Municipalities are \"persons\" subject to suit under 42 U.S.C.",
"§ 1983. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Municipalities cannot be held liable under a traditional respondeat superior theory. Rather, they may be held liable only when \"action pursuant to official municipal policy of some nature caused a constitutional tort.\" Id. at 691, 98 S. Ct. 2018. 104 Haugen's complaint did not allege, and he has not argued to us on appeal, that Brosseau was acting pursuant to any preexisting policy when she shot him. Rather, he contends that the city and the police department are at fault because they failed to discipline Brosseau after the shooting.",
"Haugen cannot, of course, argue that the municipality's later action (or inaction) caused the earlier shooting. Haugen argues instead that the city and police department should be held liable 10615 because they \"ratified\" Brosseau's decision to use deadly force. 105 The ratification, doctrine, asserted as a basis for municipal liability, originated in St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). There, a plurality of the Supreme Court stated that \"[i]f the authorized policymaker, approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.\"",
"Id. at 127, 108 S. Ct. 915. But the sentence from Praprotnik must be read in context. The Court held in Praprotnik that to establish municipal liability, a plaintiff must \"prove[ ] the existence of an unconstitutional municipal policy.\" Id. at 128, 108 S. Ct. 915. A single decision by a municipal policymaker \"may be sufficient to trigger section 1983 liability under Monell, even though the decision is not intended to govern future situations,\" Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir.1992) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)), but the plaintiff must show that the triggering decision was the product of a \"conscious, affirmative choice\" to ratify the conduct in question. Gillette, 979 F.2d at 1347. In the present case, Haugen has made no such showing. 106 Although some municipal pronouncements ratifying a subordinate's action could be tantamount to the announcement or confirmation of a policy for purposes of Monell, here there are no facts in the record that suggest that the single failure to discipline Haugen rises to the level of such a ratification.",
"See, e.g., Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir.1989) (refusing to hold that the \"failure of a police department to discipline in a specific instance is an adequate basis for municipal liability under Monell\"). The City of Puyallup and the Puyallup Police Department are therefore entitled to summary judgment. C. State Law Claims Against Brosseau 107 Haugen also sued Brosseau based on state law tort claims. Under Washington law, 108 [i]t is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death. 109 Wash. Rev.Code § 4.24.420 (2003). The district court dismissed Haugen's state law claims because, in its view, Haugen was engaged in the commission of a felony when Brosseau shot him.",
"Washington law provides that 110 [a]ny driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren.",
"The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle. 111 Id. § 46.61.024. 112 After being shot, Haugen drove away and, for a time, refused to stop for police. He ultimately pled guilty to a felony under § 46.61.024. But, as discussed in section A.1.c., supra, there is a disputed factual question about when Brosseau shot Haugen. Construing the facts in Haugen's favor, it appears that Brosseau may have shot Haugen before be had begun to \"drive his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others.\" Id. It therefore is not clear that he \"was engaged in the commission of a felony at the time of the occurrence causing the injury\" or that his felony \"was a proximate cause of\" his injury. Id.",
"§ 4.24.420 (emphasis added). At this stage in the proceedings, it is not clear that Brosseau will have the benefit of the complete defense provided in § 4.24.420. We therefore reverse the district court's grant of summary judgment on Haugen's state law tort claims. Conclusion 113 For the foregoing reasons, we REVERSE the district court's grant of summary judgment on Haugen's § 1983 claim against Brosseau. We AFFIRM the district cow-t's grant of summary judgment on Haugen's § 1983 claims against the City of Puyallup and the Puyallup Police Department. We REVERSE the district court's grant of summary judgment on Haugen's state law claims against Brosseau. We REMAND for further proceedings.",
"114 AFFIRMED in part, REVERSED in part, and REMANDED. Costs to Haugen on his appeal relevant to Brosseau. Costs to the City of Puyallup and the Puyallup Police Department. Notes: 1 See, e.g., Biscoe v. Arlington County, 738 F.2d 1352, 1363 (D.C.Cir.1984) (applying D.C. law); Seals v. City of Columbia, 641 So. 2d 1247, 1248 (Ala. 1994); Estate of Aten v. City of Tucson, 169 Ariz. 147, 817 P.2d 951, 955 (1991); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481, 487 (2000); Brummett v. County of Sacramento, 21 Cal. 3d 880, 148 Cal. Rptr. 361, 582 P.2d 952, 956 (1978); Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5, 8-10 (1983); City of Pinellas Park v. Brown, 604 So. 2d 1222, 1225 (Fla. 1992); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 347-48 (2001); Boyer v. State, 323 Md. 558, 594 A.2d 121, 132 (1991); Fiser v. City of Ann Arbor, 417 Mich. 461, 339 N.W.2d 413, 417 (1983) (overruled in part, Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000)); Smith v. City of West Point, 475 So.",
"2d 816, 818 (Miss.1985); Oberkramer v. City of Ellisville, 650 S.W.2d 286, 292 (Mo.Ct.App. 1983); Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800, 803 (1981); Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140, 1143 (1978); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547, 550 (1999); Jones v. Ahlberg, 489 N.W.2d 576, 580 (N.D.1992); Lowrimore v. Dimmitt, 310 Or.",
"291, 797 P.2d 1027, 1030-31 (1990); Kuzmics v. Santiago, 256 Pa.Super. 35, 389 A.2d 587, 590 (1978); Haynes v. Hamilton County, 883 S.W.2d 606, 610-11 (Tenn.1994); Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex.1992); New Jersey Police Vehicular Pursuit Policy, Att'y Gen. Guidelines (Dec.2001); Los Angeles Police Dep't Manual, ch. 555 (2003); Seattle Police Dep't Policies & Procedures § 1.141 (2003). REINHARDT, Circuit Judge concurring: 115 I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an otherwise nondangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a highspeed chase of a nondangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase.",
"In other words, the chase itself cannot create the danger that justifies shooting a suspect who, under Garner, may not otherwise be shot. I do not understand the out-of-circuit cases discussed in Judge Fletcher's excellent opinion and in the dissent to hold otherwise. GOULD, Circuit Judge, dissenting: 116 I cannot accept the majority's conclusion that Haugen, a visibly disturbed felon willing to do almost anything to avoid capture, did not pose \"a significant threat of death or serious physical injury\" to others when he attempted a high-speed vehicular flight from police through a suburban residential neighborhood on a Sunday afternoon. Nor can I accept the majority's holding that — because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle.",
"The majority's sweeping holding, which promises an easy escape to any felon willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits' holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others.1 The majority opinion creates a new obstacle to effective law enforcement in the western United States. It threatens the innocent to protect the guilty. 117 * Under Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.",
"2d 1 (1985), the reasonableness of Officer Brosseau's conduct under the Fourth Amendment depends on (1) whether she had probable cause to believe that Haugen's fleeing the scene in his car would pose \"a significant threat of death or serious physical injury\" to others and (2) whether deadly force was necessary to prevent Haugen's escape. Id. at 3, 105 S. Ct. 1694. Officer Brosseau's conduct was reasonable under the Garner standard. 118 Viewing the evidence in the light most favorable to Haugen, as we must at this stage,2 Officer Brosseau had probable cause to believe that Haugen's fleeing the scene in his car would pose a significant threat of serious harm to others. Haugen was a desperate man capable of desperate measures. Haugen was a felony suspect who, when Officer Brosseau arrived on the scene, was engaged in a violent brawl with two other men.3 Haugen defied Brosseau's orders to stop; he ignored her brandishing a gun at close range; he ignored her beating his car window with the butt of her gun; he ignored her shattering his car window; he ignored her striking him in the head with the butt of her gun; he ignored her attempts to grab his keys. Haugen was behaving wildly, even suicidally (defying an officer brandishing a gun at close range), and Officer Brosseau had probable cause to believe that Haugen would do almost anything to avoid capture.",
"See Menuel v. City of Atlanta, 25 F.3d 990, 995 (11th Cir.1994) (from the vantage of an officer confronting a dangerous suspect, \"a potential arrestee who is neither physically subdued nor compliantly yielding remains capable of generating surprise, aggression, and death\").4 119 As Haugen admitted in his deposition, he attempted a high-speed vehicular flight through suburban streets. Haugen admitted that he drove as fast as he could when he left the driveway, that he drove through the residential streets as fast as his car would go in third gear, and that he would have driven faster if the bullet wound had not made it difficult for him to shift gears. Haugen later pled guilty to the felony of \"eluding,\" admitting he drove his vehicle \"in a manner indicating a wanton or willful disregard for the lives or property of others.\" Wash. Rev.Code § 46.61.024.",
"That Haugen, by his own admission, drove his car in a manner indicating \"a wanton or willful disregard for the lives . . . of others\" is powerful evidence of the reasonableness of Officer Brosseau's earlier belief that he would pose a significant threat of serious harm to others if permitted to escape. 120 A criminal suspect's fleeing from police in an automobile is inherently dangerous. The National Highway Traffic Safety Administration reports that 314 people were killed during police pursuits in 1998, the last year for which I can find a record.5 National Highway Traffic Safety Administration, Fatality Analysis Reporting System — ARF, Fatalities in Crashes Involving Law Enforcement in Pursuit 1998 (2000). Of that total, two were police officers, 198 were fleeing criminal suspects, and 114 were innocent bystanders.",
"Id. Presumably, many more high-speed pursuits result in serious injuries.6 121 The annals of law are filled with stories of police chases with tragic ends. In City of El Centro v. United States, a driver fleeing from police flipped his van, leading to an explosion that killed him and two passengers and that injured another fourteen passengers. 922 F.2d 816, 818 (Fed. Cir.1990). In Mays v. City of E. St. Louis, Ill., a driver fleeing from police ran into a cement barrier, killing one passenger and severely injuring eight others. 123 F.3d 999, 1000 (7th Cir.1997). In Roach v. City of Fredericktown, a driver fleeing from police lost control of his car and collided with an oncoming car, killing himself and seriously injuring others.",
"882 F.2d 294, 295 (8th Cir.1989). In Helseth v. Burch, a driver fleeing from police ran a red light and collided with a pickup truck, killing the truck's passenger, rendering the truck's driver a quadripelegic, and seriously, injuring three children in his own car. 258 F.3d 867, 869 (8th Cir.2001) (en banc). In Mason v. Bitton, a driver fleeing from police lost control of his car, crossed a median, and collided with an oncoming car, killing the occupants of both cars. 85 Wash.2d 321, 534 P.2d 1360, 1361-62 (1975). These judicial decisions tell the tragic stories of only a few deadly police chases. There have been thousands more in the past. And there will be thousands more in the future, particularly if the majority's view prevails, deterring law enforcement from protecting the public. 122 I do not suggest that police marksmen may fire at will upon any felon fleeing in an automobile, merely because the felon is leaving the scene of a crime or because the felon has violated traffic laws.7 Rather, I suggest that where police have probable cause to believe a fleeing felon will drive with willful disregard for the lives of others, the Supreme Court's Garner decision permits officers to use deadly force when necessary to protect the public.",
"Officer Brosseau plainly had such probable cause here. 123 Officer Brosseau was concerned not only with the real possibility that Haugen might cause serious injury or even a fatality if she permitted him to speed through the neighborhood in his car. Brosseau also was concerned with the imminent possibility that Haugen might injure someone on the scene. Photographs in the record show that Haugen \"peeled out\" (he accelerated, leaving visible skid marks) of a driveway blocked on three sides by houses and a garage. Directly in Haugen's path were parked vehicles containing four persons, including a young child. Only by driving through this narrow passageway,8 around the corner of a neighbor's house, and across a neighbor's lawn (a maneuver Haugen admitted he executed while accelerating \"as quickly as [he] could\") did Haugen avoid the cars. Brosseau was right to worry that Haugen, if permitted to speed through this obstacle course, would seriously injure the innocent bystanders or one of the police officers Brosseau believed were running toward the scene on foot to assist her. 124 The first prong of the Supreme Court's Garner test is met. Not only was Haugen fleeing in a 3,000 pound vehicle, but also he was behaving in a manner that suggested he would drive with reckless disregard for the lives of others (as he subsequently did).",
"Presented with a desperate man taking desperate measures in a deadly machine, Officer Brosseau reasonably concluded that Haugen posed a significant threat of serious harm to the community. See United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987) (\"It is indisputed that an automobile can inflict deadly force on a person and that it can be used as a deadly weapon.\") (per curiam). 125 The second prong of the Garner test also is met, because deadly force was necessary to prevent Haugen from escaping. Deadly force is not necessary where there exists a less drastic alternative that is \"reasonably likely to lead to apprehension before the suspect can cause further harm.\" Forrett v. Richardson 112 F.3d 416, 420 (9th Cir.1997). Here, Officer Brosseau attempted several less drastic alternative means of subduing Haugen before shooting him. She called several other officers and a police dog to scour the neighborhood for him.",
"She ordered him to freeze as he ran to his car. She chased him. She ordered him to open the door and to get out of his car. She brandished her gun — effectively warning him that he must relent or be shot. She smashed his driver's side window. She beat his head with the butt of her gun. She tried to take his keys. Only after Officer Brosseau had attempted several less drastic alternatives — alternatives that failed to subdue Haugen — did she resort to the extreme step of shooting Haugen.",
"126 Haugen urges that a less drastic alternative would have been for Officer Brosseau to permit him to flee in his car. Haugen urges that officers would have been able to capture him another time. However, Haugen fails to recognize the costs to society of allowing felons to flee without constraint. And Haugen fails to explain by what method those officers would have subdued him \"before [he could] cause further harm,\" as our Forrett decision (and common sense) requires. 112 F.3d at 420 (emphasis added). Haugen's reckless departure threatened the safety of people on the scene. His racing through the streets threatened the safety of people in the neighborhood. Research indicates that vehicular flights from police become dangerous very quickly. Fifty percent of all collisions occur in the first two minutes of police pursuit, and more than 70 percent of all collisions occur before the sixth minute of the pursuit. G.P. Alpert, U.S. Department of Justice, National Institute of Justice, Pursuit Management Task Force Report (1998). Officer Brosseau correctly decided that waiting was not an option under the circumstances.9 127 Even if permitting Haugen to race away in his automobile were a reasonable alternative, we cannot properly fault Officer Brosseau for not thinking of it in the heat of the moment.",
"Judges must allow \"for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.\" Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). We must judge Officer Brosseau's conduct from the perspective of a reasonable officer on the scene, not from the perspective of a judge in his or her chambers. Id. The majority effectively ignores this command from the Supreme Court, measuring Officer Brosseau's conduct not against the standard of a reasonable officer on the scene, but against the standard of its own inexpert judgment as to what Officer Brosseau should have done under the circumstances.",
"128 In sum, I would hold that Officer Brosseau had probable cause to believe that Haugen's leading police on a reckless highspeed car chase through a residential neighborhood would pose a significant threat of serious harm to the community and that the use of deadly force was necessary to prevent his escape. I would hold that Officer Brosseau's shooting of Haugen did not violate Haugen's Fourth Amendment rights. 129 The majority's contrary holding is objectionable not only because it flouts the Supreme Court's Garner standard, but also because it creates a circuit split. The Sixth, Eighth, and Eleventh Circuits all have held, as I would hold, that officers are justified in using deadly force when a fleeing felon appears likely to drive with willful disregard for the lives of others. See Scott v. Clay County, 205 F.3d 867, 877 (6th Cir.2000) (holding that police reasonably shot a felon fleeing in an automobile when his reckless driving posed an immediate threat to the safety of officers and innocent civilians); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir.1992) (holding that police reasonably shot a misdemeanant fleeing in an automobile when he posed a threat to officers at a police roadblock and appeared likely to \"do almost anything to avoid capture\"); Cole v. Bone, 993 F.2d 1328, 1330-33 (8th Cir.1993) (holding that police reasonably shot a criminal fleeing in a truck when he posed a threat to travelers driving on a crowded interstate highway); Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir.2002) (holding that police reasonably shot a felon fleeing in an automobile when he appeared likely to continue using his vehicle aggressively during a police pursuit).",
"130 Contrary to the holdings of every circuit to consider the issue, the majority holds that an officer violates a fleeing felon's Fourth Amendment rights by using deadly force to prevent a dangerous vehicular flight because \"officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase.\" Supra at 870.10 The majority believes that police officers should permit felons to speed away unpursued rather than attempt to stop them. See id. at 869 (\"[Officers] could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely. \"); id.",
"at 870 (\"[A]n officer must sometimes forego or discontinue deadly force and allow a suspect to escape.\"). The majority slights the important law enforcement interests in pursuing fleeing felons. See, e.g., Donovan v. City of Milwaukee, 17 F.3d 944, 951 (7th Cir.1994) (\"Police officers may, and ought to, pursue fleeing suspects, and where those suspects present a threat of serious physical harm, either to the officer[s] or others, it is not constitutionally unreasonable to prevent escape by using deadly force.\") (emphasis added). The majority neglects the fact that if police are forbidden to pursue, then many more suspects will flee — and successful flights not only will reduce the number of crimes solved but also will create serious risks for passengers and bystanders. See Mays v. City of E. St. Louis, 123 F.3d 999, 1003 (7th Cir.1997). Moreover, the majority errs by putting the onus on police to end the pursuit by letting the felon escape, rather than on the fleeing felon, who at all times has the power to avoid injury to himself and others by halting as the law requires.",
"See id. at 1004 (holding that a police officer's pursuit of a fleeing felon in an automobile played a \"causal role\" in an ensuing wreck, \"but not the kind of cause the law recognizes as culpable. . . . [A] criminal's effort to shift the blame [to police]. . . is not one that any legal system can accept.\"). 131 The majority attempts to justify its departure from precedent by reasoning that Officer Brosseau's fellow police officers might have decided to let Haugen escape in his jeep unpursued and that, for this reason alone, Officer Brosseau did not have probable cause to believe that Haugen's vehicular flight would pose a danger to others. There are several problems with the majority's reasoning. 132 First, the majority implies, contrary to the record evidence, that Haugen would have driven safely and carefully away from the scene if he had not been followed by police squad cars. But it is unrealistic to conclude that Haugen, a deranged and defiant felon, would suddenly have been transformed into a model citizen and careful driver the moment he drove away from the scene and did not hear police sirens in pursuit.",
"And even if Officer Brosseau had believed that her fellow officers would not pursue Haugen's vehicle, Brosseau still would have had probable cause to believe that Haugen would speed away from the scene with willful and wanton disregard for others' safety. Indeed, even before the police squad cars gave chase, Haugen was, by his own admission, \"standing on the gas\" in the driveway, accelerating \"as quickly as [he] could,\" within a \"small, tight space,\" a fact that confirms the reasonableness of Officer Brosseau's earlier concern about others' safety. 133 Second, the majority implies (with no basis in the record) that Washington law or Puyallup Police Department policy prohibited (or, at least, discouraged) Officer Brosseau's fellow officers from pursuing Haugen in their squad cars. Although police officers in Washington may have to compensate a person who is injured by police officers' negligent conduct while pursuing a fleeing felon, Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360, 1363 (1975), Washington law does not prohibit police from pursuing a fleeing felon in a vehicle.",
"So the majority errs by effectively holding that Officer Brosseau was required to assume that her fellow officers would not chase Haugen in their squad cars and that Haugen would drive away carefully, safely, and unpursued. 134 Third, Officer Brosseau's fellow officers in fact chased Haugen in their squad cars, so Officer Brosseau was correct in assuming that a police pursuit would occur. Officer Brosseau was entitled to consider the potential danger of that police pursuit in assessing the danger Haugen posed to others.",
"135 The majority apparently prefers, as a matter of policy, that police departments discourage their officers from pursuing felons in automobiles. If the majority had its way in setting law enforcement policy, no police officer ever would pursue a felon at high speed; the police would surrender, rather than the felon, who would be given a free pass to an easy escape. In my view, the majority errs by allowing its policy preference to corrupt its analysis of the danger Haugen posed to the community by fleeing in a vehicle in a deranged mental state. 136 Having created a circuit split by misapplying Garner, the majority downplays its departure from our sister circuits' decisions by urging that those decisions approved of deadly force in circumstances very different from those presented here. Although every case presents unique facts, the facts in our sister circuits' decisions are similar to the facts here in important respects.",
"In the Sixth, Eighth, and Eleventh Circuit cases, as in this case, a suspect was fleeing from police in an automobile, a machine that can be extremely dangerous when not operated with great care and due regard for the public safety. See Scott, 205 F.3d at 871-72; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330; Pace, 283 F.3d at 1277. In those cases, as in this case, the felon refused orders to halt. See Scott, 205 F.3d at 871; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330; Pace, 283 F.3d at 1277.",
"In those cases, as in this case, the felon was behaving in a desperate and unstable manner. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330-31; Pace, 283 F.3d at 1277-78. In those cases, as in this case, the felon appeared likely to take extreme steps to avoid capture. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1331; Pace, 283 F.3d at 1277-78. Most importantly, in those cases, as in this case, the felon appeared likely to drive with willful disregard for the lives of others. See Scott, 205 F.3d at 872; Smith, 954 F.2d at 344; Cole, 993 F.2d at 1330-31; Pace, 283 F.3d at 1277-78.11 137 The majority attempts to distinguish our sister circuits' holdings on the ground that police in those cases used deadly force to end a dangerous high-speed flight, rather than to prevent a dangerous high-speed flight from commencing. But our sister circuits did not, as the majority implies, require that police officers wait until after a suspect has endangered the lives of others before using deadly force. Nor could they have so held.",
"The Supreme Court's Garner decision requires courts to determine whether officers have probable cause to believe a suspect will pose a threat of serious physical harm in the future, not whether the suspect posed such a danger in the past. See Garner, 471 U.S. at 11-12, 105 S. Ct. 1694. 138 At the time Officer Brosseau shot Haugen, Haugen's vehicle had not yet begun to move. But an objective observer would have reasonably concluded that Haugen was embarking on a desperate, potentially deadly, high-speed vehicular flight through residential neighborhoods. That Haugen was only beginning to execute his plan of driving with willful and wanton disregard for the lives of the innocent does not mean, as the majority suggests, that Haugen did not pose a\"significant threat of death or serious physical injury\" to others.",
"Nothing requires a police officer, like some modern-day Epimetheus, to disregard prospective danger and attend only to dangers that have passed. It was good that Brosseau acted when she did. 139 Contrary to the majority's suggestion, neither the Seventh Circuit's Donovan decision nor the Eleventh Circuit's Vaughan v. Cox decision lends support to the majority's novel holding. Both Donovan and Vaughan are consistent with my view-compelled by the Supreme Court's Garner decision that police can use deadly force when necessary to stop a fleeing felon who appears likely to drive with willful disregard for the lives of others.",
"In Donovan, the Seventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when \"there [was] no evidence that [the suspect] imperiled anyone (except himself and his willing passenger). . . [by] driving his motorcycle through empty city streets in the wee hours of the morning.\" 17 F.3d at 951. Here, by contrast, Haugen's own testimony-describing his attempted high-speed flight through a suburban residential neighborhood in his jeep on a Sunday afternoon-shows that Haugen's conduct would have imperiled many people, both on the scene and in the community, if Officer Brosseau had not reasonably intervened. 140 In Vaughan the Eleventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when police shot without warning a fleeing suspect.",
"264 F.3d 1027, 1031, 1031 n. 2 (11th Cir.2001) (vacated by 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002), reinstated and supplemented on remand at 316 F.3d 1210 (11th Cir.2003)). Here, by contrast, it is undisputed that Officer Brosseau effectively warned Haugen that he would be shot if he did not submit to arrest. 141 Fourth Amendment analysis requires a delicate balancing of individual and societal interests, Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), and an individual's interest in his or her life is of unmatched importance. But when a felon threatens innocent lives in a base attempt to escape responsibility for his or her crimes, police officers do not act unreasonably in using deadly force to protect the community. I would hold that Officer Brosseau did not violate Haugen's Fourth Amendment rights and that the district court properly granted summary judgment in her favor.",
"142 * * * * * * 143 With perhaps the purpose, but certainly not the effect, of obscuring its departure from the Supreme Court's Garner standard and our sister circuits' precedents, the majority deploys an array of rhetorical devices that, individually and collectively, serve only to accentuate the weaknesses of the majority's rationale. 144 First, the majority implies that its holding is consistent with those of our sister circuits. But no other court has ever come close to holding, as the majority holds today, that police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle.",
"See Scott, 205 F.3d at 877 (holding that police reasonably used deadly force to stop a suspect fleeing in a vehicle); Smith, 954 F.2d at 347-48 (same); Cole, 993 F.2d at 1330-33 (same); Pace, 283 F.3d at 1281 (same). Second, the majority implies that police officers' decision to pursue Haugen in their police cruisers was of dubious legality under Washington law. But it was not; such chases are permissible, though they must be conducted with due care. See Mason, 534 P.2d at 1363. Third, the majority states that we cannot properly take judicial notice of the official government statistics I cited to emphasize the dangerousness of high-speed flights by felons from police. But this is incorrect.",
"See, e.g., Chastleton Corp. v. Sinclair, 264 U.S. 543, 548, 44 S. Ct. 405, 68 L. Ed. 841 (1924) (Holmes, J.) (\"[T]he Court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law. . . . \"). Fourth, the majority states that the Supreme Court in Garner rejected \"[the dissent's] kind of general statistical approach.\" See supra at 870. But I do not use any \"general statistical approach,\" and, in any event, the Supreme Court used statistics in Garner in precisely the way I use them here. See 471 U.S. at 21, 105 S. Ct. 1694. Fifth, the majority states that I do not view the facts in the light most favorable to Haugen. But I have relied only on facts Haugen does not dispute, facts that compel the conclusion that Haugen's fleeing in his vehicle would have posed a significant threat of death or serious physical injury to others.",
"145 The majority's artful phrasing and overwrought lucubrations should not and cannot obscure the majority's departure from the Supreme Court's and our sister circuits' law. Acting somewhat as a police commissar for the western states and territories in our jurisdiction, rather than as a constitutional court, the majority imposes serious and unworkable restrictions on police officers' efforts to bring criminals to justice and to protect the community.",
"I cannot join the majority in that effort. II 146 The majority's holding that Officer Brosseau violated Haugen's rights is wrong. But it is not as wrong as the majority's holding that those rights were \"clearly established\" at the time of the shooting. It should be undeniable that Officer Brosseau did not violate Haugen's 49 clearly established\" rights and so was qualifiedly immune from suit. 147 Qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).",
"If \"it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,\" then qualified immunity does not apply. Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). But if, on the other hand, \"officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.\" Malley, 475 U.S. at 341, 106 S. Ct. 1092. 148 Officer Brosseau was not plainly incompetent.12 Nor did she knowingly violate the law. Police officers of reasonable competence could disagree whether deadly force was justified.13 In fact, federal appeals courts of reasonable competence do disagree on the issue.14 And judges, unlike police officers, have the luxury of studying the constitutional issues in the calm of their chambers, with the benefit of lawyers' briefing, and after healing oral arguments. See Ganwich v. Knapp, 319 F.3d 1115, 1125 (9th Cir.2003) (\"[J]udges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor's precision.\"). 149 The majority holds Officer Brosseau to an unreasonable standard. Officer Brosseau should be commended, not condemned, for acting with courage and decisiveness to protect the public from a dangerous felon in a deranged mental state embarking on a potentially deadly flight from police. I respectfully dissent.15 Notes: 1 As I explain below, the majority creates a circuit split, departing from the holdings of the Sixth, Eighth, and Eleventh Circuits 2 This is because the district court granted summary judgment to Officer Brosseau 3 In an attempt to portray Haugen as appearing peaceful, the majority states that, \"[b]yall accounts, .",
". . Haugen was on the receiving end of the violence . . . . [and] the `brawl' . . . was finished when Brosseau arrived.\" See supra at 872 (emphasis added). The majority omits Haugen's account in his deposition, in which he admitted to engaging in acts of violence. Haugen stated that he and his adversary \"got into a wrestling thing.\" Haugen then stated that, just after Officer Brosseau arrived on the scene, he \"elbowed Atwood and went for the keys in his truck.\" Haugen continued, \"[T]he police pulled up. [Atwood and Tamburello] were distracted. I ellbowed [Atwood] the rest of the way out of the car and got away from him.\" In any event, it does not matter whether Haugen or his adversaries were the initial aggressors in their combat. What matters is Officer Brosseau's \"contemporaneous knowledge of the facts,\" see Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001), and Officer Brosseau knew only that Haugen was engaged in a violent brawl when she arrived an the scene. It is undisputed that Officer Brosseau received a radio dispatch stating that there was a \"fight in progress\" and that \"[t]wo men were fighting on the ground.\" Officer Brosseau was entitled to consider the fact that Haugen had been fighting as one factor in assessing Haugen's potential dangerousness, and the majority errs by dismissing it.",
"4 The majority states that Officer Brosseau was not motivated by a desire to protect the community from Haugen's likely erratic driving. This is false. In Officer Brosseau's taperecorded police department interview, Brosseau stated that she shot Haugen \"to protect my fellow officersand the community from an eminent [sic] danger.\" (emphasis added). She then stated that she was concerned for \"pedestrians and officers and residents in the area.\" (emphasis added). In her written statement, Officer Brosseau stated, During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him.",
"(emphasis added). Officer Brosseau's expressed concerns were to protect the community, the residents in the area, and all those around Haugen. She did not, as the majority implies, limit her concern to people in the immediate area. 5 Though these statistics demonstrate that felons fleeing from police in automobiles put the public at serious risk of death or injury, the statistics almost certainly understate the extent of the danger, due to the lack of a mandatory reporting system.",
"John Hill,High-Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, Law Enforcement Bulletin 14 (July 2002) (\"Even conservative estimates by various researchers recalculate the actual number of fatalities between 400 to 500 deaths per year.\"). 6 The majority faults me for citing these official government statistics, arguing that the Supreme Court inGarner rejected \"this kind of general statistical approach.\" Supra at 870. The majority misrepresents my analysis. I do not, as the majority says, rely solely on statistics to support my view that Officer Brosseau was entitled to use deadly force. Rather, I rely on the objective circumstances — most notably Haugen's wild behavior immediately before he sped away in his jeep — that demonstrated to observers that Haugen was about to drive with willful disregard for the lives of others.",
"My analysis does not depend on the government statistics, which I cite merely to emphasize the reasonableness of Officer Brosseau's decision to use deadly force and the important consequences to our society if Officer Brosseau's appropriate conduct is condemned. Moreover, my use of statistics is consistent with the Supreme Court's use of statistics in Garner. See 471 U.S. at 21, 105 S. Ct. 1694 (relying on a Bureau of Justice Statistics report to support the conclusion that \"burglaries only rarely involve physical violence.\"). 7 The majority thus mischaracterizes my analysis as \"an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle. \"Supra at 870.",
"Contrary to the majority's mischaracterization, I would hold that deadly force is reasonable only when it appears that a fleeing felon will drive with willful disregard for the lives of others. Here, Haugen's wild and defiant actions (which included disobeying a police officer brandishing a gun at close range) prior to fleeing in his vehicle plainly indicated that he would take any steps necessary to avoid capture, including driving with willful disregard for the lives of others, which Haugen — by his own admission — subsequently did. As Officer Brosseau stated, During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life.",
"I considered Haugen an immediate danger to all around him and made every attempt to stop him. 8 Haugen in his deposition described this passageway as a \"small, tight space.\" 9 The author of the majority opinion at oral argument asked defense counsel whether Officer Brosseau should have shot Haugen's tires to disable his vehicle. Though the majority opinion does not now rely on this as a possible alternative to the use of deadly force, it is perhaps helpful to explain why shooting Haugen's tires likely would not have been an appropriate or effective tactic to end the threat Haugen posed. Shooting Haugen's tires may not have disabled his car. Haugen still could have escaped — and endangered others — by driving with a flattened tire or two. More importantly, Officer Brosseau would have endangered herself and others had she shot at Haugen's tires.",
"Police ammunition is designed to disable human beings, not to disable automobiles. Had Officer Brosseau fired at Haugen's tires at close range, her bullets might have ricocheted, killing or injuring her or an innocent bystander. Even if Officer Brosseau's bullets penetrated a tire, the bullets would not necessarily have come harmlessly to rest. The bullets could have continued their trajectory, ricocheting off the ground or automobile, killing or injuring the innocentSee Rick Parent, When Police Shoot, Police Magazine, Oct. 2000 (\"Unlike the scenes depicted by `Hollywood,' the `shooting out of a tire' can be a precarious and dangerous event.\"). Officer Brosseau was wise not to shoot Haugen's tires.",
"This \"alternative\" was no alternative at all. 10 More candid than the majority opinion, Judge Reinhardt's separate concurring opinion restates the majority's holding in explicit terms. The concurring opinion states, \"I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an other-wise non dangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a high-speed chase of a non dangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect. .",
". . \"Supra at 876. The majority opinion never disavows Judge Reinhardt's separately stated view, which, in any event, animates the majority opinion's analysis. 11 It is worth noting that the suspects inScott, Smith, Cole, and Pace were suspected of crimes less serious and less dangerous than the burglary and battery of which Haugen was suspected. See Scott, 205 F.3d at 871 (suspect ignored a traffic sign); Smith, 954 F.2d at 344 (suspect ran a stop sign); Cole, 993 F.2d at 1330 (suspect drove through toll booth without paying); Pace, 283 F.3d at 1276 (suspect driving at night without headlights). 12 Rather, I would say Officer Brosseau is very competent 13 Indeed, the Puyallup Police Department Firearms Review Board concluded, after an investigation, that Officer Brosseau's actions did not violate Washington law or police department policy 14 The majority does not disagree only with my dissenting views. The majority also disagrees with the considered wisdom of the Sixth, Eighth, and Eleventh Circuits, which have held there was no Fourth Amendment violation in circumstances similar to those presented hereSee Scott, 205 F.3d at 877; Cole, 993 F.2d at 1330-33; Pace, 283 F.3d at 1281.",
"15 Despite my dissent, I do not disagree with Parts II.B. and II.C. of the majority opinion, affirming the district court's summary judgment in favor of the City of Puyallup and the Puyallup Police Department, and reversing the district court's dismissal of Haugen's state law claims. I disagree with Part II.A., the majority's Fourth Amendment analysis"
]
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Genung, J. The plaintiff sues to recover $105 claimed to be due it from the defendant for use and occupation of apartment 6-A in premises 1230 Park avenue, borough of Manhattan, for the period from January 16, 1937, to and including March 1, 1937, at the agreed price and reasonable value of seventy dollars per month. The answer is a general denial, and upon the trial the plaintiff’s complaint was amended to add a second cause of action reading: “ Action for rent of apartment 6-A in building and premises 1230 Park Avenue, Borough of Manhattan, City of New York, from January 16, 1937 through and including March 1, 1937 at the agreed rental of $70.00 per month. Payment demanded and refused.” Upon the trial the facts were stipulated to be in substance as follows: That one, Sol N. Lusher, the husband of this defendant, signed a lease on June 26, 1936, for the premises involved in this suit for a term commencing October 1, 1936, and terminating September 30, 1937, at a rental of seventy dollars per month in advance for occupancy by Mr. Lusher and his family; that Mr. Lusher entered into the possession of this apartment pursuant to *546this lease and continued in this occupancy with his wife, this defendant, until Sol N. Lusher died on January 15, 1937; that thereafter this defendant continued to occupy the premises in question for the entire period involved in this suit, to wit, from January 16, 1937, up to and including February 28, 1937; that no executor, administrator or other legal representative of Sol N. Lusher’s estate has been appointed; that no rent has been paid to the plaintiff by the defendant or any other person for the rent or occupancy of the premises; and that the complaint is deemed amended so as to charge the defendant for rent as well as for use and occupation. A copy of the lease was made part of the stipulation. Upon these undisputed facts the plaintiff seeks to establish a liability against this defendant, the widow of Sol N. Lusher, for the sum claimed in the summons. The plaintiff claims that the facts, here conceded, create a presumption that this defendant became, in legal effect, the assignee of the husband’s lease, and thereby rendered herself liable for rent or for use and occupation during the period she occupied the leasehold premises. There is no question raised as to the correctness of the amount claimed or as to the value of the leased premises. The defendant concededly got the full value of the occupancy of the apartment in question, and apparently was the sole beneficiary of such occupancy. She did not, nor did any other person, apply for letters of administration. She, nevertheless, and without such letters of administration, assumed possession of and enjoyed the benefit of the estate which her late husband had in the leased premises. Meddling with her husband’s estate in this fashion without taking out letters of administration makes her liable for the debts of the estate upon the presumption that she has, in that fashion, acquired assets belonging to the estate with which to pay the debts óf the estate. In Lockwood v. Stockholm (11 Paige, 87), a somewhat similar case, the court said (at p. 91): “ If the husband intermeddles with the deceased wife’s estate, without taking out letters of administration, the revised statutes make him liable for her debts, upon the presumption that he has assets belonging to her estate to pay them.” Another almost parallel case is the case of Noble v. Thayer (19 App. Div. 446), where the court used, in part, the following language: “It appears that she died intestate, and it does not appear that any administrator has ever been appointed for her estate. Upon her death, however, her husband took the possession which she had under such lease and still holds the same, and he paid the rent to the lessor so long as he lived, and to the wife Anna for the amount *547due in 1894. Under such circumstances he may be deemed an assignee of the lease in possession, and would be liable for the rent as long as he remained in possession. (Frank v. N. Y., L. E., etc., R. R. Co., 122 N. Y. 197, 215. S.ee, also, Pugsley v. Aikin, 11 id. 494.) ” While in the instant case it is clear that the defendant did not pay any rent, she, nevertheless, had the full benefit of the plaintiff’s property, knowing it did not belong to her, and under those circumstances she cannot be held to accept the benefit of the occupancy without at the same time assuming the burden of paying the reasonable rent therefor. The defendant can also be held liable upon the theory urged by the plaintiff to the effect that she created herself substantially an assignee in possession. In Mann v. Munch Brewery (225 N. Y. 189, at p. 193) Judge Crane said: “ Where a person other than the lessee is shown to be in possession of leasehold premises the law presumes that the lease has been assigned to him. It further presumes that the assignment was sufficient to transfer the term and to satisfy the Statute of Frauds. (Frank v. N. Y., Lake Erie & Western Railroad Company, 122 N. Y. 197.) ” And at page 195, he said: “The covenant to pay rent runs with the land.” By reason of the fact that the defendant appropriated to herself and to her own uses the benefits of this lease and occupied the premises without applying for administration of her late husband’s estate, she must have intended to bind herself personally for the value of the leased premises. Judgment is awarded in favor of the plaintiff for $105, together with appropriate costs. | 02-05-2022 | [
"Genung, J. The plaintiff sues to recover $105 claimed to be due it from the defendant for use and occupation of apartment 6-A in premises 1230 Park avenue, borough of Manhattan, for the period from January 16, 1937, to and including March 1, 1937, at the agreed price and reasonable value of seventy dollars per month. The answer is a general denial, and upon the trial the plaintiff’s complaint was amended to add a second cause of action reading: “ Action for rent of apartment 6-A in building and premises 1230 Park Avenue, Borough of Manhattan, City of New York, from January 16, 1937 through and including March 1, 1937 at the agreed rental of $70.00 per month. Payment demanded and refused.” Upon the trial the facts were stipulated to be in substance as follows: That one, Sol N. Lusher, the husband of this defendant, signed a lease on June 26, 1936, for the premises involved in this suit for a term commencing October 1, 1936, and terminating September 30, 1937, at a rental of seventy dollars per month in advance for occupancy by Mr. Lusher and his family; that Mr. Lusher entered into the possession of this apartment pursuant to *546this lease and continued in this occupancy with his wife, this defendant, until Sol N. Lusher died on January 15, 1937; that thereafter this defendant continued to occupy the premises in question for the entire period involved in this suit, to wit, from January 16, 1937, up to and including February 28, 1937; that no executor, administrator or other legal representative of Sol N. Lusher’s estate has been appointed; that no rent has been paid to the plaintiff by the defendant or any other person for the rent or occupancy of the premises; and that the complaint is deemed amended so as to charge the defendant for rent as well as for use and occupation.",
"A copy of the lease was made part of the stipulation. Upon these undisputed facts the plaintiff seeks to establish a liability against this defendant, the widow of Sol N. Lusher, for the sum claimed in the summons. The plaintiff claims that the facts, here conceded, create a presumption that this defendant became, in legal effect, the assignee of the husband’s lease, and thereby rendered herself liable for rent or for use and occupation during the period she occupied the leasehold premises. There is no question raised as to the correctness of the amount claimed or as to the value of the leased premises. The defendant concededly got the full value of the occupancy of the apartment in question, and apparently was the sole beneficiary of such occupancy. She did not, nor did any other person, apply for letters of administration.",
"She, nevertheless, and without such letters of administration, assumed possession of and enjoyed the benefit of the estate which her late husband had in the leased premises. Meddling with her husband’s estate in this fashion without taking out letters of administration makes her liable for the debts of the estate upon the presumption that she has, in that fashion, acquired assets belonging to the estate with which to pay the debts óf the estate. In Lockwood v. Stockholm (11 Paige, 87), a somewhat similar case, the court said (at p. 91): “ If the husband intermeddles with the deceased wife’s estate, without taking out letters of administration, the revised statutes make him liable for her debts, upon the presumption that he has assets belonging to her estate to pay them.” Another almost parallel case is the case of Noble v. Thayer (19 App. Div.",
"446), where the court used, in part, the following language: “It appears that she died intestate, and it does not appear that any administrator has ever been appointed for her estate. Upon her death, however, her husband took the possession which she had under such lease and still holds the same, and he paid the rent to the lessor so long as he lived, and to the wife Anna for the amount *547due in 1894. Under such circumstances he may be deemed an assignee of the lease in possession, and would be liable for the rent as long as he remained in possession. (Frank v. N. Y., L. E., etc., R. R. Co., 122 N. Y. 197, 215. S.ee, also, Pugsley v. Aikin, 11 id. 494.) ” While in the instant case it is clear that the defendant did not pay any rent, she, nevertheless, had the full benefit of the plaintiff’s property, knowing it did not belong to her, and under those circumstances she cannot be held to accept the benefit of the occupancy without at the same time assuming the burden of paying the reasonable rent therefor. The defendant can also be held liable upon the theory urged by the plaintiff to the effect that she created herself substantially an assignee in possession.",
"In Mann v. Munch Brewery (225 N. Y. 189, at p. 193) Judge Crane said: “ Where a person other than the lessee is shown to be in possession of leasehold premises the law presumes that the lease has been assigned to him. It further presumes that the assignment was sufficient to transfer the term and to satisfy the Statute of Frauds. (Frank v. N. Y., Lake Erie & Western Railroad Company, 122 N. Y. 197.) ” And at page 195, he said: “The covenant to pay rent runs with the land.” By reason of the fact that the defendant appropriated to herself and to her own uses the benefits of this lease and occupied the premises without applying for administration of her late husband’s estate, she must have intended to bind herself personally for the value of the leased premises.",
"Judgment is awarded in favor of the plaintiff for $105, together with appropriate costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6157250/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1
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8 UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA
10
11 CESAR CONTRERAS-ARMAS, Case No. 3:18-cv-00387-HDM-WGC 12 Petitioner, ORDER 13 v. 14 RENEE. BAKER, et al., 15 Respondents. 16
17 Respondents having filed an unopposed motion for enlargement of time (third request)
18 (ECF No. 33), and good cause appearing;
19 IT THEREFORE IS ORDERED that respondents' unopposed motion for enlargement of
20 time (third request) (ECF No. 33) is GRANTED. Respondents will have up to and including
21 May 13, 2021, to file a response to the second amended petition (ECF No. 28).
22 DATED: May 10, 2021 23 ______________________________ HOWARD D. MCKIBBEN 24 United States District Judge 25
26
27
28 1 | 2021-05-10 | [
"1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CESAR CONTRERAS-ARMAS, Case No. 3:18-cv-00387-HDM-WGC 12 Petitioner, ORDER 13 v. 14 RENEE. BAKER, et al., 15 Respondents. 16 17 Respondents having filed an unopposed motion for enlargement of time (third request) 18 (ECF No. 33), and good cause appearing; 19 IT THEREFORE IS ORDERED that respondents' unopposed motion for enlargement of 20 time (third request) (ECF No. 33) is GRANTED. Respondents will have up to and including 21 May 13, 2021, to file a response to the second amended petition (ECF No. 28). 22 DATED: May 10, 2021 23 ______________________________ HOWARD D. MCKIBBEN 24 United States District Judge 25 26 27 28 1"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/169226849/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered June 4, .1996, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence: Ordered that the judgment is affirmed. The defendant’s contention that the evidence was legally and factually insufficient to establish that the complainant suffered physical injury as that term is defined in Penal Law § 10.00 (9) *468is without merit. As a result of the defendant’s repeated punches, the complainant sustained bruises to her face, abrasions, red marks, a black eye, a bump on the left side of her forehead, and pain that lasted “for a while”. After the incident, the complainant applied an ice-pack to her face and needed to take painkillers. In addition, the complainant explained that the bruises lasted about one and one-half weeks and that she experienced bad headaches since the incident. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see, Penal Law § 10.00 [9]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Rosenblatt, J. P., Altman, Florio and McGinity, JJ., concur. | 01-13-2022 | [
"—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J. ), rendered June 4, .1996, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence: Ordered that the judgment is affirmed. The defendant’s contention that the evidence was legally and factually insufficient to establish that the complainant suffered physical injury as that term is defined in Penal Law § 10.00 (9) *468is without merit. As a result of the defendant’s repeated punches, the complainant sustained bruises to her face, abrasions, red marks, a black eye, a bump on the left side of her forehead, and pain that lasted “for a while”. After the incident, the complainant applied an ice-pack to her face and needed to take painkillers. In addition, the complainant explained that the bruises lasted about one and one-half weeks and that she experienced bad headaches since the incident. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see, Penal Law § 10.00 [9]).",
"Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Rosenblatt, J. P., Altman, Florio and McGinity, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6020268/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Goss, C. J. This is a suit in equity commenced by the trustee in bankruptcy of the estate of Junius S. Donnell to cancel a real estate mortgage executed by Donnell and his wife, Una W. Donnell, within four months of the filing of separate petitions in bankruptcy against these mortgagors. It is a companion case to Herring v. Whitford, No. 27045, ante, p. 725, and reference is made to our opinion therein for a statement of the case and for our conclusions thereon. The pleadings were identical except that the trustee sued on behalf of the bankrupt husband here and for the estate of the wife in the other case. In both cases it was sought to cancel the same mortgage. The bills of exceptions are identical, one being a copy of the other. The decrees of the district court, however, were quite different. In the suit brought on behalf of the wife’s bankrupt *738estate, the mortgage to Whitford was canceled and the title to the property quieted in the trustee by the decree of the district court. In the present case, the findings of the decree, as shown in the record, are rather confusing; and the order of the court directs a foreclosure in favor of E. C. Whitford as to the east 50 feet of lots 1, 2, and 3, in block 10, of Ashland addition, but omits any reference to the remainder of those lots and to six other lots referred to in the findings and the evidence. These discrepancies evidently arise out of a misunderstanding as to what constituted the homestead, and out of the failure, in drawing the order, to make any reference to. the property involved other than the homestead lots. On the argument both parties agreed that the judgment of the district court would have to be reversed. The facts in the two actions are the same; the parties are in the identical position in this case they were in the one just preceding it; the only difference is that in that case the trustee in bankruptcy represented the estate of the wife and in this he represents the estate of the husband. The decisions in the two suits should be the same and our opinion in No. 27045 is incorporated herein in this case, No. 27046. For the reasons there given, the judgment appealed from in this cause should be reversed and the cause remanded, with instructions to render a decree allowing Whitford’s mortgage as a first lien to the extent of $2,000 on the same real estate as in No. 27045, found to be the homestead, and to allow a foreclosure thereof; and the decree should quiet the title in the trustee as to all the rest of the real estate and as- to the excess over the $2,000 homestead interest. Reversed. The following opinion on motion for rehearing was filed October 10, 1930. Rehearing denied. Heard before Goss, C. J., Rose, Dean, Good, Thompson, Eberly and Day, JJ. *739Goss, C. J. This is a companion case to Herring v. Whitford, ante, p. 725. Oral argument on the motion for rehearing was ordered and had. The printed motions and briefs for rehearing were identical and the ruling in this case must naturally follow that in the other. It is unnecessary to repeat the contents of the opinion in the other case, but it is by reference incorporated herein and made a part hereof. For the reasons there given, the motion for rehearing is denied. Rehearing denied. | 09-09-2022 | [
"Goss, C. J. This is a suit in equity commenced by the trustee in bankruptcy of the estate of Junius S. Donnell to cancel a real estate mortgage executed by Donnell and his wife, Una W. Donnell, within four months of the filing of separate petitions in bankruptcy against these mortgagors. It is a companion case to Herring v. Whitford, No. 27045, ante, p. 725, and reference is made to our opinion therein for a statement of the case and for our conclusions thereon. The pleadings were identical except that the trustee sued on behalf of the bankrupt husband here and for the estate of the wife in the other case. In both cases it was sought to cancel the same mortgage. The bills of exceptions are identical, one being a copy of the other. The decrees of the district court, however, were quite different.",
"In the suit brought on behalf of the wife’s bankrupt *738estate, the mortgage to Whitford was canceled and the title to the property quieted in the trustee by the decree of the district court. In the present case, the findings of the decree, as shown in the record, are rather confusing; and the order of the court directs a foreclosure in favor of E. C. Whitford as to the east 50 feet of lots 1, 2, and 3, in block 10, of Ashland addition, but omits any reference to the remainder of those lots and to six other lots referred to in the findings and the evidence. These discrepancies evidently arise out of a misunderstanding as to what constituted the homestead, and out of the failure, in drawing the order, to make any reference to. the property involved other than the homestead lots.",
"On the argument both parties agreed that the judgment of the district court would have to be reversed. The facts in the two actions are the same; the parties are in the identical position in this case they were in the one just preceding it; the only difference is that in that case the trustee in bankruptcy represented the estate of the wife and in this he represents the estate of the husband.",
"The decisions in the two suits should be the same and our opinion in No. 27045 is incorporated herein in this case, No. 27046. For the reasons there given, the judgment appealed from in this cause should be reversed and the cause remanded, with instructions to render a decree allowing Whitford’s mortgage as a first lien to the extent of $2,000 on the same real estate as in No. 27045, found to be the homestead, and to allow a foreclosure thereof; and the decree should quiet the title in the trustee as to all the rest of the real estate and as- to the excess over the $2,000 homestead interest. Reversed.",
"The following opinion on motion for rehearing was filed October 10, 1930. Rehearing denied. Heard before Goss, C. J., Rose, Dean, Good, Thompson, Eberly and Day, JJ. *739Goss, C. J. This is a companion case to Herring v. Whitford, ante, p. 725. Oral argument on the motion for rehearing was ordered and had. The printed motions and briefs for rehearing were identical and the ruling in this case must naturally follow that in the other. It is unnecessary to repeat the contents of the opinion in the other case, but it is by reference incorporated herein and made a part hereof. For the reasons there given, the motion for rehearing is denied. Rehearing denied."
]
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Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 1 of 30
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
vs.
ANTHONY J. THOMPSON, JR., JAY FUNG, and ERIC VAN NGUYEN,
Defendants, Case No.: 14-cv-9126 (ALC) and
JOHN BABIKIAN and KENDALL THOMPSON,
Relief Defendants,
NEW YORK COUNTY DISTRICT ATTORNEY,
Intervenor.
MEMORANDUM OF LAW OF DEFENDANT ANTHONY THOMPSON IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
335 Madison Avenue, 12th Floor New York, New York 10017 (212) 344-5680 Attorneys for Anthony J. Thompson, Jr. Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 2 of 30
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................ 1 BACKGROUND .......................................................................................................................................... 4 A. OTC Solutions and the Promotional Newsletters ............................................................................... 4 B. The Prior Florida Action ..................................................................................................................... 7 C. Mr. Thompson’s Counsel’s Negotiation and Resolution of the Florida and New York Actions........ 8 1. The Florida Action .................................................................................................................... 8 2. The New York Proceedings ...................................................................................................... 9 3. The DOE Reneges on Its Own Agreement, Refusing to Present or Recommend the Settlement ................................................................................................................................ 13 D. The Pending Complaint..................................................................................................................... 14 E. The District Court’s Decision ........................................................................................................... 14 F. The Criminal Plea ............................................................................................................................. 15 ARGUMENT .............................................................................................................................................. 16 POINT I BECAUSE THE SEC HAS FAILED TO DEMONSTRATE THAT THERE ARE NO ISSUES OF FACT PERTAINING TO MR. THOMPSON’S DEFENSES, SUMMARY JUDGMENT SHOULD BE DENIED ...................... 16 POINT II THERE ARE MATERIAL FACTS IN DISPUTE REGARDING WHETHER THE SEC’S CLAIMS ARE BARRED BY THE NEW YORK SETTLEMENT ......... 20 POINT III BY VIRTUE OF THE PLEA IN THE CRIMINAL CASE, THE SEC WOULD BE ENTITLED TO JUDGMENT RELATING TO RECYCLE TECH AND BLUE GEM .......................................................................................................... 20 POINT IV THE SEC HAS FAILED TO DEMONSTRATE THAT IT WOULD BE ENTITLED TO DISGORGEMENT OF ANY AMOUNT OTHER THAN $200,000 RELATING TO BLUE GEM ............................................................... 21 1. Disgorgement of Blue Gem Amounts Received by Mr. Thompson ....................................... 21 2. Penalties and Injunctive Relief Should Not Be Awarded........................................................ 22 CONCLUSION ........................................................................................................................................... 25
i Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 3 of 30
TABLE OF AUTHORITIES
Page(s)
Cases
7 W. 57th St. Realty Co., LLC v. CitiGroup, Inc., No. 13 Civ. 981 (PGG), 2015 U.S. Dist. LEXIS 44031 (S.D.N.Y. Mar. 31, 2015) ........................................................................................................18
EDP Med. Computer Sys. Inc. v. United States, 480 F.3d 621 (2d Cir. 2014).....................................................................................................18
Honeycutt v, United States, 137 S. Ct. 1626 (2017) .............................................................................................................22
Kokesh v. SEC, 137 S. Ct. 1635 (2017) .............................................................................................................22
Mademoiselle Knitwear, Inc. v. Liz Claiborne, Inc., No. 98 Civ. 3252 (HB), 1999 U.S. Dist. LEXIS 8592 (S.D.N.Y. June 9, 1999).....................18
Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102 (2d Cir. 2015).....................................................................................................17
SEC v. Alternative Green Techs. Inc., No. 11 Civ. 9056 (SAS), 2014 U.S. Dist. LEXIS 173251 (S.D.N.Y. Dec. 15, 2014)...................................................................................................21, 23
SEC v. Balboa, No. 11 Civ. 8731 (PAC), 2015 U.S. Dist. LEXIS 87281 (S.D.N.Y. July 6, 2015) ...........................................................................................................23
SEC v. Banner Fund Int’l, 211 F.3d 602 (D.C. Cir. 2000) .................................................................................................21
SEC v. Church Extension of the Church of God, 429 F. Supp. 2d 1045 (S.D. Ind. 2005) ....................................................................................22
SEC v. Conaway, 695 F. Supp. 2d 534 (E.D. Mich. 2010)...................................................................................23
SEC v. Druffner, 802 F. Supp. 2d 293 (D. Mass. 2011) ......................................................................................23
SEC v. Elliot, No. 09 Civ. 7594 (KBF), 2012 U.S. Dist. LEXIS 82992 (S.D.N.Y. June 12 2012)..........................................................................................................24
ii Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 4 of 30
SEC v. First AmeriFirst Funding Inc., No. 3:07-cv-1188-D, 2008 U.S. Dist. LEXIS 36782 (N.D. Tex. May 5, 2008) ......................22
SEC v. First Jersey Sec., Inc., 101 F.3d 1450 (2d Cir. 1996)...................................................................................................21
SEC v. GTF Enters., No. 10-cv-258 (RA), 2015 U.S. Dist. LEXIS 20355 (S.D.N.Y. Feb. 19, 2015) .....................24
SEC v. Haligiannis, 470 F. Supp. 2d 373 (S.D.N.Y. 2007)......................................................................................22
SEC v. IShopNoMarkup.com.Inc., 126 F. Supp. 3d 318 (E.D.N.Y. 2015), aff’d, 694 F. App’x 853 (2d Cir. 2017)......................24
SEC v. Lewis, 492 F. Supp. 2d 1173 (D.S.D. 2007) .......................................................................................22
SEC v. McCaskey, 2002 U.S. Dist. LEXIS 4915 (S.D.N.Y. Mar. 26, 2002) .........................................................22
SEC v. Perez, No. 09-cv-21977, 2011 U.S. Dist. LEXIS 132965 (S.D. Fla. Nov. 17, 2011) ........................23
SEC v. Tavella, 77 F. Supp. 3d 353 (S.D.N.Y. 2015)........................................................................................22
Simmtech Co. v. Citibank, N.A., No. 13-cv-6768 (KBF), 2016 U.S. Dist. LEXIS 102698 (S.D.N.Y. Aug. 3, 2016), aff’d, 697 F. App’x 35 (2d Cir. 2007) ......................................17, 19
Smith v. City of New York, 130 F. Supp. 3d 819 (S.D.N.Y. 2015), aff’d, 664 F.App’x 45 (2d Cir 2016) ..........................18
Utility Audit Group v. Capital One, N.A., No. 14-cv-0097 (SJF)(GRB), 2015 U.S. Dist. LEXIS 40816 (E.D.N.Y. Mar. 26, 2015) ..................................................................................................17, 18
Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992).......................................................................................................18
iii Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 5 of 30
INTRODUCTION
By this motion, the plaintiff seeks partial summary judgment predicated on a plea that
was entered by Anthony Thompson in a criminal case in New York County. While the plaintiff
would ordinarily be entitled to some relief based on the entry of a criminal plea, here the plaintiff
asks for far more than it is entitled to receive. As discussed below, the criminal plea was
expressly limited to two particular transactions, Recycle Tech and Blue Gem Enterprises (“Blue
Gem”), and the SEC would be entitled to judgment only as to those two transactions which were
the basis for and “essential” to the criminal resolution. A judgment already exists as to Recycle
Tech and so that leaves only the transaction involving Blue Gem. Further, the amount of
disgorgement should be limited to that which was actually received by Mr. Thompson, as
opposed to all amounts received by the entity that published the newsletters. Absent other
factual issues in dispute, therefore, plaintiff would be entitled to disgorgement order relating to
Blue Gem.
However, the plaintiff’s current motion also implicates broader issues arising from the
extensive prior proceedings relating to this case, the related defenses, and the extent to which
issues of fact pertaining to those defenses precludes a grant of summary judgment. In 2012, an
action was commenced by the SEC against Anthony Thompson and others in the United States
District Court for the Southern District of Florida (the “Florida Action”) – the jurisdiction in
which these transactions originated. Thompson Motion to Dismiss: ECF 42. In that action, the
SEC alleged that Mr. Thompson had engaged in improper conduct through his dissemination of
promotional newsletters during the period from January 2009 through 2010 in transactions
orchestrated by Kevin Sepe. Exhibit B to Pizzani Dec. (ECF No. 54-2): Amended Complaint in
SEC v. Recycle Tech Inc., et al., No. 12-cv-21656 JAL (S.D. Fla.) (“Florida Complaint”). The
Florida Complaint focused on one particular issuer, Recycle Tech, but the SEC successfully
1 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 6 of 30
argued to the district court that its case against Mr. Thompson encompassed the series of
transactions that all stemmed from the activities of Kevin Sepe, all involved the same key
participants, and shared the same “common components.” SEC Opp. to Motion to Dismiss (ECF
No. 53) at 4-6). Because of those other related transactions, the SEC maintained, it was entitled
to the harsher injunctive relief that it ultimately obtained. And those related transactions that
were the subject of litigation in Florida include but are not limited to the transactions that are the
subject of the instant complaint: Blue Gem, Mass Hysteria, Lyric Jeans and Smart Holdings.
In this case, the SEC is entitled to summary judgment only if it has demonstrated that
there is no material issue of fact concerning whether its present action is barred by those prior
proceedings. The SEC has argued in discussions with this Court that the District Court, Judge
Katherine Forrest, previously denied the defendant’s motion for judgment, but that prior decision
does not end the discussion as to the impact of the SEC’s arguably duplicative proceedings. The
district court’s prior decision appears to have been predicated on the fact that the SEC, plainly
mindful of the issue of res judicata, scrupulously avoided even a mention of Kevin Sepe in its
New York Complaint, and so the Court could not conclude that the matters at issue in New York
involved the same set of Sepe transactions such that it would preclude the pending claims.
Discovery has confirmed that this case really is a rehash of the issues and transactions that were
dealt with in the Florida case. As a result, the SEC has not and cannot demonstrate that it is
entitled to prevail on Mr. Thompson’s defense of res judicata.
In addition, the Florida proceedings involving the SEC were followed by efforts to
resolve the investigation being conducted by the New York office of the SEC which also form
the basis for a defense asserted by Mr. Thompson. As of December 2013, Mr. Thompson had
spent more than a year litigating the Florida Action and addressing the New York Proceeding.
2 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 7 of 30
Counsel for Mr. Thompson had repeatedly maintained, in discussions with the New York office
of the SEC, that its investigation was an impermissible duplication of the Florida Action, but the
SEC in New York had refused to cede the matter to Florida or curtail their own investigation. At
that point, Mr. Thompson’s counsel entered into settlement discussions with the SEC in Florida.
Because it made no sense for Mr. Thompson to settle one of the two proceedings if the other
virtually identical matter was going to continue, counsel for Mr. Thompson also commenced
negotiations with the New York office. After discussions in December 2013, the SEC attorneys
in New York forwarded to counsel a term sheet setting out the salient provisions of an
agreement, and insisted that Mr. Thompson transfer $345,000 into escrow for disgorgement in
order to proceed with the memorializing of the agreement. As of January 15, 2014, those funds
were transferred by the defendant. The SEC then forwarded an Offer of Settlement prepared by
SEC attorneys, that Offer of Settlement was finalized and executed, and Mr. Thompson’s
counsel was assured by the SEC in New York that the SEC’s Department of Enforcement
(“DOE”) would present and recommend that resolution to the Commission for final approval.
Months then passed. The SEC in New York continued to assure Mr. Thompson’s
counsel that the settlement was “moving forward.” Then, in August 2014, the SEC abruptly
communicated to counsel for Mr. Thompson that it was refusing to proceed with the settlement.
Notably, the reason that it put forth for its refusal – that it had “new” information regarding his
involvement with other promotions – was patently inconsistent with the specific and written
discussions with the SEC attorneys that had occurred during the negotiations. In reality, the only
changed circumstance appeared to be the fact that, in or about July 2014, the lead defendant,
Kevin Sepe, agreed to cooperate and the New York County District Attorney’s Office decided to
move forward with a criminal case. In light of those developments, the SEC apparently decided
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that it would rather proceed with a parallel civil action, following behind the criminal indictment,
rather than settle with the defendant, and it filed this action.
Judge Forrest also considered those circumstances, and concluded that the defendant was
not entitled to judgment but she did not attempt to resolve the relevant factual issues. To the
contrary, she expressly stated that those facts raise a triable issue of fact in relation to the
defenses asserted by Mr. Thompson.
BACKGROUND
A. OTC Solutions and the Promotional Newsletters
The Florida Action and this New York Proceeding arise from a particular series of
transactions that were originated by Florida businessman Kevin Sepe in 2009 and 2010 in which
companies related to Mr. Thompson, Microcapster and OTC Solutions, were hired to
disseminate promotional newsletters. As discussed in the New York Complaint, Mr. Thompson
disseminated promotional newsletters regarding “penny stock” companies to subscribers who
had “double opted in” to his free penny stock newsletters.1 Mr. Thompson’s business did not
engage in spam, or distribute any unsolicited communications. Instead, he set out, beginning in
June 2009, to develop a subscriber database, made up of individuals who specifically sought to
receive information about penny stocks. That process began with internet advertising, targeted
to web users who had entered particular search terms suggesting that they might be interested in
receiving communications from newsletters with names like “Penny Stock Picks.” If the internet
user clicked on the advertisement, he or she would be invited to enter their email address and
sign up for a newsletter. The enrollment process even then was not complete; the internet user
1 The SEC’s New York Complaint refers to the following companies: Blast Applications, Inc. (“Blast Applications”), Smart Holdings, Inc. (“Smart Holdings”), Blue Gem Enterprise, Inc. (“Blue Gem”), Lyric Jeans, Inc. (“Lyric Jeans”), and Mass Hysteria Entertainment Company, Inc. (“Mass Hysteria”). All of the transactions except Blast Applications originated with and involved Kevin Sepe.
4 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 9 of 30
had to “double opt in” – by confirming again that they indeed wanted to receive the newsletter –
before he or she would be added to the subscriber list.
Those newsletters constitute precisely the kind of “touting” activity that is contemplated
and governed by a particular provision of the federal securities laws, Section 17(b) of the
Securities Act of 1933, and Mr. Thompson’s website and his newsletters included lengthy
disclosures that contained the information called for by Section 17(b), i.e., the fact that it was a
paid promotion, the fact that he had received stock as compensation for the promotion, and the
fact that he was able to sell the stock during the promotion. From the outset, Mr. Thompson
worked closely with experienced attorneys who advised him regarding the content of his
disclosures and reviewed his newsletters. As of June 2009, Mr. Thompson reached out for
advice from attorneys Hank Gracin and Leslie Marlow, both established securities attorneys with
a combined total of more than 50 years’ experience who partnered to form Gracin & Marlow,
LLP. As explained by Ms. Marlow in sworn testimony in both the Florida and the New York
Action, she believed and advised Mr. Thompson that “the most important thing” in relation to
disclaimers is “that the public know, even if it’s not stock, that somebody is compensated, and
that they’re biased because that tells me that this is a paid promotion and that somebody is
showing you one side of things, basically.” Exhibit 1 to the Declaration of Maranda Fritz (“Fritz
Dec.”) at Exhibit 1: Transcript of Sept. 16, 2013 Deposition of Leslie Marlow (“Marlow Tr.”)
103:11-20.
Based on the advice from counsel, the newsletters, literally in bold print, told the
subscribers “to conduct their own due diligence,” and then included the detailed disclaimer,
stating that “investing in penny stocks is highly speculative,” an investor should “never”
purchase the profiled security unless he “can afford to lose [his] entire investment,” and that the
5 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 10 of 30
reader agreed to hold the website harmless from any loss. The newsletters explained the source
of the information about the company, stating that it is “provided by the companies profiled” or
publicly available, that the information is “not guaranteed,” that it “does not purport to be a
complete statement or summary of available data.” And the newsletters disclosed that the
publisher received compensation (and the amount of it), and that it may sell “part or all” of the
shares that it received “during the period of the promotion.” Exhibit 2 to Fritz Dec:
ExplicitPicks.com Newsletter/Blue Gem.
Mr. Thompson’s continuing efforts to comply with industry regulations is reflected in an
email communication in February 2010:
Leslie and Hank,
As always I want to stay compliant with SEC regs regarding disclosure. Do you think we are taking the necessary steps? We are disclaiming all compensation in emails and on our website while many sites simply disclose in their emails. We are not doing work with any pink sheets so as to only deal with fully reporting companies. We are keeping logs of our due diligence on the companies and sectors they are in.
I stay up at night sometimes wondering if we are doing enough. I feel like we are and I feel like we do more than our competitors. The biggest emailer out there right now is a 23 year old kid who I was told just made $7 mill on a stock PEPR that didn’t do so well. I looked at his email disclaimer and he indicated that he was paid $50,000 on SKTO, not even the right company. To me I see that kind of behavior and I think to myself, that kid is going to get smoked!
Id. at Exhibit 3: Email from Thompson to Gracin and Marlow, Feb. 21, 2010.
Mr. Thompson not only continued to work with Gracin & Marlow but also sought the
advice of attorneys at Parsons Behle & Latimer including Brent Baker, formerly with the
Division of Enforcement (“DOE” or “Division”) of the SEC. In March 2010, Mr. Thompson
asked Mr. Baker to “review our site disclaimers for Eric, Jay and myself” and “let me know if
you think they are strong enough or if we need to make additions.” Id. at Exhibit 4: Email from
Thompson to Baker, Mar. 25, 2010. Leslie Marlow and the Parsons firm then worked together
6 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 11 of 30
and prepared a revised disclaimer which, again, emphasized that the newsletter was part of a
promotional campaign and included the extensive warnings about the risk of speculative
securities and a statement concerning compensation. Id. at Exhibit 5: Email between Marlow
and Taylor, April 30, 2010-May 10, 2010.
As Ms. Marlow confirmed in her testimony in the Florida Action, “Mr. Thompson was
very concerned about making sure he complied with anything that the SEC would have wanted
him to comply with. I mean, that was the purpose of hiring me in the first place.” Id. at Exhibit
1, 80:7-12. Ms. Marlow explained again, later in her testimony, that Mr. Thompson “wanted to
make sure he was doing everything that somebody would have thought was appropriate in
accordance with the SEC regulations on the promotions.” Id. at 95:24-96:3.
B. The Prior Florida Action
In the Florida Action, the Commission alleged, inter alia, that Thompson and OTC
participated in a pump-and-dump scheme, “concocted” and “orchestrated” by Kevin Sepe. The
SEC alleged in the complaint that Thompson, OTC Solutions and others were hired by Sepe to
promote Recycle Tech stock through electronic newsletters, in exchange for shares of Recycle
Tech stock. Although the complaint in the Florida Action focused on a particular company,
Recycle Tech, it quickly became clear that the scope of that action was much broader: it included
the time period from January 2009 through December 2010 and it extended to all of the other
companies that involved Sepe including Blue Gem, Lyric Jeans and Mass Hysteria.2
Because both the Florida and New York offices of the SEC were focusing on and
demanding information regarding the same set of transactions, Mr. Thompson’s counsel objected
to the duplicative demands and proceedings. The Florida court then asked the SEC to explain
2 Exhibit 1 to the Fritz Decl. at Exhibit 11: Deposition of Anthony Thompson, October 15, 2013, pp. 71-74, 91-93, 198-200, 205-06, 223-26, 238-39.
7 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 12 of 30
the scope of its requests and their relevance to the Florida Action. The SEC responded that its
case encompassed the “numerous promotional campaigns,” particularly those involving “the
main architect of this whole fraud,” Kevin Sepe. Id. at Exhibit 14: Tr. of Hearing of October
31, 2013 at 53:8-57:18. Based on the SEC’s assertion that the Florida Action included not just
Recycle Tech but the “numerous promotional campaigns” involving Kevin Sepe, the Court held
that the documents regarding Blue Gem, Mass Hysteria, Lyric Jeans and Smart Holdings were
“relevant and discoverable.”3 Thus, the SEC prevailed in its assertion that the transactions at
issue in this case were part of the Florida Action.4
Having received and presumably reviewed those documents, the SEC in the Florida
action obviously could have, but declined to, amend its complaint.
C. Mr. Thompson’s Counsel’s Negotiation and Resolution of the Florida and New York Actions
1. The Florida Action
After the SEC in the Florida Action was able to persuade the court that all of the Sepe
transactions were properly included in its case and were relevant to its demand for injunctive
relief, the parties resumed their settlement discussions. Counsel for Mr. Thompson agreed to full
injunctive relief including a penny stock bar, and an agreement to settle the Florida Action was
reached in mid-January of 2014. Pursuant to the parties’ settlement agreement, at the SEC’s
insistence, Thompson and OTC deposited $493,239.76 into counsel’s trust account to cover the
agreed-upon amount for disgorgement, prejudgment interest and civil penalties, and entered into
Consents of Final Judgment of Permanent Injunction and Other Relief, drafted by the SEC, filed
3 Id. at Exhibit 15: Order on Informal Discovery Conference, October 31, 2013. 4 Thompson and OTC subsequently responded to those discovery demands, as ordered by the Court, relating, inter alia, to Blue Gem, Mass Hysteria and Lyric Jeans. See id. at Exhibit 16: OTC’s Responses to the Commission’s Second Set of Interrogatories; id. at Exhibit 17: Thompson’s Responses to Commission’s Second Set of Interrogatories; id. at Exhibit 18: OTC’s Responses to Second Requests for Production of Documents; id. at Exhibit 19: Thompson’s Responses to Second Requests for Production of Documents.
8 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 13 of 30
on January 13, 2014 (the “Consents”).5 Pursuant to the Consents, Thompson and OTC, without
admitting or denying the allegations in the Complaint, consented to entry of a final judgment
that, inter alia, (a) permanently restrains and enjoins them from violations of Sections 5(a), 5(c)
and 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5; (b) orders
payment of disgorgement in the amount of $349,504.61 plus prejudgment interest thereon in the
amount of $23,735.15, jointly and severally; (c) orders payment of a civil penalty of $120,000,
jointly and severally; and (d) imposes a penny stock bar.6
2. The New York Proceedings
Given the fact that two SEC regional offices were focused on the same conduct, Mr.
Thompson was adamant that any settlement would have to include both the Florida Action and
the New York Proceeding. To that end, on December 16, 2013, counsel for Thompson emailed
Peter Pizzani (Senior Counsel at the DOE in New York) to try to “schedule a time to talk about
the status of this matter and [a] possible resolution.” Id. at Exhibit 26: Emails dated December
16, 2013-December 20, 2013. Mr. Pizzani responded to this email on December 16, 2013,
copying other counsel for the DOE (Michael Osnato, then assistant director of the New York
Regional Office), confirming that DOE would be “willing to discuss and ultimately recommend”
a resolution that included an antifraud injunction, a penny stock bar and collateral bars,
disgorgement, and payment of a penalty. Id.
On December 19, 2013, counsel for Thompson responded to Mr. Pizzani’s December 16,
2013 email, stating that he had spoken to the client, that the client was “genuinely open to
discussing the terms you laid out in your email,” and suggesting a conference call the following
5 See id. at Exhibit 20: Trust Agreement, January 14, 2014; id. at Exhibit 21: Consent of Defendant Anthony Thompson to Final Judgment of Permanent Injunction and Other Relief; id. at Exhibit 22: Consent of Defendant OTC Solutions LLC to Final Judgment of Permanent Injunction and Other Relief. 6 See id. at Exhibit 23: Final Judgment of Permanent Injunction and Other Relief as to Anthony Thompson; id. at Exhibit 24: Final Judgment of Permanent Injunction and Other Relief as to OTC Solutions LLC.
9 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 14 of 30
day. Id. Counsel for Thompson spoke with Mr. Pizzani and Mr. Osnato regarding settlement on
December 20, 2013.
Following further discussions, on January 7, 2014, the Division (through Mr. Pizzani)
sent counsel for Thompson a settlement term sheet. Id. at Exhibit 28: Letter & Term Sheet.
Notably, in the January 7, 2014 letter, Mr. Pizzani made clear he was expressing the position of
the DOE, and had actual authority to negotiate and enter into settlement agreements on behalf of
the DOE, with the settlement subject only to approval by the Commission:
As you know, any settlement must be approved by the full Commission and the terms outlined herein are representative only of the position of the Division of Enforcement. The staff will not recommend any settlement offer until we receive proof that all funds to [sic] paid pursuant to the proposed settlement have been placed in escrow.
Id. (emphasis added).
Counsel for Mr. Thompson made revisions to the term sheet in redline and returned it to
Mr. Pizzani and Mr. Osnato on January 9, 2014. Among the changes, Thompson sought
confirmation that any settlement would cover “any and all claims arising from the Commission’s
investigation pursuant to a formal order of investigation in re Blast Applications, Inc. (NY-
8264),” with the exception of claims in the Recycle Tech Action. Id.
Counsel for Thompson had several telephone calls with Mr. Pizzani and Mr. Osnato
regarding settlement and the term sheet in the week after January 7, 2014. During one of these
calls, Mr. Osnato and Mr. Pizzani confirmed that the settlement would extend to all conduct that
was under investigation in the New York Proceeding, and agreed to reduce the total settlement
amount for disgorgement, penalties and interest to approximately $345,000 (plus interest through
August 13, 2013), as requested by Thompson. Mr. Osnato suggested that the parties effectuate
settlement by an Offer of Settlement, rather than the term sheet originally proposed by the DOE.
Mr. Osnato further indicated the DOE would prepare an Offer of Settlement if Thompson would
10 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 15 of 30
deposit the settlement funds into counsel’s trust account. Thompson’s counsel agreed with this
approach.
At that point in January 2014, Mr. Thompson understood that there was an agreement on
the essential terms in relation to both the New York and Florida actions and so he proceeded to
finalize both. On January 13, 2014, the settlement documents in the Florida Action were
executed and, on January 15, 2014, counsel for Thompson emailed Mr. Pizzani in New York to
inform him that “[t]he money ($345,000 plus amount roughly equal to prejudgment interest
through August 2013) is in [sic] currently my trust account for use in settling this matter subject
to consideration and approval by the Commission.” Id. at Exhibit 29: Email Baker/Pizzani
January 15, 2014. The New York DOE attorneys then drafted and sent a proposed Offer of
Settlement to counsel for Thompson by email. Id. at Exhibit 30: Email communication dated
January 15, 2014. That proposed Offer of Settlement failed to include that parties’ agreement
that the settlement covered all of the companies and conduct being investigated by the SEC and
so counsel for Thompson proposed changes to the Offer of Settlement to ensure it correctly
identified the scope of the settlement agreed upon by the parties.
After trading further drafts of the Offer of Settlement, counsel for Thompson had a phone
call with Mr. Pizzani, Mr. Osnato and Thomas Smith (Assistant Regional Director in the New
York Office) regarding settlement on March 28, 2014. During the conversation, Mr. Osnato
suggested that the parties enter into separate agreement to confirm that the settlement included
all companies and conduct under investigation, rather than making further amendments to the
Offer of Settlement. Id. at Baker Decl. ¶ 26.
Following the March 28, 2014 telephone call, counsel for Thompson emailed Mr. Pizzani
to confirm their conversation:
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[A]s we have discussed several times as part of our settlement negotiations, our understanding is that this Offer of Settlement/Agreement is meant to cover all of the legal and factual issues referenced in all subpoenas issued under the Formal Order of Investigation in the Matter of Blast Applications, Inc. (NY-8264). Can the Staff please confirm that our understanding is correct and consistent with the scope of the recommendation being presented by the Staff to the Commission in this matter.7
Id. at Exhibit 25: March 28, 2014 Email.
Mr. Pizzani responded to this email, copying Mr. Osnato and Thomas Smith, the same
day as follows: “This will confirm that your understanding is correct and consistent with the
scope of the recommendation being presented to the Commission.” Id. (emphasis added).
After that separate agreement was confirmed, Thompson agreed to execute and deliver
the Offer of Settlement as drafted by the DOE. The SEC later sought some additional revisions,
and Thompson submitted the fully executed Offer of Settlement to the Division on June 6, 2014.
Id. at Exhibit 31: Offer of Settlement.
After delivering the executed Offer of Settlement, counsel for Thompson contacted Mr.
Pizzani on several occasions to determine the status of the settlement and to see when the Offer
of Settlement would “get into the queue to be approved by the Commission.” Id. at Exhibit 32:
Email from Brent Baker dated July 16, 2014. Mr. Pizzani did not give any indication that there
were any problems with the settlement, or that additional approval was necessary from within the
Division itself. Rather, he responded, simply, “It is being moved along,” and “things were
delayed because we were waiting for the other offer [from Fung and Pudong].” Id.
At all relevant times during the settlement discussions, the Division Staff—including
through Mr. Pizzani, Mr. Osnato and Mr. Smith—represented, through statements and actions,
7 Those subpoenas in the New York investigation had referenced Blast Applications, all of the Sepe transactions that appear in this Complaint, and various other promotional campaign during that time period. Id. at Baker Decl. ¶ 35 and Exhibits 33 and 34.
12 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 17 of 30
that they had full and actual authority to negotiate and enter into a settlement on behalf of the
DOE and agree to recommend that settlement to the Commission.
Thompson understood - based on the representations of the DOE - that the DOE had
agreed to and was in the process of presenting the executed Offer of Settlement to the
Commission for approval, accompanied by the recommendation of the DOE that the
Commission accept the Offer.
3. The DOE Reneges on Its Own Agreement, Refusing to Present or Recommend the Settlement
Unexpectedly, in two telephone calls in August 2014, Thomas P. Smith and Peter Pizzani
of the DOE in New York advised counsel for Thompson that they had not submitted, and would
not be submitting, the Offer of Settlement to the Commission with a recommendation to approve
the settlement. Mr. Smith and Mr. Pizzani told counsel for Thompson that they were refusing to
go forward with the agreement because they had “come to learn of new information” since the
time the agreement was negotiated. Id. at Baker Decl. ¶ 34. This new information, they stated,
consisted of the fact that Mr. Thompson had engaged in the same conduct but with respect to
“newly discovered” issuers - Smart Holdings, Mass Hysteria, Blue Gem and Lyric Jeans.” Id.
That claim was contrary to the DOE’s multi-year investigation, the broad scope of the
investigative subpoenas, and the express agreement with DOE incorporating and covering those
other transactions. Id. ¶ 35 and Exhibits 33 and 34.
On August 18, 2014, counsel for Thompson and Fung had an escalation call with DOE
Staff and the Director of the Division of Enforcement, Andrew Ceresney, regarding the DOE’s
attempted repudiation of its agreement to submit the Offer of Settlement to the Commission and
to recommend settlement. During that escalation call, and at a subsequent meeting with counsel,
Mr. Ceresney insisted that any agreement negotiated by DOE Staff is final and binding only if
13 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 18 of 30
approved by him. Id. ¶ 36. Mr. Ceresney stated that the DOE had no obligation to honor its
agreement to submit the Offer of Settlement to the Commission, and recommend its approval,
because he had not approved it – an assertion that contradicted the representations made by the
DOE Staff, including Mr. Pizzani, Mr. Osnato and Mr. Smith, in negotiating and entering into
the agreement on behalf of the DOE with Mr. Thompson. Id.
D. The Pending Complaint
It was after the repudiation of that agreement that, on November 17, 2014, the SEC filed
its Complaint in this action. The Complaint states that it deals with the period November 2009
through September 2010 --a period encompassed by the Florida Action -- and deals with five
particular stocks – including the same transactions that related to Kevin Sepe and that were part
of the document demands and testimony in the Florida Action. Complaint ¶ 1. The Complaint
alleges violations of Section 17(a) and (b) and Section 10(b) and Rule 10b-5, just like the
Florida Action. Those claims are based on the allegations that Mr. Thompson’s newsletters were
“misleading” because they disclosed that he “may” or “might” sell stock that he had received,
and failed adequately to disclose his compensation, just like the Florida Action. Id. ¶¶ 3, 5.
E. The District Court’s Decision
At the urging of the SEC, the District Court denied Mr. Thompson’s motions to dismiss
regarding the prior Florida action and the New York agreement.8 With respect to the issue of res
judicata, the District Court appeared to rely on the facts that the particular transactions at issue in
the New York case were “not mentioned in the Florida Complaint” while the New York
Complaint did not allege the role of Kevin Sepe and his associates or even mention them. ECF
No. 64: Opinion at 22. Instead of focusing on the fact that all of the Sepe transactions were
8 Because the defendant was relying on filings from the Florida Action and other documents, the Court converted the motion into one for summary judgment.
14 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 19 of 30
actually at issue in the Florida Action, and that res judicata applies where the subsequent claim
was or could have been asserted in the first proceeding, the District Court stated that “for
purposes of res judicata, the scope of litigation is framed by the complaint at the time it is filed.”
Opinion at 25.
With respect to Mr. Thompson’s settlement agreement with the DOE, the District Court
did not address the specific issue of whether the DOE was bound by its clear agreement to
present and to recommend a settlement to the Commission. Opinion at 26. The Court confirmed
that there were, in any event, “triable issues” of fact concerning the operation of estoppel or
breach. Opinion at 26.
F. The Criminal Plea
As had been anticipated, the SEC’s decision to refuse to proceed with the settlement was
predicated on its learning that, after extensive delays, the New York County District Attorney’s
Office (“DA’s Office”) had procured the cooperation of Keven Sepe and was proceeding with an
indictment of Mr. Thompson and others. That Indictment was filed on September 11, 2014, and
contained more than 80 charges ranging from a B to an E level felony. From 2014 on, that
action was litigated in New York State Supreme Court and as of August 2017 only 7 E felony
counts remained. At that point, the DA’s Office offered Mr. Thompson the opportunity to plead
to two particular transactions, Recycle Tech and Blue Gem, and pay a total of $896,000.00, and
receive a sentence of a conditional discharge. As part of a “repleader” arrangement, Mr.
Thompson also plead guilty to one count of a Martin Act Scheme to Defraud; that plea would be
withdrawn upon payment of the settlement amount. Mr. Thompson was given one year to pay
the settlement figure of $896,000.00.
As we have previously advised this Court, Mr. Thompson was ultimately not able to pay
that amount. Years earlier, in 2010 and 2011, the Thompson family had established trusts and
15 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 20 of 30
the income earned by Mr. Thompson from his business and real estate that was purchased was
placed into two trusts. Since he was indicted by the DA’s Office in 2014, Mr. Thompson had
lost any ability to earn significant income, and the family had accessed the funds in trust to pay
virtually all of the expenses for Mr. and Mrs. Thompson and their three young children. Over
the same time period, Mr. Thompson’s marriage failed, and his ex-wife became increasingly
determined to gain control of any assets that remained. After Mr. Thompson entered into the
agreement with the D.A.’s Office in 2017, she filed litigations designed to prevent any
disbursements from the trusts of funds to pay the disgorgement, although the funds in that trust
were the direct proceeds of the transactions at issue in the SEC and in the charges filed in New
York. Ultimately she prevailed in those litigations and her father now controls the trusts. As a
result, the amounts set forth in the agreement with the D.A. were never paid. Because those
amounts were not paid, Mr. Thompson was then sentenced to serve a year in jail, and he is
currently incarcerated.
ARGUMENT
POINT I
BECAUSE THE SEC HAS FAILED TO DEMONSTRATE THAT THERE ARE NO ISSUES OF FACT PERTAINING TO MR. THOMPSON’S DEFENSES, SUMMARY JUDGMENT SHOULD BE DENIED
Mr. Thompson has, from the outset, asserted as a defense that the SEC’s claims in this
case are barred under the doctrine of res judicata. Defendant established that the SEC, in two
different proceedings, pursued claims and sanctions that are predicated on a series of transactions
involving the same individuals during the same time period; the SEC in the Florida Action even
litigated whether all of these transactions were properly part of that proceeding, and won. All of
the Sepe transactions, including Recycle Tech and Blue Gem, were specifically addressed in that
case, and relief was expressly sought based on those same transactions.
16 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 21 of 30
Notably, the defense relied in large part on a decision issued by the District Court that
was overseeing this case, Judge Katherine B. Forrest. That decision confirmed that res judicata
“precludes the parties or their privies from relitigating issues that were or could have been
raised in that action.” Simmtech Co. v. Citibank, N.A., No. 13-cv-6768 (KBF), 2016 U.S. Dist.
LEXIS 102698, at *17 (S.D.N.Y. Aug. 3, 2016), aff’d, 697 F. App’x 35 (2d Cir. 2007) (internal
citations omitted) (emphasis added). In that decision, Judge Forrest addressed specifically the
application of res judicata in the context of claims that had not been asserted in a prior litigation.
The plaintiff there insisted that the prior litigation “focused” on particular aspects of the prior
transactions and so its current claims were not precluded. Judge Forrest disagreed, stating that
“[a]s long as the later claim arose ‘out of the same factual grouping as an earlier litigated claim,’
it is barred even if it ‘is based on different legal theories or seeks dissimilar or additional relief.’”
Id. at *20.
The bottom line is that plaintiff cannot slice and dice its theories into separate lawsuits. The doctrine of res judicata applies ‘not only to what was pleaded but also as to what could have been pleaded.’ The claims in this action could have been pleaded in the [prior] action. Plaintiff chose not to do so, and cannot have a second bite at the apple.
Id. at *23 (internal citation omitted). See also Marcel Fashions Grp., Inc. v. Lucky Brand
Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (held that doctrine precludes not only
litigation of claims raised and adjudicated in a prior litigation between the parties (and their
privies) but also of claims that might have been raised in the prior litigation but were not).
The decision in Utility Audit Group v. Capital One, N.A., No. 14-cv-0097 (SJF)(GRB),
2015 U.S. Dist. LEXIS 40816 (E.D.N.Y. Mar. 26, 2015), underscores the clear principles that
govern this case. The court discussed at some length the relevant authorities including those that
plainly state that “claim preclusion ‘does not require the precluded claim to actually have been
17 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 22 of 30
litigated; its concern, rather, is that the party against whom the doctrine is asserted had a full and
fair opportunity to litigate the claim.’” Id. at *30-31 (quoting EDP Med. Computer Sys. Inc. v.
United States, 480 F.3d 621, 626 (2d Cir. 2014)). Further, that issue of whether a claim could
have been litigated turns on whether the “same transaction or series of transactions” are
involved, whether the “underlying facts are related in time, space, origin or motivation,” whether
“’the same evidence is needed to support both claims, and whether the facts essential to the
second were present in the first.’” Id. at *32 (citation omitted). See also Woods v. Dunlop Tire
Corp., 972 F.2d 36, 38 (2d Cir. 1992); Mademoiselle Knitwear, Inc. v. Liz Claiborne, Inc., No.
98 Civ. 3252 (HB), 1999 U.S. Dist. LEXIS 8592, at *15, 20 (S.D.N.Y. June 9, 1999) (granting
motion to dismiss claims, even though claims not asserted in prior litigation, because they arose
from “the same connected series of transactions . . . -- a grouping of interrelated contracts and
agreements made during the course of an ongoing business relationship” and because those
claims were “in existence . . . before or during” the prior case); 7 W. 57th St. Realty Co., LLC v.
CitiGroup, Inc., No. 13 Civ. 981 (PGG), 2015 U.S. Dist. LEXIS 44031, at *94 (S.D.N.Y. Mar.
31, 2015) (held that claims in subsequent action were barred where they could have been raised
by counterclaim and plaintiff was “on inquiry notice” of those further claims); Smith v. City of
New York, 130 F. Supp. 3d 819, 828-29 (S.D.N.Y. 2015), aff’d, 664 F.App’x 45 (2d Cir 2016)
(granting defendant’s motion to dismiss based inter alia on res judicata effect of prior litigation
because “claim that ‘could have been raised in the prior action’ is precluded by a prior judgment
if the purportedly new claim ‘was sufficiently related to the claims that were asserted in the first
proceeding that it should have been asserted in that proceeding”) (citation omitted).9
9 Those same precepts are equally applicable to a consent judgment obtained by the SEC. In SEC v. King Resources, the court relied on a “decree of final judgment of permanent injunction by consent, issued in y, Civil Action No. C-2858 (D. Colo. Feb. 9, 1971),” wherein the SEC “sought and successfully obtained a permanent injunction against King Resources enjoining that company from violating Section 5 of the Securities Act of 1933 [as well as] Section 17(a) of the Securities Act and Rule 10b-5. Id. at 257. The court observed:
18 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 23 of 30
Notwithstanding the clarity of decisional authority, including the District Court’s own
seemingly dispositive ruling in Simmtech, the District Court denied defendant’s motion. Oddly,
the court failed even to acknowledge its own decision in Simmtech, or any of the other cases
illustrating that res judicata is not limited to instances where the claim was actually articulated in
the complaint but also includes instances in which the claim was part of the same set of
transactions and could have been presented in the prior action. Opinion at 22, 26.
More importantly for this motion, the District Court’s decision appears to have been
based on the particular allegations contained in the SEC’s New York complaint, in which the
SEC was exceedingly careful not to mention Keven Sepe and sought to obscure the precise
parallels between the two cases. The District Court recognized that the Sepe transactions were
litigated in Florida but could not conclude, on the record at that time, that the New York case
would in fact litigate that same series of transactions. As emphasized by the District Court, “the
SEC does not presently allege that Sepe, Halperin and Gonzalez played any part in the five
schemes at issue here, let alone the supervisory roles that they played in the Recycle Tech
scheme. Indeed, these three individuals are not mentioned in the instant complaint.” Opinion at
22.
Since then, discovery has confirmed that, although the SEC deliberately avoided
discussing Sepe in the complaint, the claims here are precisely the same ones that were charged
and incorporated by the SEC into the Florida Action. They are the series of transactions
originated by Kevin Sepe and his associates, and include Blue Gem, Mass Hysteria, Lyric Jeans
[T]he Colorado decree can fairly be read to extend to and enjoin the acts now charged against the defendant. The injunction of the Colorado Court, which paraphrases the language of Section 17(a) and Rule 10b-5 may properly be construed to prohibit the acts committed by King Resources which the S.E.C. now wishes to further enjoin. …We therefore hold that the injunction issued by the Colorado Court in Securities & Exchange Commission v. King Resources Company, supra, is res judicata to the present suit, as to that defendant, and may properly be set up as a bar to this action.
19 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 24 of 30
and Smart Holdings.10 Because the SEC has not and cannot demonstrate that there are no facts
in dispute pertaining to the defense of res judicata, its motion should be denied.
POINT II
THERE ARE MATERIAL FACTS IN DISPUTE REGARDING WHETHER THE SEC’S CLAIMS ARE BARRED BY THE NEW YORK SETTLEMENT
On the issue of the impact of the New York settlement agreement, and whether it
constituted a defense to the SEC’s claims, the District Court plainly opted not to “wade into the
particulars of those facts.” Opinion at 8. The Court stated that “this action is in the beginning
stages” and that summary judgment “is inappropriate on these bases at this time (and as
presented, the defenses raise triable issues of fact.” Opinion at 8 (emphasis added) Issues such
as apparent authority and estoppel cannot be resolved because “there are triable issues on these
questions.” Opinion at 26.
POINT III
BY VIRTUE OF THE PLEA IN THE CRIMINAL CASE, THE SEC WOULD BE ENTITLED TO JUDGMENT RELATING TO RECYCLE TECH AND BLUE GEM
Counts 12 and 46 of the Criminal Indictment charged violations of New York’s Martin
Act in relation to two specific transactions, Blue Gem and Recycle Tech respectively. Mr.
Thompson pled guilty to those offenses and, given the elements of New York’s Martin Act, the
plaintiff would be entitled to judgment in relation to those transactions. Notably, however, the
SEC in this action declined to charge the Recycle Tech transaction, because it was charged in the
Florida case, and so it does not seek a remedy in relation to that transaction.
The plea and the allocution in the criminal action address specifically the Recycle Tech
and Blue Gem transactions, and go no farther. Mr. Thompson was charged with but did not
10 This case involves one other transactions, Blast Applications, that did not involve Kevin Sepe and would arguably not be barred by the prior Florida Action.
20 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 25 of 30
plead guilty to any wrongdoing in relation to the other transactions at issue in this case, i.e, Blast
Applications, Mass Hysteria, Lyric Jeans and Smart Holdings. Each of those transactions
possessed their own unique characteristics and raised specific issues and defenses. There was no
mention of or reference to other transactions in relation to the plea, those issues were not
litigated or determined in the criminal case, and the plaintiff is not entitled to judgment in
relation to those transactions.
POINT IV
THE SEC HAS FAILED TO DEMONSTRATE THAT IT WOULD BE ENTITLED TO DISGORGEMENT OF ANY AMOUNT OTHER THAN $200,000 RELATING TO BLUE GEM
1. Disgorgement of Blue Gem Amounts Received by Mr. Thompson
The Court has “broad equitable power to fashion appropriate remedies, including
ordering that culpable defendants disgorge their profits.” SEC v. First Jersey Sec., Inc., 101 F.3d
1450, 1474 (2d Cir. 1996). In determining an amount of disgorgement, the court looks to the
amount “by which the defendant was unjustly enriched.” SEC v. Banner Fund Int’l, 211 F.3d
602, 617 (D.C. Cir. 2000). While the Court is not required to determine the amount of
defendant’s gains “with exactitude,” the amount of disgorgement must be based on a
determination of the defendant’s “profits causally connected to the violation.” First Jersey, 101
F.3d at 1475. SEC v. Alternative Green Techs. Inc., No. 11 Civ. 9056 (SAS), 2014 U.S. Dist.
LEXIS 173251, at *9 (S.D.N.Y. Dec. 15, 2014) (“’court must focus on the extent to which a
defendant has profited from’” his violation) (citation omitted).
Here, assuming that the plaintiff is entitled to an order of disgorgement against Mr.
Thompson in relation to the Blue Gem transaction, the Court would have to determine the
amount of profit that was received by this defendant, Anthony Thompson. According to the
records of that transaction, the only amounts that actually went to or for Mr. Thompson was a
21 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 26 of 30
total of $200,000.00. Thompson Declaration ¶¶ 4-6. The remainder was obtained by OTC
Solutions and either disbursed by it for various transactions costs. See SEC v. McCaskey, 2002
U.S. Dist. LEXIS 4915 (S.D.N.Y. Mar. 26, 2002) (courts have discretion to reduce any
disgorgement amount by transaction costs that reduce the defendant’s profit). Even assuming the
continuing viability of disgorgement as a remedy, after the Supreme Court decision in Kokesh v.
Securities and Exchange Commission, 137 S. Ct. 1635 (2017), the Supreme Court has also
recently underscored that disgorgement must involve ill gotten gains actually received by the
defendant. Honeycutt v, United States, 137 S. Ct. 1626 (2017). Because the SEC has failed to
demonstrate that any amount other than the $200,000.00 was actually transferred to or obtained
by Mr. Thompson and his wife, that amount constitutes the appropriate disgorgement figure.
2. Penalties and Injunctive Relief Should Not Be Awarded
As is eventually acknowledged by the plaintiff in its submission, whether any penalty
should be imposed, and the amount of it, are to be determined by the Court in light of all of the
facts and circumstances. In deciding whether a civil penalty should be assessed, the court is
directed to consider “(1) the egregiousness of the defendant’s conduct; (2) the degree of the
defendant’s scienter; (3) whether the defendant’s conduct created substantial losses or the risk of
substantial losses to other persons; (4) whether the defendant’s conduct was isolated or recurrent;
and (5) whether the penalty should be reduced due to the defendant’s demonstrated current and
financial condition.” SEC v. Tavella, 77 F. Supp. 3d 353, 362 (S.D.N.Y. 2015); SEC v.
Haligiannis, 470 F. Supp. 2d 373, 386 (S.D.N.Y. 2007).
Courts have also considered other factors including “the adequacy of other criminal or
civil sanctions to punish the defendant” and hardships to the defendant’s family. SEC v. First
AmeriFirst Funding Inc., No. 3:07-cv-1188-D, 2008 U.S. Dist. LEXIS 36782, at *24 (N.D. Tex.
May 5, 2008) (citing SEC v. Lewis, 492 F. Supp. 2d 1173, 1174 (D.S.D. 2007)); SEC v. Church
22 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 27 of 30
Extension of the Church of God, 429 F. Supp. 2d 1045, 1050 (S.D. Ind. 2005); SEC v. Balboa,
No. 11 Civ. 8731 (PAC), 2015 U.S. Dist. LEXIS 87281, at *13 (S.D.N.Y. July 6, 2015) (court
may consider other remedies already imposed on the defendant to determine whether a penalty is
“unduly harsh under the circumstances”) (internal quotations and citations omitted); SEC v.
Conaway, 695 F. Supp. 2d 534, 574 (E.D. Mich. 2010). Application of those factors have led
courts to note that he “defendant’s net worth and corresponding ability to pay has proven to be
one of the most important factors that district courts consider when determining how much of a
civil penalty to assess.” SEC v. Perez, No. 09-cv-21977, 2011 U.S. Dist. LEXIS 132965, at *20
(S.D. Fla. Nov. 17, 2011) (finding that, based on his limited net worth and disgorgement order,
“a civil penalty at the low end of the scale is appropriate” and imposing a penalty of $50,000.00).
See SEC v. Druffner, 802 F. Supp. 2d 293, 298-99 (D. Mass. 2011) (confirming that a court “may
consider a defendant’s ability to pay when determining the amount of civil penalties to impose or
whether to waive civil penalties” and holding that “imposition of civil penalties is unwarranted”
in light of disgorgement order, limited resources and other criminal and civil penalties).
Also at issue in imposition of penalties is the number of violations. Because the civil
penalties provision permits the imposition of penalties “for each violation,” courts have also had
to grapple with the appropriate definition of a violation, particular where alleged conduct
involves the same act committed multiple times. See Alternative Green Tech, 2014 U.S. Dist.
LEXIS 173251, at *22-23 (where SEC argued that the court should impose two penalties, based
on the number of statutory violations, or 56 based on the number of defendant’s acts, for a total
of $36,400,000 as to corporate defendant, held that one penalty of $650,000.00 “is appropriate”);
Balboa, 2015 U.S. Dist. LEXIS 87281, at *14 (where SEC sought a penalty for each
transmission of inflated valuations for a total of $2.6 million, court rejected argument that each
23 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 28 of 30
transmission should be considered a separate violation and imposed two penalties for each of the
securities offerings); SEC v. Elliot, No. 09 Civ. 7594 (KBF), 2012 U.S. Dist. LEXIS 82992, at
*29-30 (S.D.N.Y. June 12 2012) (where court finds that Second or Third tier penalties are
appropriate in relation to more than 900 sales of stock, held that “such an award would be unduly
penalizing” and imposes $6,500 per transaction). in relation to more than 900 sales of
unregistered securities); SEC v. IShopNoMarkup.com.Inc., 126 F. Supp. 3d 318, 332-33
(E.D.N.Y. 2015), aff’d, 694 F. App’x 853 (2d Cir. 2017) (where SEC advised court that it could
consider defendant’s conduct to be one violation, or “consider the sale to each of the more than
350 investors as separate violations, yielding a penalty of $38,500,000” held that “considering
each sale to the 350 investors as a separate violation results in an ‘unduly penalizing amount””
and imposes penalty of $330,000 based on three unregistered offerings); SEC v. GTF Enters.,
No. 10-cv-258 (RA), 2015 U.S. Dist. LEXIS 20355, at *11-13 (S.D.N.Y. Feb. 19, 2015)
(discussing methods used by courts to determine the number of “violations” including number of
statutes violated, number of transactions and holding that, because the court lacked detailed
information about the defendant’s conduct, imposing a single maximum penalty against each).
Here, the relevant factors support the imposition of no penalty. First, and in relation to
these transactions, Mr. Thompson has already paid a penalty amount to the SEC in the Florida
Action. He also entered into an agreement with the criminal authorities that called for the
payment of additional amounts of approximately $896,000 and, because of inability to pay that
amount, he was sentenced by the state court to a period of incarceration and remains in jail.
Clear also is that, at this point, he has no money. After the Indictment in 2014, Mr.
Thompson was not able to earn any significant income. His family and he at that time still had
access to funds from his earlier income that had been placed into family trusts, but those were
24 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 29 of 30
used over the years to pay the living expenses of his wife, his children and himself. As of 2017
and 2018, Mr. Thompson’s wife began aggressively pursuing a costly matrimonial action and
even litigating to try to obtain sole custody of their children. Fortunately, Mr. Thompson
eventually regained joint custody of the children. His wife then began another litigation, this
one designed to gain control of the family’s remaining assets. Those litigations only further
depleted the family’s assets. Some funds remain in the trusts but his wife has control of those
funds. Mr. Thompson himself possesses no bank or brokerage accounts or real property. When
he completes his sentence, he will start completely from scratch with no funds left to pay
expenses except what he is able to earn. At the same time, he has been the sole breadwinner for
his wife and three young children throughout his adult life, and looks forward to continuing to
provide support for the family after his release. He had obtained, and will hopefully be able to
resume, a position in real estate, and his children will need from him as much financial support
as he is able to provide. Thompson Decl. ¶ 13. Given these circumstances, and the seven years
of litigation of these matters and the penalties that have already been imposed, no further penalty
is warranted.
Finally, in with respect to injunctive relief, the SEC is not entitled to obtain, and the
courts will not grant, injunctive relief that has already been obtained. Here, any appropriate
injunctive relief was previously entered in the Florida Action and no further relief is warranted.11
CONCLUSION
For the foregoing reasons, the Court should deny the SEC’s request for partial summary
judgment or, in the alternative, grant judgment to the SEC in relation to the Blue Gem
11 The district court in the Florida Action did not grant any injunction against violations of Section 17(b) and in fact held that Mr. Thompson had complied with that provision. That same result should hold here, particularly because Mr. Thompson is now long removed from the securities industry and the SEC has not and cannot demonstrate any likelihood of a future violation.
25 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 30 of 30
transaction, order disgorgement in the amount of $200,000.00 obtained by Mr. Thompson, and
deny penalties or injunctive relief.
Dated: March 13, 2019 Respectfully,
THOMPSON HINE LLP
By: /s/ Maranda E. Fritz Maranda E. Fritz 335 Madison Avenue, 12th Floor New York, New York 10017 Telephone: (212) 344-5680 Maranda.Fritz@Thompsonhine.com
26 | 2019-03-13 | [
"Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 1 of 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, Plaintiff, vs. ANTHONY J. THOMPSON, JR., JAY FUNG, and ERIC VAN NGUYEN, Defendants, Case No. : 14-cv-9126 (ALC) and JOHN BABIKIAN and KENDALL THOMPSON, Relief Defendants, NEW YORK COUNTY DISTRICT ATTORNEY, Intervenor. MEMORANDUM OF LAW OF DEFENDANT ANTHONY THOMPSON IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 335 Madison Avenue, 12th Floor New York, New York 10017 (212) 344-5680 Attorneys for Anthony J. Thompson, Jr. Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 2 of 30 TABLE OF CONTENTS INTRODUCTION ........................................................................................................................................ 1 BACKGROUND .......................................................................................................................................... 4 A. OTC Solutions and the Promotional Newsletters ............................................................................... 4 B.",
"The Prior Florida Action ..................................................................................................................... 7 C. Mr. Thompson’s Counsel’s Negotiation and Resolution of the Florida and New York Actions........ 8 1. The Florida Action .................................................................................................................... 8 2. The New York Proceedings ...................................................................................................... 9 3. The DOE Reneges on Its Own Agreement, Refusing to Present or Recommend the Settlement ................................................................................................................................ 13 D. The Pending Complaint..................................................................................................................... 14 E. The District Court’s Decision ........................................................................................................... 14 F. The Criminal Plea ............................................................................................................................. 15 ARGUMENT .............................................................................................................................................. 16 POINT I BECAUSE THE SEC HAS FAILED TO DEMONSTRATE THAT THERE ARE NO ISSUES OF FACT PERTAINING TO MR. THOMPSON’S DEFENSES, SUMMARY JUDGMENT SHOULD BE DENIED ...................... 16 POINT II THERE ARE MATERIAL FACTS IN DISPUTE REGARDING WHETHER THE SEC’S CLAIMS ARE BARRED BY THE NEW YORK SETTLEMENT ......... 20 POINT III BY VIRTUE OF THE PLEA IN THE CRIMINAL CASE, THE SEC WOULD BE ENTITLED TO JUDGMENT RELATING TO RECYCLE TECH AND BLUE GEM .......................................................................................................... 20 POINT IV THE SEC HAS FAILED TO DEMONSTRATE THAT IT WOULD BE ENTITLED TO DISGORGEMENT OF ANY AMOUNT OTHER THAN $200,000 RELATING TO BLUE GEM ............................................................... 21 1.",
"Disgorgement of Blue Gem Amounts Received by Mr. Thompson ....................................... 21 2. Penalties and Injunctive Relief Should Not Be Awarded........................................................ 22 CONCLUSION ........................................................................................................................................... 25 i Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 3 of 30 TABLE OF AUTHORITIES Page(s) Cases 7 W. 57th St. Realty Co., LLC v. CitiGroup, Inc., No. 13 Civ. 981 (PGG), 2015 U.S. Dist. LEXIS 44031 (S.D.N.Y. Mar. 31, 2015) ........................................................................................................18 EDP Med. Computer Sys. Inc. v. United States, 480 F.3d 621 (2d Cir. 2014).....................................................................................................18 Honeycutt v, United States, 137 S. Ct. 1626 (2017) .............................................................................................................22 Kokesh v. SEC, 137 S. Ct. 1635 (2017) .............................................................................................................22 Mademoiselle Knitwear, Inc. v. Liz Claiborne, Inc., No. 98 Civ.",
"3252 (HB), 1999 U.S. Dist. LEXIS 8592 (S.D.N.Y. June 9, 1999).....................18 Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102 (2d Cir. 2015).....................................................................................................17 SEC v. Alternative Green Techs. Inc., No. 11 Civ. 9056 (SAS), 2014 U.S. Dist. LEXIS 173251 (S.D.N.Y. Dec. 15, 2014)...................................................................................................21, 23 SEC v. Balboa, No. 11 Civ. 8731 (PAC), 2015 U.S. Dist. LEXIS 87281 (S.D.N.Y. July 6, 2015) ...........................................................................................................23 SEC v. Banner Fund Int’l, 211 F.3d 602 (D.C. Cir. 2000) .................................................................................................21 SEC v. Church Extension of the Church of God, 429 F. Supp. 2d 1045 (S.D. Ind. 2005) ....................................................................................22 SEC v. Conaway, 695 F. Supp. 2d 534 (E.D. Mich. 2010)...................................................................................23 SEC v. Druffner, 802 F. Supp.",
"2d 293 (D. Mass. 2011) ......................................................................................23 SEC v. Elliot, No. 09 Civ. 7594 (KBF), 2012 U.S. Dist. LEXIS 82992 (S.D.N.Y. June 12 2012)..........................................................................................................24 ii Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 4 of 30 SEC v. First AmeriFirst Funding Inc., No. 3:07-cv-1188-D, 2008 U.S. Dist. LEXIS 36782 (N.D. Tex. May 5, 2008) ......................22 SEC v. First Jersey Sec., Inc., 101 F.3d 1450 (2d Cir. 1996)...................................................................................................21 SEC v. GTF Enters., No. 10-cv-258 (RA), 2015 U.S. Dist. LEXIS 20355 (S.D.N.Y. Feb. 19, 2015) .....................24 SEC v. Haligiannis, 470 F. Supp. 2d 373 (S.D.N.Y.",
"2007)......................................................................................22 SEC v. IShopNoMarkup.com.Inc., 126 F. Supp. 3d 318 (E.D.N.Y. 2015), aff’d, 694 F. App’x 853 (2d Cir. 2017)......................24 SEC v. Lewis, 492 F. Supp. 2d 1173 (D.S.D. 2007) .......................................................................................22 SEC v. McCaskey, 2002 U.S. Dist. LEXIS 4915 (S.D.N.Y. Mar. 26, 2002) .........................................................22 SEC v. Perez, No. 09-cv-21977, 2011 U.S. Dist. LEXIS 132965 (S.D. Fla. Nov. 17, 2011) ........................23 SEC v. Tavella, 77 F. Supp. 3d 353 (S.D.N.Y. 2015)........................................................................................22 Simmtech Co. v. Citibank, N.A., No. 13-cv-6768 (KBF), 2016 U.S. Dist. LEXIS 102698 (S.D.N.Y. Aug. 3, 2016), aff’d, 697 F. App’x 35 (2d Cir. 2007) ......................................17, 19 Smith v. City of New York, 130 F. Supp. 3d 819 (S.D.N.Y. 2015), aff’d, 664 F.App’x 45 (2d Cir 2016) ..........................18 Utility Audit Group v. Capital One, N.A., No. 14-cv-0097 (SJF)(GRB), 2015 U.S. Dist. LEXIS 40816 (E.D.N.Y. Mar.",
"26, 2015) ..................................................................................................17, 18 Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992).......................................................................................................18 iii Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 5 of 30 INTRODUCTION By this motion, the plaintiff seeks partial summary judgment predicated on a plea that was entered by Anthony Thompson in a criminal case in New York County. While the plaintiff would ordinarily be entitled to some relief based on the entry of a criminal plea, here the plaintiff asks for far more than it is entitled to receive. As discussed below, the criminal plea was expressly limited to two particular transactions, Recycle Tech and Blue Gem Enterprises (“Blue Gem”), and the SEC would be entitled to judgment only as to those two transactions which were the basis for and “essential” to the criminal resolution. A judgment already exists as to Recycle Tech and so that leaves only the transaction involving Blue Gem. Further, the amount of disgorgement should be limited to that which was actually received by Mr. Thompson, as opposed to all amounts received by the entity that published the newsletters. Absent other factual issues in dispute, therefore, plaintiff would be entitled to disgorgement order relating to Blue Gem. However, the plaintiff’s current motion also implicates broader issues arising from the extensive prior proceedings relating to this case, the related defenses, and the extent to which issues of fact pertaining to those defenses precludes a grant of summary judgment.",
"In 2012, an action was commenced by the SEC against Anthony Thompson and others in the United States District Court for the Southern District of Florida (the “Florida Action”) – the jurisdiction in which these transactions originated. Thompson Motion to Dismiss: ECF 42. In that action, the SEC alleged that Mr. Thompson had engaged in improper conduct through his dissemination of promotional newsletters during the period from January 2009 through 2010 in transactions orchestrated by Kevin Sepe. Exhibit B to Pizzani Dec. (ECF No.",
"54-2): Amended Complaint in SEC v. Recycle Tech Inc., et al., No. 12-cv-21656 JAL (S.D. Fla.) (“Florida Complaint”). The Florida Complaint focused on one particular issuer, Recycle Tech, but the SEC successfully 1 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 6 of 30 argued to the district court that its case against Mr. Thompson encompassed the series of transactions that all stemmed from the activities of Kevin Sepe, all involved the same key participants, and shared the same “common components.” SEC Opp. to Motion to Dismiss (ECF No.",
"53) at 4-6). Because of those other related transactions, the SEC maintained, it was entitled to the harsher injunctive relief that it ultimately obtained. And those related transactions that were the subject of litigation in Florida include but are not limited to the transactions that are the subject of the instant complaint: Blue Gem, Mass Hysteria, Lyric Jeans and Smart Holdings. In this case, the SEC is entitled to summary judgment only if it has demonstrated that there is no material issue of fact concerning whether its present action is barred by those prior proceedings. The SEC has argued in discussions with this Court that the District Court, Judge Katherine Forrest, previously denied the defendant’s motion for judgment, but that prior decision does not end the discussion as to the impact of the SEC’s arguably duplicative proceedings. The district court’s prior decision appears to have been predicated on the fact that the SEC, plainly mindful of the issue of res judicata, scrupulously avoided even a mention of Kevin Sepe in its New York Complaint, and so the Court could not conclude that the matters at issue in New York involved the same set of Sepe transactions such that it would preclude the pending claims.",
"Discovery has confirmed that this case really is a rehash of the issues and transactions that were dealt with in the Florida case. As a result, the SEC has not and cannot demonstrate that it is entitled to prevail on Mr. Thompson’s defense of res judicata. In addition, the Florida proceedings involving the SEC were followed by efforts to resolve the investigation being conducted by the New York office of the SEC which also form the basis for a defense asserted by Mr. Thompson. As of December 2013, Mr. Thompson had spent more than a year litigating the Florida Action and addressing the New York Proceeding. 2 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 7 of 30 Counsel for Mr. Thompson had repeatedly maintained, in discussions with the New York office of the SEC, that its investigation was an impermissible duplication of the Florida Action, but the SEC in New York had refused to cede the matter to Florida or curtail their own investigation. At that point, Mr. Thompson’s counsel entered into settlement discussions with the SEC in Florida.",
"Because it made no sense for Mr. Thompson to settle one of the two proceedings if the other virtually identical matter was going to continue, counsel for Mr. Thompson also commenced negotiations with the New York office. After discussions in December 2013, the SEC attorneys in New York forwarded to counsel a term sheet setting out the salient provisions of an agreement, and insisted that Mr. Thompson transfer $345,000 into escrow for disgorgement in order to proceed with the memorializing of the agreement. As of January 15, 2014, those funds were transferred by the defendant. The SEC then forwarded an Offer of Settlement prepared by SEC attorneys, that Offer of Settlement was finalized and executed, and Mr. Thompson’s counsel was assured by the SEC in New York that the SEC’s Department of Enforcement (“DOE”) would present and recommend that resolution to the Commission for final approval. Months then passed. The SEC in New York continued to assure Mr. Thompson’s counsel that the settlement was “moving forward.” Then, in August 2014, the SEC abruptly communicated to counsel for Mr. Thompson that it was refusing to proceed with the settlement.",
"Notably, the reason that it put forth for its refusal – that it had “new” information regarding his involvement with other promotions – was patently inconsistent with the specific and written discussions with the SEC attorneys that had occurred during the negotiations. In reality, the only changed circumstance appeared to be the fact that, in or about July 2014, the lead defendant, Kevin Sepe, agreed to cooperate and the New York County District Attorney’s Office decided to move forward with a criminal case. In light of those developments, the SEC apparently decided 3 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 8 of 30 that it would rather proceed with a parallel civil action, following behind the criminal indictment, rather than settle with the defendant, and it filed this action. Judge Forrest also considered those circumstances, and concluded that the defendant was not entitled to judgment but she did not attempt to resolve the relevant factual issues. To the contrary, she expressly stated that those facts raise a triable issue of fact in relation to the defenses asserted by Mr. Thompson.",
"BACKGROUND A. OTC Solutions and the Promotional Newsletters The Florida Action and this New York Proceeding arise from a particular series of transactions that were originated by Florida businessman Kevin Sepe in 2009 and 2010 in which companies related to Mr. Thompson, Microcapster and OTC Solutions, were hired to disseminate promotional newsletters. As discussed in the New York Complaint, Mr. Thompson disseminated promotional newsletters regarding “penny stock” companies to subscribers who had “double opted in” to his free penny stock newsletters.1 Mr. Thompson’s business did not engage in spam, or distribute any unsolicited communications. Instead, he set out, beginning in June 2009, to develop a subscriber database, made up of individuals who specifically sought to receive information about penny stocks. That process began with internet advertising, targeted to web users who had entered particular search terms suggesting that they might be interested in receiving communications from newsletters with names like “Penny Stock Picks.” If the internet user clicked on the advertisement, he or she would be invited to enter their email address and sign up for a newsletter. The enrollment process even then was not complete; the internet user 1 The SEC’s New York Complaint refers to the following companies: Blast Applications, Inc. (“Blast Applications”), Smart Holdings, Inc. (“Smart Holdings”), Blue Gem Enterprise, Inc. (“Blue Gem”), Lyric Jeans, Inc. (“Lyric Jeans”), and Mass Hysteria Entertainment Company, Inc. (“Mass Hysteria”).",
"All of the transactions except Blast Applications originated with and involved Kevin Sepe. 4 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 9 of 30 had to “double opt in” – by confirming again that they indeed wanted to receive the newsletter – before he or she would be added to the subscriber list. Those newsletters constitute precisely the kind of “touting” activity that is contemplated and governed by a particular provision of the federal securities laws, Section 17(b) of the Securities Act of 1933, and Mr. Thompson’s website and his newsletters included lengthy disclosures that contained the information called for by Section 17(b), i.e., the fact that it was a paid promotion, the fact that he had received stock as compensation for the promotion, and the fact that he was able to sell the stock during the promotion.",
"From the outset, Mr. Thompson worked closely with experienced attorneys who advised him regarding the content of his disclosures and reviewed his newsletters. As of June 2009, Mr. Thompson reached out for advice from attorneys Hank Gracin and Leslie Marlow, both established securities attorneys with a combined total of more than 50 years’ experience who partnered to form Gracin & Marlow, LLP. As explained by Ms. Marlow in sworn testimony in both the Florida and the New York Action, she believed and advised Mr. Thompson that “the most important thing” in relation to disclaimers is “that the public know, even if it’s not stock, that somebody is compensated, and that they’re biased because that tells me that this is a paid promotion and that somebody is showing you one side of things, basically.” Exhibit 1 to the Declaration of Maranda Fritz (“Fritz Dec.”) at Exhibit 1: Transcript of Sept. 16, 2013 Deposition of Leslie Marlow (“Marlow Tr.”) 103:11-20. Based on the advice from counsel, the newsletters, literally in bold print, told the subscribers “to conduct their own due diligence,” and then included the detailed disclaimer, stating that “investing in penny stocks is highly speculative,” an investor should “never” purchase the profiled security unless he “can afford to lose [his] entire investment,” and that the 5 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 10 of 30 reader agreed to hold the website harmless from any loss. The newsletters explained the source of the information about the company, stating that it is “provided by the companies profiled” or publicly available, that the information is “not guaranteed,” that it “does not purport to be a complete statement or summary of available data.” And the newsletters disclosed that the publisher received compensation (and the amount of it), and that it may sell “part or all” of the shares that it received “during the period of the promotion.” Exhibit 2 to Fritz Dec: ExplicitPicks.com Newsletter/Blue Gem.",
"Mr. Thompson’s continuing efforts to comply with industry regulations is reflected in an email communication in February 2010: Leslie and Hank, As always I want to stay compliant with SEC regs regarding disclosure. Do you think we are taking the necessary steps? We are disclaiming all compensation in emails and on our website while many sites simply disclose in their emails. We are not doing work with any pink sheets so as to only deal with fully reporting companies. We are keeping logs of our due diligence on the companies and sectors they are in. I stay up at night sometimes wondering if we are doing enough. I feel like we are and I feel like we do more than our competitors. The biggest emailer out there right now is a 23 year old kid who I was told just made $7 mill on a stock PEPR that didn’t do so well.",
"I looked at his email disclaimer and he indicated that he was paid $50,000 on SKTO, not even the right company. To me I see that kind of behavior and I think to myself, that kid is going to get smoked! Id. at Exhibit 3: Email from Thompson to Gracin and Marlow, Feb. 21, 2010. Mr. Thompson not only continued to work with Gracin & Marlow but also sought the advice of attorneys at Parsons Behle & Latimer including Brent Baker, formerly with the Division of Enforcement (“DOE” or “Division”) of the SEC. In March 2010, Mr. Thompson asked Mr. Baker to “review our site disclaimers for Eric, Jay and myself” and “let me know if you think they are strong enough or if we need to make additions.” Id. at Exhibit 4: Email from Thompson to Baker, Mar. 25, 2010.",
"Leslie Marlow and the Parsons firm then worked together 6 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 11 of 30 and prepared a revised disclaimer which, again, emphasized that the newsletter was part of a promotional campaign and included the extensive warnings about the risk of speculative securities and a statement concerning compensation. Id. at Exhibit 5: Email between Marlow and Taylor, April 30, 2010-May 10, 2010. As Ms. Marlow confirmed in her testimony in the Florida Action, “Mr.",
"Thompson was very concerned about making sure he complied with anything that the SEC would have wanted him to comply with. I mean, that was the purpose of hiring me in the first place.” Id. at Exhibit 1, 80:7-12. Ms. Marlow explained again, later in her testimony, that Mr. Thompson “wanted to make sure he was doing everything that somebody would have thought was appropriate in accordance with the SEC regulations on the promotions.” Id. at 95:24-96:3. B.",
"The Prior Florida Action In the Florida Action, the Commission alleged, inter alia, that Thompson and OTC participated in a pump-and-dump scheme, “concocted” and “orchestrated” by Kevin Sepe. The SEC alleged in the complaint that Thompson, OTC Solutions and others were hired by Sepe to promote Recycle Tech stock through electronic newsletters, in exchange for shares of Recycle Tech stock. Although the complaint in the Florida Action focused on a particular company, Recycle Tech, it quickly became clear that the scope of that action was much broader: it included the time period from January 2009 through December 2010 and it extended to all of the other companies that involved Sepe including Blue Gem, Lyric Jeans and Mass Hysteria.2 Because both the Florida and New York offices of the SEC were focusing on and demanding information regarding the same set of transactions, Mr. Thompson’s counsel objected to the duplicative demands and proceedings. The Florida court then asked the SEC to explain 2 Exhibit 1 to the Fritz Decl.",
"at Exhibit 11: Deposition of Anthony Thompson, October 15, 2013, pp. 71-74, 91-93, 198-200, 205-06, 223-26, 238-39. 7 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 12 of 30 the scope of its requests and their relevance to the Florida Action. The SEC responded that its case encompassed the “numerous promotional campaigns,” particularly those involving “the main architect of this whole fraud,” Kevin Sepe. Id. at Exhibit 14: Tr. of Hearing of October 31, 2013 at 53:8-57:18. Based on the SEC’s assertion that the Florida Action included not just Recycle Tech but the “numerous promotional campaigns” involving Kevin Sepe, the Court held that the documents regarding Blue Gem, Mass Hysteria, Lyric Jeans and Smart Holdings were “relevant and discoverable.”3 Thus, the SEC prevailed in its assertion that the transactions at issue in this case were part of the Florida Action.4 Having received and presumably reviewed those documents, the SEC in the Florida action obviously could have, but declined to, amend its complaint.",
"C. Mr. Thompson’s Counsel’s Negotiation and Resolution of the Florida and New York Actions 1. The Florida Action After the SEC in the Florida Action was able to persuade the court that all of the Sepe transactions were properly included in its case and were relevant to its demand for injunctive relief, the parties resumed their settlement discussions. Counsel for Mr. Thompson agreed to full injunctive relief including a penny stock bar, and an agreement to settle the Florida Action was reached in mid-January of 2014. Pursuant to the parties’ settlement agreement, at the SEC’s insistence, Thompson and OTC deposited $493,239.76 into counsel’s trust account to cover the agreed-upon amount for disgorgement, prejudgment interest and civil penalties, and entered into Consents of Final Judgment of Permanent Injunction and Other Relief, drafted by the SEC, filed 3 Id. at Exhibit 15: Order on Informal Discovery Conference, October 31, 2013. 4 Thompson and OTC subsequently responded to those discovery demands, as ordered by the Court, relating, inter alia, to Blue Gem, Mass Hysteria and Lyric Jeans. See id.",
"at Exhibit 16: OTC’s Responses to the Commission’s Second Set of Interrogatories; id. at Exhibit 17: Thompson’s Responses to Commission’s Second Set of Interrogatories; id. at Exhibit 18: OTC’s Responses to Second Requests for Production of Documents; id. at Exhibit 19: Thompson’s Responses to Second Requests for Production of Documents. 8 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 13 of 30 on January 13, 2014 (the “Consents”).5 Pursuant to the Consents, Thompson and OTC, without admitting or denying the allegations in the Complaint, consented to entry of a final judgment that, inter alia, (a) permanently restrains and enjoins them from violations of Sections 5(a), 5(c) and 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5; (b) orders payment of disgorgement in the amount of $349,504.61 plus prejudgment interest thereon in the amount of $23,735.15, jointly and severally; (c) orders payment of a civil penalty of $120,000, jointly and severally; and (d) imposes a penny stock bar.6 2. The New York Proceedings Given the fact that two SEC regional offices were focused on the same conduct, Mr. Thompson was adamant that any settlement would have to include both the Florida Action and the New York Proceeding.",
"To that end, on December 16, 2013, counsel for Thompson emailed Peter Pizzani (Senior Counsel at the DOE in New York) to try to “schedule a time to talk about the status of this matter and [a] possible resolution.” Id. at Exhibit 26: Emails dated December 16, 2013-December 20, 2013. Mr. Pizzani responded to this email on December 16, 2013, copying other counsel for the DOE (Michael Osnato, then assistant director of the New York Regional Office), confirming that DOE would be “willing to discuss and ultimately recommend” a resolution that included an antifraud injunction, a penny stock bar and collateral bars, disgorgement, and payment of a penalty. Id. On December 19, 2013, counsel for Thompson responded to Mr. Pizzani’s December 16, 2013 email, stating that he had spoken to the client, that the client was “genuinely open to discussing the terms you laid out in your email,” and suggesting a conference call the following 5 See id. at Exhibit 20: Trust Agreement, January 14, 2014; id.",
"at Exhibit 21: Consent of Defendant Anthony Thompson to Final Judgment of Permanent Injunction and Other Relief; id. at Exhibit 22: Consent of Defendant OTC Solutions LLC to Final Judgment of Permanent Injunction and Other Relief. 6 See id. at Exhibit 23: Final Judgment of Permanent Injunction and Other Relief as to Anthony Thompson; id. at Exhibit 24: Final Judgment of Permanent Injunction and Other Relief as to OTC Solutions LLC. 9 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 14 of 30 day.",
"Id. Counsel for Thompson spoke with Mr. Pizzani and Mr. Osnato regarding settlement on December 20, 2013. Following further discussions, on January 7, 2014, the Division (through Mr. Pizzani) sent counsel for Thompson a settlement term sheet. Id. at Exhibit 28: Letter & Term Sheet. Notably, in the January 7, 2014 letter, Mr. Pizzani made clear he was expressing the position of the DOE, and had actual authority to negotiate and enter into settlement agreements on behalf of the DOE, with the settlement subject only to approval by the Commission: As you know, any settlement must be approved by the full Commission and the terms outlined herein are representative only of the position of the Division of Enforcement. The staff will not recommend any settlement offer until we receive proof that all funds to [sic] paid pursuant to the proposed settlement have been placed in escrow.",
"Id. (emphasis added). Counsel for Mr. Thompson made revisions to the term sheet in redline and returned it to Mr. Pizzani and Mr. Osnato on January 9, 2014. Among the changes, Thompson sought confirmation that any settlement would cover “any and all claims arising from the Commission’s investigation pursuant to a formal order of investigation in re Blast Applications, Inc. (NY- 8264),” with the exception of claims in the Recycle Tech Action. Id. Counsel for Thompson had several telephone calls with Mr. Pizzani and Mr. Osnato regarding settlement and the term sheet in the week after January 7, 2014. During one of these calls, Mr. Osnato and Mr. Pizzani confirmed that the settlement would extend to all conduct that was under investigation in the New York Proceeding, and agreed to reduce the total settlement amount for disgorgement, penalties and interest to approximately $345,000 (plus interest through August 13, 2013), as requested by Thompson.",
"Mr. Osnato suggested that the parties effectuate settlement by an Offer of Settlement, rather than the term sheet originally proposed by the DOE. Mr. Osnato further indicated the DOE would prepare an Offer of Settlement if Thompson would 10 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 15 of 30 deposit the settlement funds into counsel’s trust account. Thompson’s counsel agreed with this approach. At that point in January 2014, Mr. Thompson understood that there was an agreement on the essential terms in relation to both the New York and Florida actions and so he proceeded to finalize both. On January 13, 2014, the settlement documents in the Florida Action were executed and, on January 15, 2014, counsel for Thompson emailed Mr. Pizzani in New York to inform him that “[t]he money ($345,000 plus amount roughly equal to prejudgment interest through August 2013) is in [sic] currently my trust account for use in settling this matter subject to consideration and approval by the Commission.” Id.",
"at Exhibit 29: Email Baker/Pizzani January 15, 2014. The New York DOE attorneys then drafted and sent a proposed Offer of Settlement to counsel for Thompson by email. Id. at Exhibit 30: Email communication dated January 15, 2014. That proposed Offer of Settlement failed to include that parties’ agreement that the settlement covered all of the companies and conduct being investigated by the SEC and so counsel for Thompson proposed changes to the Offer of Settlement to ensure it correctly identified the scope of the settlement agreed upon by the parties. After trading further drafts of the Offer of Settlement, counsel for Thompson had a phone call with Mr. Pizzani, Mr. Osnato and Thomas Smith (Assistant Regional Director in the New York Office) regarding settlement on March 28, 2014. During the conversation, Mr. Osnato suggested that the parties enter into separate agreement to confirm that the settlement included all companies and conduct under investigation, rather than making further amendments to the Offer of Settlement.",
"Id. at Baker Decl. ¶ 26. Following the March 28, 2014 telephone call, counsel for Thompson emailed Mr. Pizzani to confirm their conversation: 11 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 16 of 30 [A]s we have discussed several times as part of our settlement negotiations, our understanding is that this Offer of Settlement/Agreement is meant to cover all of the legal and factual issues referenced in all subpoenas issued under the Formal Order of Investigation in the Matter of Blast Applications, Inc. (NY-8264). Can the Staff please confirm that our understanding is correct and consistent with the scope of the recommendation being presented by the Staff to the Commission in this matter.7 Id. at Exhibit 25: March 28, 2014 Email. Mr. Pizzani responded to this email, copying Mr. Osnato and Thomas Smith, the same day as follows: “This will confirm that your understanding is correct and consistent with the scope of the recommendation being presented to the Commission.” Id. (emphasis added).",
"After that separate agreement was confirmed, Thompson agreed to execute and deliver the Offer of Settlement as drafted by the DOE. The SEC later sought some additional revisions, and Thompson submitted the fully executed Offer of Settlement to the Division on June 6, 2014. Id. at Exhibit 31: Offer of Settlement. After delivering the executed Offer of Settlement, counsel for Thompson contacted Mr. Pizzani on several occasions to determine the status of the settlement and to see when the Offer of Settlement would “get into the queue to be approved by the Commission.” Id. at Exhibit 32: Email from Brent Baker dated July 16, 2014. Mr. Pizzani did not give any indication that there were any problems with the settlement, or that additional approval was necessary from within the Division itself. Rather, he responded, simply, “It is being moved along,” and “things were delayed because we were waiting for the other offer [from Fung and Pudong].” Id.",
"At all relevant times during the settlement discussions, the Division Staff—including through Mr. Pizzani, Mr. Osnato and Mr. Smith—represented, through statements and actions, 7 Those subpoenas in the New York investigation had referenced Blast Applications, all of the Sepe transactions that appear in this Complaint, and various other promotional campaign during that time period. Id. at Baker Decl. ¶ 35 and Exhibits 33 and 34. 12 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 17 of 30 that they had full and actual authority to negotiate and enter into a settlement on behalf of the DOE and agree to recommend that settlement to the Commission. Thompson understood - based on the representations of the DOE - that the DOE had agreed to and was in the process of presenting the executed Offer of Settlement to the Commission for approval, accompanied by the recommendation of the DOE that the Commission accept the Offer.",
"3. The DOE Reneges on Its Own Agreement, Refusing to Present or Recommend the Settlement Unexpectedly, in two telephone calls in August 2014, Thomas P. Smith and Peter Pizzani of the DOE in New York advised counsel for Thompson that they had not submitted, and would not be submitting, the Offer of Settlement to the Commission with a recommendation to approve the settlement. Mr. Smith and Mr. Pizzani told counsel for Thompson that they were refusing to go forward with the agreement because they had “come to learn of new information” since the time the agreement was negotiated. Id. at Baker Decl. ¶ 34. This new information, they stated, consisted of the fact that Mr. Thompson had engaged in the same conduct but with respect to “newly discovered” issuers - Smart Holdings, Mass Hysteria, Blue Gem and Lyric Jeans.” Id. That claim was contrary to the DOE’s multi-year investigation, the broad scope of the investigative subpoenas, and the express agreement with DOE incorporating and covering those other transactions. Id.",
"¶ 35 and Exhibits 33 and 34. On August 18, 2014, counsel for Thompson and Fung had an escalation call with DOE Staff and the Director of the Division of Enforcement, Andrew Ceresney, regarding the DOE’s attempted repudiation of its agreement to submit the Offer of Settlement to the Commission and to recommend settlement. During that escalation call, and at a subsequent meeting with counsel, Mr. Ceresney insisted that any agreement negotiated by DOE Staff is final and binding only if 13 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 18 of 30 approved by him. Id. ¶ 36. Mr. Ceresney stated that the DOE had no obligation to honor its agreement to submit the Offer of Settlement to the Commission, and recommend its approval, because he had not approved it – an assertion that contradicted the representations made by the DOE Staff, including Mr. Pizzani, Mr. Osnato and Mr. Smith, in negotiating and entering into the agreement on behalf of the DOE with Mr. Thompson.",
"Id. D. The Pending Complaint It was after the repudiation of that agreement that, on November 17, 2014, the SEC filed its Complaint in this action. The Complaint states that it deals with the period November 2009 through September 2010 --a period encompassed by the Florida Action -- and deals with five particular stocks – including the same transactions that related to Kevin Sepe and that were part of the document demands and testimony in the Florida Action. Complaint ¶ 1.",
"The Complaint alleges violations of Section 17(a) and (b) and Section 10(b) and Rule 10b-5, just like the Florida Action. Those claims are based on the allegations that Mr. Thompson’s newsletters were “misleading” because they disclosed that he “may” or “might” sell stock that he had received, and failed adequately to disclose his compensation, just like the Florida Action. Id. ¶¶ 3, 5. E. The District Court’s Decision At the urging of the SEC, the District Court denied Mr. Thompson’s motions to dismiss regarding the prior Florida action and the New York agreement.8 With respect to the issue of res judicata, the District Court appeared to rely on the facts that the particular transactions at issue in the New York case were “not mentioned in the Florida Complaint” while the New York Complaint did not allege the role of Kevin Sepe and his associates or even mention them. ECF No.",
"64: Opinion at 22. Instead of focusing on the fact that all of the Sepe transactions were 8 Because the defendant was relying on filings from the Florida Action and other documents, the Court converted the motion into one for summary judgment. 14 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 19 of 30 actually at issue in the Florida Action, and that res judicata applies where the subsequent claim was or could have been asserted in the first proceeding, the District Court stated that “for purposes of res judicata, the scope of litigation is framed by the complaint at the time it is filed.” Opinion at 25. With respect to Mr. Thompson’s settlement agreement with the DOE, the District Court did not address the specific issue of whether the DOE was bound by its clear agreement to present and to recommend a settlement to the Commission. Opinion at 26.",
"The Court confirmed that there were, in any event, “triable issues” of fact concerning the operation of estoppel or breach. Opinion at 26. F. The Criminal Plea As had been anticipated, the SEC’s decision to refuse to proceed with the settlement was predicated on its learning that, after extensive delays, the New York County District Attorney’s Office (“DA’s Office”) had procured the cooperation of Keven Sepe and was proceeding with an indictment of Mr. Thompson and others. That Indictment was filed on September 11, 2014, and contained more than 80 charges ranging from a B to an E level felony. From 2014 on, that action was litigated in New York State Supreme Court and as of August 2017 only 7 E felony counts remained. At that point, the DA’s Office offered Mr. Thompson the opportunity to plead to two particular transactions, Recycle Tech and Blue Gem, and pay a total of $896,000.00, and receive a sentence of a conditional discharge.",
"As part of a “repleader” arrangement, Mr. Thompson also plead guilty to one count of a Martin Act Scheme to Defraud; that plea would be withdrawn upon payment of the settlement amount. Mr. Thompson was given one year to pay the settlement figure of $896,000.00. As we have previously advised this Court, Mr. Thompson was ultimately not able to pay that amount. Years earlier, in 2010 and 2011, the Thompson family had established trusts and 15 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 20 of 30 the income earned by Mr. Thompson from his business and real estate that was purchased was placed into two trusts. Since he was indicted by the DA’s Office in 2014, Mr. Thompson had lost any ability to earn significant income, and the family had accessed the funds in trust to pay virtually all of the expenses for Mr. and Mrs. Thompson and their three young children.",
"Over the same time period, Mr. Thompson’s marriage failed, and his ex-wife became increasingly determined to gain control of any assets that remained. After Mr. Thompson entered into the agreement with the D.A.’s Office in 2017, she filed litigations designed to prevent any disbursements from the trusts of funds to pay the disgorgement, although the funds in that trust were the direct proceeds of the transactions at issue in the SEC and in the charges filed in New York. Ultimately she prevailed in those litigations and her father now controls the trusts. As a result, the amounts set forth in the agreement with the D.A. were never paid. Because those amounts were not paid, Mr. Thompson was then sentenced to serve a year in jail, and he is currently incarcerated. ARGUMENT POINT I BECAUSE THE SEC HAS FAILED TO DEMONSTRATE THAT THERE ARE NO ISSUES OF FACT PERTAINING TO MR. THOMPSON’S DEFENSES, SUMMARY JUDGMENT SHOULD BE DENIED Mr. Thompson has, from the outset, asserted as a defense that the SEC’s claims in this case are barred under the doctrine of res judicata.",
"Defendant established that the SEC, in two different proceedings, pursued claims and sanctions that are predicated on a series of transactions involving the same individuals during the same time period; the SEC in the Florida Action even litigated whether all of these transactions were properly part of that proceeding, and won. All of the Sepe transactions, including Recycle Tech and Blue Gem, were specifically addressed in that case, and relief was expressly sought based on those same transactions. 16 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 21 of 30 Notably, the defense relied in large part on a decision issued by the District Court that was overseeing this case, Judge Katherine B. Forrest.",
"That decision confirmed that res judicata “precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Simmtech Co. v. Citibank, N.A., No. 13-cv-6768 (KBF), 2016 U.S. Dist. LEXIS 102698, at *17 (S.D.N.Y. Aug. 3, 2016), aff’d, 697 F. App’x 35 (2d Cir. 2007) (internal citations omitted) (emphasis added). In that decision, Judge Forrest addressed specifically the application of res judicata in the context of claims that had not been asserted in a prior litigation. The plaintiff there insisted that the prior litigation “focused” on particular aspects of the prior transactions and so its current claims were not precluded.",
"Judge Forrest disagreed, stating that “[a]s long as the later claim arose ‘out of the same factual grouping as an earlier litigated claim,’ it is barred even if it ‘is based on different legal theories or seeks dissimilar or additional relief.’” Id. at *20. The bottom line is that plaintiff cannot slice and dice its theories into separate lawsuits. The doctrine of res judicata applies ‘not only to what was pleaded but also as to what could have been pleaded.’ The claims in this action could have been pleaded in the [prior] action. Plaintiff chose not to do so, and cannot have a second bite at the apple. Id. at *23 (internal citation omitted). See also Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (held that doctrine precludes not only litigation of claims raised and adjudicated in a prior litigation between the parties (and their privies) but also of claims that might have been raised in the prior litigation but were not).",
"The decision in Utility Audit Group v. Capital One, N.A., No. 14-cv-0097 (SJF)(GRB), 2015 U.S. Dist. LEXIS 40816 (E.D.N.Y. Mar. 26, 2015), underscores the clear principles that govern this case. The court discussed at some length the relevant authorities including those that plainly state that “claim preclusion ‘does not require the precluded claim to actually have been 17 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 22 of 30 litigated; its concern, rather, is that the party against whom the doctrine is asserted had a full and fair opportunity to litigate the claim.’” Id. at *30-31 (quoting EDP Med. Computer Sys. Inc. v. United States, 480 F.3d 621, 626 (2d Cir. 2014)). Further, that issue of whether a claim could have been litigated turns on whether the “same transaction or series of transactions” are involved, whether the “underlying facts are related in time, space, origin or motivation,” whether “’the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first.’” Id. at *32 (citation omitted). See also Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992); Mademoiselle Knitwear, Inc. v. Liz Claiborne, Inc., No. 98 Civ.",
"3252 (HB), 1999 U.S. Dist. LEXIS 8592, at *15, 20 (S.D.N.Y. June 9, 1999) (granting motion to dismiss claims, even though claims not asserted in prior litigation, because they arose from “the same connected series of transactions . . . -- a grouping of interrelated contracts and agreements made during the course of an ongoing business relationship” and because those claims were “in existence . . . before or during” the prior case); 7 W. 57th St. Realty Co., LLC v. CitiGroup, Inc., No. 13 Civ. 981 (PGG), 2015 U.S. Dist. LEXIS 44031, at *94 (S.D.N.Y. Mar. 31, 2015) (held that claims in subsequent action were barred where they could have been raised by counterclaim and plaintiff was “on inquiry notice” of those further claims); Smith v. City of New York, 130 F. Supp. 3d 819, 828-29 (S.D.N.Y.",
"2015), aff’d, 664 F.App’x 45 (2d Cir 2016) (granting defendant’s motion to dismiss based inter alia on res judicata effect of prior litigation because “claim that ‘could have been raised in the prior action’ is precluded by a prior judgment if the purportedly new claim ‘was sufficiently related to the claims that were asserted in the first proceeding that it should have been asserted in that proceeding”) (citation omitted).9 9 Those same precepts are equally applicable to a consent judgment obtained by the SEC. In SEC v. King Resources, the court relied on a “decree of final judgment of permanent injunction by consent, issued in y, Civil Action No. C-2858 (D. Colo. Feb. 9, 1971),” wherein the SEC “sought and successfully obtained a permanent injunction against King Resources enjoining that company from violating Section 5 of the Securities Act of 1933 [as well as] Section 17(a) of the Securities Act and Rule 10b-5.",
"Id. at 257. The court observed: 18 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 23 of 30 Notwithstanding the clarity of decisional authority, including the District Court’s own seemingly dispositive ruling in Simmtech, the District Court denied defendant’s motion. Oddly, the court failed even to acknowledge its own decision in Simmtech, or any of the other cases illustrating that res judicata is not limited to instances where the claim was actually articulated in the complaint but also includes instances in which the claim was part of the same set of transactions and could have been presented in the prior action. Opinion at 22, 26. More importantly for this motion, the District Court’s decision appears to have been based on the particular allegations contained in the SEC’s New York complaint, in which the SEC was exceedingly careful not to mention Keven Sepe and sought to obscure the precise parallels between the two cases. The District Court recognized that the Sepe transactions were litigated in Florida but could not conclude, on the record at that time, that the New York case would in fact litigate that same series of transactions.",
"As emphasized by the District Court, “the SEC does not presently allege that Sepe, Halperin and Gonzalez played any part in the five schemes at issue here, let alone the supervisory roles that they played in the Recycle Tech scheme. Indeed, these three individuals are not mentioned in the instant complaint.” Opinion at 22. Since then, discovery has confirmed that, although the SEC deliberately avoided discussing Sepe in the complaint, the claims here are precisely the same ones that were charged and incorporated by the SEC into the Florida Action. They are the series of transactions originated by Kevin Sepe and his associates, and include Blue Gem, Mass Hysteria, Lyric Jeans [T]he Colorado decree can fairly be read to extend to and enjoin the acts now charged against the defendant. The injunction of the Colorado Court, which paraphrases the language of Section 17(a) and Rule 10b-5 may properly be construed to prohibit the acts committed by King Resources which the S.E.C. now wishes to further enjoin.",
"…We therefore hold that the injunction issued by the Colorado Court in Securities & Exchange Commission v. King Resources Company, supra, is res judicata to the present suit, as to that defendant, and may properly be set up as a bar to this action. 19 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 24 of 30 and Smart Holdings.10 Because the SEC has not and cannot demonstrate that there are no facts in dispute pertaining to the defense of res judicata, its motion should be denied. POINT II THERE ARE MATERIAL FACTS IN DISPUTE REGARDING WHETHER THE SEC’S CLAIMS ARE BARRED BY THE NEW YORK SETTLEMENT On the issue of the impact of the New York settlement agreement, and whether it constituted a defense to the SEC’s claims, the District Court plainly opted not to “wade into the particulars of those facts.” Opinion at 8. The Court stated that “this action is in the beginning stages” and that summary judgment “is inappropriate on these bases at this time (and as presented, the defenses raise triable issues of fact.” Opinion at 8 (emphasis added) Issues such as apparent authority and estoppel cannot be resolved because “there are triable issues on these questions.” Opinion at 26. POINT III BY VIRTUE OF THE PLEA IN THE CRIMINAL CASE, THE SEC WOULD BE ENTITLED TO JUDGMENT RELATING TO RECYCLE TECH AND BLUE GEM Counts 12 and 46 of the Criminal Indictment charged violations of New York’s Martin Act in relation to two specific transactions, Blue Gem and Recycle Tech respectively.",
"Mr. Thompson pled guilty to those offenses and, given the elements of New York’s Martin Act, the plaintiff would be entitled to judgment in relation to those transactions. Notably, however, the SEC in this action declined to charge the Recycle Tech transaction, because it was charged in the Florida case, and so it does not seek a remedy in relation to that transaction. The plea and the allocution in the criminal action address specifically the Recycle Tech and Blue Gem transactions, and go no farther. Mr. Thompson was charged with but did not 10 This case involves one other transactions, Blast Applications, that did not involve Kevin Sepe and would arguably not be barred by the prior Florida Action.",
"20 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 25 of 30 plead guilty to any wrongdoing in relation to the other transactions at issue in this case, i.e, Blast Applications, Mass Hysteria, Lyric Jeans and Smart Holdings. Each of those transactions possessed their own unique characteristics and raised specific issues and defenses. There was no mention of or reference to other transactions in relation to the plea, those issues were not litigated or determined in the criminal case, and the plaintiff is not entitled to judgment in relation to those transactions.",
"POINT IV THE SEC HAS FAILED TO DEMONSTRATE THAT IT WOULD BE ENTITLED TO DISGORGEMENT OF ANY AMOUNT OTHER THAN $200,000 RELATING TO BLUE GEM 1. Disgorgement of Blue Gem Amounts Received by Mr. Thompson The Court has “broad equitable power to fashion appropriate remedies, including ordering that culpable defendants disgorge their profits.” SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1474 (2d Cir. 1996). In determining an amount of disgorgement, the court looks to the amount “by which the defendant was unjustly enriched.” SEC v. Banner Fund Int’l, 211 F.3d 602, 617 (D.C. Cir. 2000). While the Court is not required to determine the amount of defendant’s gains “with exactitude,” the amount of disgorgement must be based on a determination of the defendant’s “profits causally connected to the violation.” First Jersey, 101 F.3d at 1475. SEC v. Alternative Green Techs. Inc., No.",
"11 Civ. 9056 (SAS), 2014 U.S. Dist. LEXIS 173251, at *9 (S.D.N.Y. Dec. 15, 2014) (“’court must focus on the extent to which a defendant has profited from’” his violation) (citation omitted). Here, assuming that the plaintiff is entitled to an order of disgorgement against Mr. Thompson in relation to the Blue Gem transaction, the Court would have to determine the amount of profit that was received by this defendant, Anthony Thompson. According to the records of that transaction, the only amounts that actually went to or for Mr. Thompson was a 21 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 26 of 30 total of $200,000.00.",
"Thompson Declaration ¶¶ 4-6. The remainder was obtained by OTC Solutions and either disbursed by it for various transactions costs. See SEC v. McCaskey, 2002 U.S. Dist. LEXIS 4915 (S.D.N.Y. Mar. 26, 2002) (courts have discretion to reduce any disgorgement amount by transaction costs that reduce the defendant’s profit). Even assuming the continuing viability of disgorgement as a remedy, after the Supreme Court decision in Kokesh v. Securities and Exchange Commission, 137 S. Ct. 1635 (2017), the Supreme Court has also recently underscored that disgorgement must involve ill gotten gains actually received by the defendant. Honeycutt v, United States, 137 S. Ct. 1626 (2017). Because the SEC has failed to demonstrate that any amount other than the $200,000.00 was actually transferred to or obtained by Mr. Thompson and his wife, that amount constitutes the appropriate disgorgement figure. 2. Penalties and Injunctive Relief Should Not Be Awarded As is eventually acknowledged by the plaintiff in its submission, whether any penalty should be imposed, and the amount of it, are to be determined by the Court in light of all of the facts and circumstances.",
"In deciding whether a civil penalty should be assessed, the court is directed to consider “(1) the egregiousness of the defendant’s conduct; (2) the degree of the defendant’s scienter; (3) whether the defendant’s conduct created substantial losses or the risk of substantial losses to other persons; (4) whether the defendant’s conduct was isolated or recurrent; and (5) whether the penalty should be reduced due to the defendant’s demonstrated current and financial condition.” SEC v. Tavella, 77 F. Supp. 3d 353, 362 (S.D.N.Y. 2015); SEC v. Haligiannis, 470 F. Supp. 2d 373, 386 (S.D.N.Y. 2007). Courts have also considered other factors including “the adequacy of other criminal or civil sanctions to punish the defendant” and hardships to the defendant’s family. SEC v. First AmeriFirst Funding Inc., No.",
"3:07-cv-1188-D, 2008 U.S. Dist. LEXIS 36782, at *24 (N.D. Tex. May 5, 2008) (citing SEC v. Lewis, 492 F. Supp. 2d 1173, 1174 (D.S.D. 2007)); SEC v. Church 22 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 27 of 30 Extension of the Church of God, 429 F. Supp. 2d 1045, 1050 (S.D. Ind. 2005); SEC v. Balboa, No. 11 Civ. 8731 (PAC), 2015 U.S. Dist. LEXIS 87281, at *13 (S.D.N.Y. July 6, 2015) (court may consider other remedies already imposed on the defendant to determine whether a penalty is “unduly harsh under the circumstances”) (internal quotations and citations omitted); SEC v. Conaway, 695 F. Supp. 2d 534, 574 (E.D. Mich. 2010). Application of those factors have led courts to note that he “defendant’s net worth and corresponding ability to pay has proven to be one of the most important factors that district courts consider when determining how much of a civil penalty to assess.” SEC v. Perez, No. 09-cv-21977, 2011 U.S. Dist. LEXIS 132965, at *20 (S.D.",
"Fla. Nov. 17, 2011) (finding that, based on his limited net worth and disgorgement order, “a civil penalty at the low end of the scale is appropriate” and imposing a penalty of $50,000.00). See SEC v. Druffner, 802 F. Supp. 2d 293, 298-99 (D. Mass. 2011) (confirming that a court “may consider a defendant’s ability to pay when determining the amount of civil penalties to impose or whether to waive civil penalties” and holding that “imposition of civil penalties is unwarranted” in light of disgorgement order, limited resources and other criminal and civil penalties). Also at issue in imposition of penalties is the number of violations.",
"Because the civil penalties provision permits the imposition of penalties “for each violation,” courts have also had to grapple with the appropriate definition of a violation, particular where alleged conduct involves the same act committed multiple times. See Alternative Green Tech, 2014 U.S. Dist. LEXIS 173251, at *22-23 (where SEC argued that the court should impose two penalties, based on the number of statutory violations, or 56 based on the number of defendant’s acts, for a total of $36,400,000 as to corporate defendant, held that one penalty of $650,000.00 “is appropriate”); Balboa, 2015 U.S. Dist. LEXIS 87281, at *14 (where SEC sought a penalty for each transmission of inflated valuations for a total of $2.6 million, court rejected argument that each 23 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 28 of 30 transmission should be considered a separate violation and imposed two penalties for each of the securities offerings); SEC v. Elliot, No. 09 Civ. 7594 (KBF), 2012 U.S. Dist. LEXIS 82992, at *29-30 (S.D.N.Y. June 12 2012) (where court finds that Second or Third tier penalties are appropriate in relation to more than 900 sales of stock, held that “such an award would be unduly penalizing” and imposes $6,500 per transaction).",
"in relation to more than 900 sales of unregistered securities); SEC v. IShopNoMarkup.com.Inc., 126 F. Supp. 3d 318, 332-33 (E.D.N.Y. 2015), aff’d, 694 F. App’x 853 (2d Cir. 2017) (where SEC advised court that it could consider defendant’s conduct to be one violation, or “consider the sale to each of the more than 350 investors as separate violations, yielding a penalty of $38,500,000” held that “considering each sale to the 350 investors as a separate violation results in an ‘unduly penalizing amount”” and imposes penalty of $330,000 based on three unregistered offerings); SEC v. GTF Enters., No. 10-cv-258 (RA), 2015 U.S. Dist. LEXIS 20355, at *11-13 (S.D.N.Y.",
"Feb. 19, 2015) (discussing methods used by courts to determine the number of “violations” including number of statutes violated, number of transactions and holding that, because the court lacked detailed information about the defendant’s conduct, imposing a single maximum penalty against each). Here, the relevant factors support the imposition of no penalty. First, and in relation to these transactions, Mr. Thompson has already paid a penalty amount to the SEC in the Florida Action. He also entered into an agreement with the criminal authorities that called for the payment of additional amounts of approximately $896,000 and, because of inability to pay that amount, he was sentenced by the state court to a period of incarceration and remains in jail. Clear also is that, at this point, he has no money. After the Indictment in 2014, Mr. Thompson was not able to earn any significant income. His family and he at that time still had access to funds from his earlier income that had been placed into family trusts, but those were 24 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 29 of 30 used over the years to pay the living expenses of his wife, his children and himself.",
"As of 2017 and 2018, Mr. Thompson’s wife began aggressively pursuing a costly matrimonial action and even litigating to try to obtain sole custody of their children. Fortunately, Mr. Thompson eventually regained joint custody of the children. His wife then began another litigation, this one designed to gain control of the family’s remaining assets. Those litigations only further depleted the family’s assets. Some funds remain in the trusts but his wife has control of those funds. Mr. Thompson himself possesses no bank or brokerage accounts or real property. When he completes his sentence, he will start completely from scratch with no funds left to pay expenses except what he is able to earn.",
"At the same time, he has been the sole breadwinner for his wife and three young children throughout his adult life, and looks forward to continuing to provide support for the family after his release. He had obtained, and will hopefully be able to resume, a position in real estate, and his children will need from him as much financial support as he is able to provide. Thompson Decl. ¶ 13. Given these circumstances, and the seven years of litigation of these matters and the penalties that have already been imposed, no further penalty is warranted.",
"Finally, in with respect to injunctive relief, the SEC is not entitled to obtain, and the courts will not grant, injunctive relief that has already been obtained. Here, any appropriate injunctive relief was previously entered in the Florida Action and no further relief is warranted.11 CONCLUSION For the foregoing reasons, the Court should deny the SEC’s request for partial summary judgment or, in the alternative, grant judgment to the SEC in relation to the Blue Gem 11 The district court in the Florida Action did not grant any injunction against violations of Section 17(b) and in fact held that Mr. Thompson had complied with that provision. That same result should hold here, particularly because Mr. Thompson is now long removed from the securities industry and the SEC has not and cannot demonstrate any likelihood of a future violation. 25 Case 1:14-cv-09126-ALC Document 127 Filed 03/13/19 Page 30 of 30 transaction, order disgorgement in the amount of $200,000.00 obtained by Mr. Thompson, and deny penalties or injunctive relief. Dated: March 13, 2019 Respectfully, THOMPSON HINE LLP By: /s/ Maranda E. Fritz Maranda E. Fritz 335 Madison Avenue, 12th Floor New York, New York 10017 Telephone: (212) 344-5680 Maranda.Fritz@Thompsonhine.com 26"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/62165685/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Examiner’s Comments 1. This office action is in response to the terminal disclaimer received on 7/14/2021. Claims 1-20 are pending and have been examined on the merits. Claims 1-20 are allowed.
Terminal Disclaimer 2. The terminal disclaimer filed on 7/14/2021 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 10993764 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Conclusion 3. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANIEL C. CHUKWURAH whose telephone number is (571)272-4457. The examiner can normally be reached on M-F & T-F 6-3:30 IFP. 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, Hemant Desai can be reached on 571-272-4458. 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
/NATHANIEL C CHUKWURAH/Primary Examiner, Art Unit 3731 7/26/2021 | 2021-08-09T14:58:17 | [
"Examiner’s Comments 1. This office action is in response to the terminal disclaimer received on 7/14/2021. Claims 1-20 are pending and have been examined on the merits. Claims 1-20 are allowed. Terminal Disclaimer 2. The terminal disclaimer filed on 7/14/2021 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 10993764 has been reviewed and is accepted. The terminal disclaimer has been recorded. Conclusion 3. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANIEL C. CHUKWURAH whose telephone number is (571)272-4457. The examiner can normally be reached on M-F & T-F 6-3:30 IFP.",
"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, Hemant Desai can be reached on 571-272-4458. 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 /NATHANIEL C CHUKWURAH/Primary Examiner, Art Unit 3731 7/26/2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-08-15.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ÿþC i t a t i o n N r : 1 8 1 0 1 7 3 7
D e c i s i o n D a t e : 0 5 / 0 9 / 1 8 A r c h i v e D a t e : 0 5 / 0 9 / 1 8
D O C K E T N O . 1 4 - 3 4 1 4 3
D A T E : M a y 9 , 2 0 1 8
I S S U E S D E C I D E D : 6 I S S U E S R E M A N D E D : 5
O R D E R
E n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r g r a n t o f s e r v i c e c o n n e c t i o n o f t h e l e f t k n e e p r i o r t o M a r c h 6 , 2 0 1 2 i s d i s m i s s e d .
E n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r s e r v i c e c o n n e c t e d h y p e r t e n s i o n p r i o r t o A p r i l 9 , 2 0 1 3 i s d i s m i s s e d .
E n t i t l e m e n t t o a c o m p e n s a b l e e v a l u a t i o n f o r s e r v i c e c o n n e c t e d h y p e r t e n s i o n i s d i s m i s s e d .
W h e t h e r n e w a n d m a t e r i a l e v i d e n c e h a s b e e n s u b m i t t e d t o r e o p e n t h e c l a i m f o r s e r v i c e c o n n e c t i o n f o r v i s i o n p r o b l e m s i s d i s m i s s e d .
N e w a n d m a t e r i a l e v i d e n c e h a v i n g b e e n s u b m i t t e d , t h e c l a i m f o r s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s o r d e r i s r e o p e n e d .
E n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r s l e e p a p n e a i s g r a n t e d .
F I N D I N G S O F F A C T
1 . T h e V e t e r a n h a s r e q u e s t e d t h a t h i s a p p e a l f o r e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r t h e g r a n t o f s e r v i c e c o n n e c t i o n f o r a l e f t k n e e d i s a b i l i t y b e w i t h d r a w n .
2 . T h e V e t e r a n h a s r e q u e s t e d t h a t h i s a p p e a l f o r e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r t h e g r a n t o f s e r v i c e c o n n e c t i o n f o r h y p e r t e n s i o n b e w i t h d r a w n .
3 . T h e V e t e r a n h a s r e q u e s t e d t h a t h i s a p p e a l f o r a n i n c r e a s e d e v a l u a t i o n f o r h y p e r t e n s i o n b e w i t h d r a w n .
4 . T h e V e t e r a n h a s r e q u e s t e d t h a t h i s a p p e a l a s t o w h e t h e r n e w a n d m a t e r i a l e v i d e n c e h a s b e e n r e c e i v e d t o r e o p e n a c l a i m f o r s e r v i c e c o n n e c t i o n f o r v i s i o n p r o b l e m s b e w i t h d r a w n .
5 . A M a y 2 0 0 8 B o a r d d e c i s i o n d e n i e d t h e V e t e r a n e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y . T h e V e t e r a n w a s n o t i f i e d o f t h a t d e c i s i o n , b u t d i d n o t i n i t i a t e a n a p p e a l .
6 . S o m e o f t h e e v i d e n c e r e c e i v e d s i n c e M a y 2 0 0 8 , w h e n c o n s i d e r e d b y i t s e l f o r i n c o n n e c t i o n w i t h e v i d e n c e p r e v i o u s l y a s s e m b l e d , r e l a t e s t o a n u n e s t a b l i s h e d f a c t n e c e s s a r y t o s u b s t a n t i a t e t h e c l a i m , a n d r a i s e s a r e a s o n a b l e p o s s i b i l i t y o f s u b s t a n t i a t i n g t h e c l a i m o f s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y .
7 . T h e r e i s a n a p p r o x i m a t e b a l a n c e o f p o s i t i v e a n d n e g a t i v e e v i d e n c e a s t o w h e t h e r t h e V e t e r a n s s l e e p a p n e a i s r e l a t e d t o h i s m i l i t a r y s e r v i c e .
C O N C L U S I O N S O F L A W
1 . T h e c r i t e r i a f o r w i t h d r a w a l o f t h e a p p e a l o f t h e i s s u e o f e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r g r a n t o f s e r v i c e c o n n e c t i o n o f t h e l e f t k n e e p r i o r t o M a r c h 6 , 2 0 1 2 h a v e b e e n m e t . 3 8 U . S . C . § 7 1 0 5 ( 2 0 1 2 ) ; 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) .
2 . T h e c r i t e r i a f o r w i t h d r a w a l o f t h e a p p e a l o f t h e i s s u e o f e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r g r a n t o f s e r v i c e c o n n e c t i o n o f h y p e r t e n s i o n p r i o r t o A p r i l 9 , 2 0 1 3 h a v e b e e n m e t . 3 8 U . S . C . § 7 1 0 5 ( 2 0 1 2 ) ; 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) .
3 . T h e c r i t e r i a f o r w i t h d r a w a l o f t h e a p p e a l o f t h e i s s u e o f a n i n c r e a s e d e v a l u a t i o n f o r s e r v i c e c o n n e c t e d h y p e r t e n s i o n h a v e b e e n m e t . 3 8 U . S . C . § 7 1 0 5 ( 2 0 1 2 ) ; 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) .
4 . T h e c r i t e r i a f o r w i t h d r a w a l o f t h e a p p e a l o f t h e i s s u e o f w h e t h e r n e w a n d m a t e r i a l e v i d e n c e h a s b e e n s u b m i t t e d t o r e o p e n s e r v i c e c o n n e c t i o n f o r v i s i o n p r o b l e m s h a v e b e e n m e t . 3 8 U . S . C . § 7 1 0 5 ( 2 0 1 2 ) ; 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) .
5 . T h e M a y 2 0 0 8 B o a r d d e c i s i o n , w h i c h d e n i e d t h e V e t e r a n s c l a i m o f e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y , i s f i n a l . 3 8 U . S . C . § 7 1 0 5 ( c ) ( 2 0 1 2 ) ; 3 8 C . F . R . § § 3 . 1 0 4 , 3 . 1 5 6 , 2 0 . 1 1 0 0 ( 2 0 1 7 ) .
6 . T h e e v i d e n c e r e c e i v e d s i n c e t h e M a y 2 0 0 8 B o a r d d e c i s i o n i s n e w a n d m a t e r i a l , a n d t h e c l a i m o f e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y i s r e o p e n e d . 3 8 U . S . C . § 5 1 0 8 ( 2 0 1 2 ) ; 3 8 C . F . R . § 3 . 1 5 6 ( 2 0 1 7 ) .
7 . T h e c r i t e r i a f o r e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r s l e e p a p n e a a r e m e t . 3 8 U . S . C . § § 1 1 1 0 , 1 1 3 1 , 5 1 0 3 , 5 1 0 3 A , 5 1 0 7 ( 2 0 1 2 ) ; 3 8 C . F . R . § § 3 . 1 0 2 , 3 . 3 0 3 ( 2 0 1 7 ) .
R E A S O N S A N D B A S E S F O R F I N D I N G S A N D C O N C L U S I O N S
T h e V e t e r a n s e r v e d o n a c t i v e d u t y f r o m O c t o b e r 1 9 8 9 t o S e p t e m b e r 1 9 9 3 .
T h e s e m a t t e r s c o m e b e f o r e t h e B o a r d o f V e t e r a n s A p p e a l s ( B o a r d ) o n a p p e a l f r o m F e b r u a r y 2 0 1 3 , J u l y 2 0 1 4 , a n d S e p t e m b e r 2 0 1 4 r a t i n g d e c i s i o n s o f t h e D e p a r t m e n t o f V e t e r a n s A f f a i r s ( V A ) R e g i o n a l O f f i c e ( R O ) .
I n J a n u a r y 2 0 1 8 , t h e V e t e r a n t e s t i f i e d a t a B o a r d v i d e o c o n f e r e n c e h e a r i n g b e f o r e t h e u n d e r s i g n e d V e t e r a n s L a w J u d g e . A t r a n s c r i p t o f s u c h p r o c e e d i n g i s a s s o c i a t e d w i t h t h e c l a i m s f i l e .
W i t h d r a w a l s
A s u b s t a n t i v e a p p e a l m a y b e w i t h d r a w n o n t h e r e c o r d o r i n w r i t i n g a t a n y t i m e b e f o r e t h e B o a r d p r o m u l g a t e s a d e c i s i o n . 3 8 C . F . R . § 2 0 . 2 0 2 ( 2 0 1 7 ) . W i t h d r a w a l m a y b e m a d e b y t h e a p p e l l a n t o r b y h i s o r h e r a u t h o r i z e d r e p r e s e n t a t i v e . 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) . A t h i s J a n u a r y 2 0 1 8 B o a r d h e a r i n g , t h e V e t e r a n i n d i c a t e d t h a t h e w i s h e d t o w i t h d r a w t h e i s s u e s o f w h e t h e r n e w a n d m a t e r i a l e v i d e n c e h a d b e e n s u b m i t t e d t o r e o p e n t h e c l a i m o f s e r v i c e c o n n e c t i o n f o r v i s i o n p r o b l e m s , e n t i t l e m e n t t o a n i n c r e a s e d e v a l u a t i o n f o r h y p e r t e n s i o n , e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r h y p e r t e n s i o n , a n d e n t i t l e m e n t t o a n e a r l i e r e f f e c t i v e d a t e f o r a l e f t k n e e d i s a b i l i t y . B e c a u s e t h e V e t e r a n h a s c l e a r l y i n d i c a t e d h i s w i s h t o w i t h d r a w t h e s e i s s u e s , t h e r e r e m a i n n o a l l e g a t i o n s o f e r r o r s o f f a c t o r l a w f o r a p p e l l a t e c o n s i d e r a t i o n . S e e 3 8 C . F . R . § 2 0 . 2 0 4 ( 2 0 1 7 ) . U n d e r 3 8 U . S . C . § 7 1 0 5 ( 2 0 1 2 ) , t h e B o a r d m a y d i s m i s s a n y a p p e a l w h i c h f a i l s t o a l l e g e s p e c i f i c e r r o r o f f a c t o r l a w i n t h e d e t e r m i n a t i o n b e i n g a p p e a l e d . A c c o r d i n g l y , t h e B o a r d d o e s n o t h a v e j u r i s d i c t i o n t o r e v i e w t h e i s s u e s a n d t h e y a r e t h e r e f o r e d i s m i s s e d .
W h e t h e r n e w a n d m a t e r i a l e v i d e n c e h a s b e e n s u b m i t t e d t o r e o p e n a c l a i m f o r s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s o r d e r , a n d i f s o , w h e t h e r s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s o r d e r t o i n c l u d e a s s e c o n d a r y t o t h e l e f t k n e e d i s o r d e r i s w a r r a n t e d .
I n o r d e r t o r e o p e n a c l a i m w h i c h h a s b e e n d e n i e d b y a f i n a l d e c i s i o n , t h e c l a i m a n t m u s t p r e s e n t n e w a n d m a t e r i a l e v i d e n c e . 3 8 U . S . C . § 5 1 0 8 . N e w e v i d e n c e m e a n s e x i s t i n g e v i d e n c e n o t p r e v i o u s l y s u b m i t t e d t o V A . M a t e r i a l e v i d e n c e m e a n s e x i s t i n g e v i d e n c e t h a t , b y i t s e l f o r w h e n c o n s i d e r e d w i t h p r e v i o u s e v i d e n c e o f r e c o r d , r e l a t e s t o a n u n e s t a b l i s h e d f a c t n e c e s s a r y t o s u b s t a n t i a t e t h e c l a i m . N e w a n d m a t e r i a l e v i d e n c e c a n b e n e i t h e r c u m u l a t i v e n o r r e d u n d a n t o f t h e e v i d e n c e o f r e c o r d a t t h e t i m e o f t h e l a s t p r i o r f i n a l d e n i a l o f t h e c l a i m , a n d m u s t r a i s e a r e a s o n a b l e p o s s i b i l i t y o f s u b s t a n t i a t i n g t h e c l a i m . 3 8 C . F . R . § 3 . 1 5 6 ( a ) . F o r p u r p o s e s o f r e o p e n i n g a c l a i m , t h e c r e d i b i l i t y o f n e w l y s u b m i t t e d e v i d e n c e i s g e n e r a l l y p r e s u m e d . S e e J u s t u s v . P r i n c i p i , 3 V e t . A p p . 5 1 0 , 5 1 3 ( 1 9 9 2 ) ( i n d e t e r m i n i n g w h e t h e r e v i d e n c e i s n e w a n d m a t e r i a l , t h e c r e d i b i l i t y o f n e w l y p r e s e n t e d e v i d e n c e i s t o b e p r e s u m e d u n l e s s t h e e v i d e n c e i s i n h e r e n t l y i n c r e d i b l e o r b e y o n d t h e c o m p e t e n c e o f t h e w i t n e s s ) .
T h e l a n g u a g e o f 3 8 C . F . R . § 3 . 1 5 6 ( a ) c r e a t e s a l o w t h r e s h o l d f o r f i n d i n g n e w a n d m a t e r i a l e v i d e n c e , a n d v i e w s t h e p h r a s e r a i s e s a r e a s o n a b l e p o s s i b i l i t y o f s u b s t a n t i a t i n g t h e c l a i m a s e n a b l i n g r a t h e r t h a n p r e c l u d i n g r e o p e n i n g . E v i d e n c e r a i s e s a r e a s o n a b l e p o s s i b i l i t y o f s u b s t a n t i a t i n g t h e c l a i m , i f i t w o u l d t r i g g e r V A s d u t y t o p r o v i d e a n e x a m i n a t i o n i n a d j u d i c a t i n g a n o n - f i n a l c l a i m . S h a d e v . S h i n s e k i , 2 4 V e t . A p p . 1 1 0 ( 2 0 1 0 ) .
I n M a y 2 0 0 8 t h e B o a r d d e n i e d t h e V e t e r a n s c l a i m f o r e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y . T h e c l a i m w a s d e n i e d b e c a u s e t h e e v i d e n c e f a i l e d t o s h o w t h a t t h e r e w a s a d i a g n o s e d r i g h t k n e e d i s a b i l i t y . T h e V e t e r a n d i d n o t a p p e a l t h e M a y 2 0 0 8 B o a r d d e c i s i o n a n d a s s u c h , t h e M a y 2 0 0 8 d e c i s i o n b e c a m e f i n a l . S e e 3 8 U . S . C . § 7 1 0 5 ; 3 8 C . F . R . § § 3 . 1 0 4 , 3 . 1 5 6 , 2 0 . 1 1 0 0 ; s e e a l s o B o n d v . S h i n s e k i , 6 5 9 F . 3 d 1 3 6 2 , 1 3 6 7 6 8 ( F e d . C i r . 2 0 1 1 ) .
I n O c t o b e r 2 0 1 2 t h e V e t e r a n f i l e d a n o t h e r c l a i m t o r e o p e n t h e i s s u e o f s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y a n d i n F e b r u a r y 2 0 1 3 t h e R O d e n i e d t h e V e t e r a n s c l a i m t o r e o p e n . T h e V e t e r a n p e r f e c t e d a n a p p e a l a s t o t h i s r a t i n g d e c i s i o n .
S i n c e t h e f i n a l M a y 2 0 0 8 B o a r d d e c i s i o n , d u r i n g t h e J a n u a r y 2 0 1 8 h e a r i n g b e f o r e t h e B o a r d t h e V e t e r a n p r e s e n t e d t h e s e c o n d a r y s e r v i c e c o n n e c t i o n t h e o r y t h a t h e h u r t h i s r i g h t k n e e b e c a u s e h i s l e f t k n e e m a d e i t m o r e s u s c e p t i b l e t o i n j u r y . S e e B o a r d H e a r i n g T r a n s c r i p t p . 1 8 . T h e V e t e r a n n o t e d t h a t h e r e q u i r e d s u r g e r y f o r t h e s w e l l i n g o f t h e r i g h t k n e e i n 2 0 1 1 f o l l o w i n g a n i n j u r y d u r i n g a p a i n t b a l l g a m e . T h e r e c o r d i n c l u d e s t r e a t m e n t f r o m t h e U C S a n D i e g o H e a l t h S y s t e m i n d i c a t i n g t h a t i n N o v e m b e r 2 0 1 1 t h e V e t e r a n r u p t u r e d h i s b i l a t e r a l p a t e l l a r t e n d o n s a n d r e q u i r e d o p e r a t i o n a f e w d a y s l a t e r f o r s u c h i n j u r y . S e e N o v e m b e r 2 0 1 1 U C S a n D i e g o T r e a t m e n t R e c o r d s ; M e d i c a l T r e a t m e n t R e c o r d w i t h r e c e i p t d a t e o f 4 / 2 4 / 1 2 . M o r e o v e r , V A t r e a t m e n t r e c o r d s s i n c e t h e l a s t f i n a l d e n i a l s h o w X - r a y f i n d i n g s o f d i f f u s e o s t e o p e n i a , a n d m i l d m e d i a l f e m o r a l t i b i a l j o i n t s p a c e n a r r o w i n g . S e e M a y 2 0 1 2 X r a y f i n d i n g s o n C A P R I r e c o r d s w i t h r e c e i p t d a t e o f J u n e 2 0 1 3 . T h e V e t e r a n h a s a l s o s u b m i t t e d r e c e n t t r e a t m e n t r e c o r d s f o r h i s r i g h t k n e e d i s a b i l i t y f r o m t h e U C S D D e p a r t m e n t o f O r t h o p e d i c s u r g e r y i n d i c a t i n g t h a t h e h a d s e v e r e p a i n a n d l i m i t a t i o n o f m o t i o n o f t h e r i g h t k n e e r e s u l t i n g f r o m h i s p r e v i o u s k n e e s u r g e r i e s .
T h i s e v i d e n c e i s n e w a n d m a t e r i a l e v i d e n c e b e c a u s e i t w a s n o t o f r e c o r d a t t h e t i m e o f t h e f i n a l B o a r d d e c i s i o n i n M a y 2 0 0 8 , a n d i n d i c a t e s t h e V e t e r a n h a s c u r r e n t s y m p t o m s w h i c h m a y b e r e l a t e d t o t h e V e t e r a n s c l a i m e d r i g h t k n e e d i s a b i l i t y . T h e B o a r d f i n d s t h i s e v i d e n c e w o u l d t r i g g e r V A s d u t y t o p r o v i d e a n e x a m i n a t i o n a n d o p i n i o n i n a d j u d i c a t i n g a n o n - f i n a l c l a i m . A c c o r d i n g l y , t h e B o a r d f i n d s t h i s n e w e v i d e n c e r a i s e s a r e a s o n a b l e p o s s i b i l i t y o f s u b s t a n t i a t i n g t h e c l a i m o f e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y . S e e S h a d e , 2 4 V e t . A p p . 1 1 0 .
E n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r s l e e p a p n e a .
A v e t e r a n i s e n t i t l e d t o V A d i s a b i l i t y c o m p e n s a t i o n i f t h e r e i s a d i s a b i l i t y r e s u l t i n g f r o m p e r s o n a l i n j u r y s u f f e r e d o r d i s e a s e c o n t r a c t e d i n t h e l i n e o f d u t y i n a c t i v e s e r v i c e , o r f o r a g g r a v a t i o n o f a p r e e x i s t i n g i n j u r y s u f f e r e d o r d i s e a s e c o n t r a c t e d i n t h e l i n e o f d u t y i n a c t i v e s e r v i c e . 3 8 U . S . C . § § 1 1 1 0 , 1 1 3 1 .
G e n e r a l l y , t o e s t a b l i s h a r i g h t t o c o m p e n s a t i o n f o r a p r e s e n t d i s a b i l i t y , a v e t e r a n m u s t s h o w : ( 1 ) a p r e s e n t d i s a b i l i t y ; ( 2 ) a n i n - s e r v i c e i n c u r r e n c e o r a g g r a v a t i o n o f a d i s e a s e o r i n j u r y ; a n d ( 3 ) a c a u s a l r e l a t i o n s h i p b e t w e e n t h e p r e s e n t d i s a b i l i t y a n d t h e d i s e a s e o r i n j u r y i n c u r r e d o r a g g r a v a t e d d u r i n g s e r v i c e , t h e s o - c a l l e d n e x u s r e q u i r e m e n t . S h e d d e n v . P r i n c i p i , 3 8 1 F . 3 d 1 1 6 3 , 1 1 6 7 ( F e d . C i r . 2 0 0 4 ) .
I n G i l b e r t v . D e r w i n s k i , 1 V e t . A p p . 4 9 , 5 3 ( 1 9 9 0 ) , t h e U n i t e d S t a t e s C o u r t o f A p p e a l s f o r V e t e r a n s C l a i m s s t a t e d t h a t a v e t e r a n n e e d o n l y d e m o n s t r a t e t h a t t h e r e i s a n a p p r o x i m a t e b a l a n c e o f p o s i t i v e a n d n e g a t i v e e v i d e n c e i n o r d e r t o p r e v a i l . T o d e n y a c l a i m o n i t s m e r i t s , t h e p r e p o n d e r a n c e o f t h e e v i d e n c e m u s t b e a g a i n s t t h e c l a i m . S e e A l e m a n y v . B r o w n , 9 V e t . A p p . 5 1 8 , 5 1 9 ( 1 9 9 6 ) ( c i t i n g G i l b e r t , 1 V e t . A p p . a t 5 4 ) .
T h e f i r s t e l e m e n t o f s e r v i c e c o n n e c t i o n u n d e r S h e d d e n i s m e t . A F e b r u a r y 2 0 1 5 V A e x a m i n a t i o n r e p o r t r e v e a l e d a d i a g n o s i s o f o b s t r u c t i v e s l e e p a p n e a . T h e r e f o r e , t h e V e t e r a n h a s a c u r r e n t d i s a b i l i t y o f o b s t r u c t i v e s l e e p a p n e a .
T h e s e c o n d e l e m e n t o f s e r v i c e c o n n e c t i o n u n d e r S h e d d e n i s a l s o m e t . A t h i s J a n u a r y 2 0 1 8 h e a r i n g t h e V e t e r a n t e s t i f i e d t h a t h e u s e d a C P A P m a c h i n e . T h e V e t e r a n s w i f e s u b m i t t e d a s t a t e m e n t i n A u g u s t 2 0 1 4 t h a t c o r r o b o r a t e s t h e V e t e r a n s s t a t e m e n t o f s n o r i n g d u r i n g s e r v i c e . T h e V e t e r a n a n d h i s w i f e a r e c o m p e t e n t t o r e p o r t o b s e r v a b l e s y m p t o m s i n c l u d i n g c h a n g e s i n s l e e p h a b i t s a n d s n o r i n g . S e e J a n d r e a u v . N i c h o l s o n , 4 9 2 F . 3 d 1 3 7 2 ( F e d . C i r . 2 0 0 7 ) . T h e r e f o r e , t h e B o a r d f i n d s t h a t t h e V e t e r a n e x p e r i e n c e d s n o r i n g d u r i n g s e r v i c e .
T h e B o a r d f i n d s t h a t t h e t h i r d e l e m e n t o f S h e d d e n i s a l s o m e t .
I n i t i a l l y , t h e B o a r d n o t e s t h a t a r e p o r t a n d o p i n i o n w e r e r e n d e r e d b y a V A e x a m i n e r i n F e b r u a r y 2 0 1 5 r e g a r d i n g t h e V e t e r a n s s l e e p a p n e a . A l t h o u g h t h e e x a m i n e r d i d n o t e x a m i n e t h e V e t e r a n i n p e r s o n , h e m a d e n o t e o f h i s p r i o r d i a g n o s i s o f s l e e p a p n e a , i n a d d i t i o n t o t h e V e t e r a n s u s e o f t h e C P A P m a c h i n e . T h e e x a m i n e r f o u n d t h a t t h e V e t e r a n s s l e e p a p n e a w a s l e s s l i k e l y t h a n n o t c a u s e d b y h i s s e r v i c e , a s t h e r e w e r e n o c o m p l a i n t s o f c o n t i n u o u s s n o r i n g o r f a t i g u e i n h i s s e r v i c e t r e a t m e n t r e c o r d s , a n d t h e r e w a s i n s u f f i c i e n t e v i d e n c e t h a t t h e V e t e r a n e x p e r i e n c e d u n d i a g n o s e d s l e e p a p n e a i n s e r v i c e .
T h e r e a f t e r , i n F e b r u a r y 2 0 1 8 t h e V e t e r a n s u b m i t t e d a p o s i t i v e o p i n i o n f o r h i s c l a i m e d s l e e p a p n e a b y D r . C . S . D r . C . S . n o t e d t h a t h e r e v i e w e d t h e V e t e r a n s s e r v i c e t r e a t m e n t r e c o r d s a n d h i s m e d i c a l r e c o r d s s i n c e h i s s e r v i c e d i s c h a r g e a n d a l s o r e v i e w e d h i s p r e v i o u s s l e e p s t u d y i n d e t a i l . D r . C . S . n o t e d t h a t s l e e p a p n e a d o e s n o t c o m e o n s u d d e n l y , b u t d e v e l o p s a n d w o r s e n s . H e n o t e d t h a t t h e d e v e l o p m e n t o f s l e e p a p n e a t a k e s p l a c e o v e r t h e c o u r s e o f a n i n d i v i d u a l s a d u l t h o o d , b e g i n n i n g u s u a l l y w i t h m i l d s n o r i n g a n d g r a d u a l l y w o r s e n i n g l e a d i n g t o m o r e d i s r u p t i v e s n o r i n g , f r e q u e n t b r e a t h i n g p a u s e s , c a r d i a c i n v o l v e m e n t a n d s l e e p i m p a i r m e n t . D r . C . S . n o t e d t h a t t h e V e t e r a n h a d n o c o m p l a i n t s o f b r e a t h i n g d i f f i c u l t i e s o r p o o r s l e e p q u a l i t y p r i o r t o h i s s e r v i c e a n d h i s s y m p t o m s o f s l e e p a p n e a b e g a n d u r i n g a c t i v e d u t y . T h e r e f o r e , D r . C . S . s t a t e d t h a t t h e V e t e r a n s s l e e p a p n e a m o r e l i k e l y t h a n n o t h a d i t s o n s e t d u r i n g t h e V e t e r a n s s e r v i c e .
T h e B o a r d w e i g h e d t h e V A e x a m i n e r s o p i n i o n , t h e o p i n i o n o f D r . C . S . , a n d t h e c o m p e t e n t l a y s t a t e m e n t s . T h e B o a r d c o n c l u d e s t h a t w h e n c o n s i d e r i n g t h e V e t e r a n s c o m p e t e n t l a y s t a t e m e n t s , w h i c h s h o w t h e V e t e r a n e x p e r i e n c e d c h a n g e s i n s l e e p h a b i t s a n d s n o r i n g d u r i n g s e r v i c e w h i c h h a v e c o n t i n u e d t o t h e p r e s e n t t i m e , i n c o n n e c t i o n w i t h D r . C . S . s p o s i t i v e n e x u s o p i n i o n a s w e l l a s t h e d i a g n o s i s o f s l e e p a p n e a , i t w i l l r e s o l v e r e a s o n a b l e d o u b t i n f a v o r o f t h e V e t e r a n .
A f f o r d i n g t h e f u l l b e n e f i t o f t h e d o u b t t o t h e V e t e r a n s s t a t e m e n t s , t h e B o a r d f i n d s t h a t e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n i s i n o r d e r .
R E M A N D E D I S S U E S
E n t i t l e m e n t t o a n e v a l u a t i o n i n e x c e s s o f 2 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d l o w b a c k d i s a b i l i t y , a n e v a l u a t i o n i n e x c e s s o f 3 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d m i g r a i n e d i s a b i l i t y , a n d a n e v a l u a t i o n i n e x c e s s o f 1 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y ; e n t i t l e m e n t t o s e r v i c e c o n n e c t i o n f o r a r i g h t k n e e d i s a b i l i t y , t o i n c l u d e a s s e c o n d a r y t o s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y ; a n d e n t i t l e m e n t t o a t o t a l r a t i n g b a s e d o n i n d i v i d u a l u n e m p l o y a b i l i t y ( T D I U ) a r e r e m a n d e d f o r f u r t h e r d e v e l o p m e n t .
T h e V e t e r a n c o n t e n d s t h a t h e i s e n t i t l e d t o a n e v a l u a t i o n i n e x c e s s o f 2 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d l o w b a c k d i s a b i l i t y , a n e v a l u a t i o n i n e x c e s s o f 3 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d m i g r a i n e d i s a b i l i t y , a n d a n e v a l u a t i o n i n e x c e s s o f 1 0 p e r c e n t f o r a s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y . F u r t h e r m o r e , t h e V e t e r a n c o n t e n d s t h a t h i s r i g h t k n e e d i s a b i l i t y w a s c a u s e d o r a g g r a v a t e d b y h i s s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y . B e f o r e a d e c i s i o n c a n b e r e a c h e d o n t h e s e c l a i m s , a r e m a n d i s n e c e s s a r y t o e n s u r e t h a t t h e r e i s a c o m p l e t e r e c o r d u p o n w h i c h t o d e c i d e t h e V e t e r a n s c l a i m s a n d t o a f f o r d t h e V e t e r a n e v e r y p o s s i b l e c o n s i d e r a t i o n . S e e 3 8 U . S . C . § 5 1 0 3 A ( 2 0 1 2 ) ; 3 8 C . F . R . § 3 . 1 5 9 ( 2 0 1 7 ) .
U n d e r t h e V A s d u t y t o a s s i s t , V A m u s t p r o v i d e a m e d i c a l e x a m i n a t i o n o r o b t a i n a m e d i c a l o p i n i o n i f n e c e s s a r y t o d e c i d e a c l a i m . S e e 3 8 U . S . C . § 5 1 0 3 A ( d ) ; 3 8 C . F . R . § 3 . 1 5 9 ( c ) ( 4 ) . W h i l e t h e m e r e p a s s a g e o f t i m e d o e s n o t r e n d e r i n a d e q u a t e a n e x a m i n a t i o n t h a t w a s o t h e r w i s e a d e q u a t e f o r r a t i n g p u r p o s e s w h e n i t w a s p r e p a r e d , a n e w e x a m i n a t i o n i s a p p r o p r i a t e w h e n a v e t e r a n a s s e r t s t h a t t h e d i s a b i l i t y i n q u e s t i o n h a s u n d e r g o n e a n i n c r e a s e i n s e v e r i t y s i n c e t h e l a s t e x a m i n a t i o n . S e e , e . g . , S n u f f e r v . G o b e r , 1 0 V e t . A p p . 4 0 0 , 4 0 2 - 0 3 ( 1 9 9 7 ) ; V A O P G C P R E C 1 1 - 9 5 ( 1 9 9 5 ) .
R e g a r d i n g h i s c l a i m s f o r i n c r e a s e d r a t i n g s , a t h i s J a n u a r y 2 0 1 8 B o a r d h e a r i n g , t h e V e t e r a n r e p o r t e d t h a t h e e x p e r i e n c e d a w o r s e n i n g o f h i s s e r v i c e - c o n n e c t e d l o w b a c k , m i g r a i n e a n d l e f t k n e e d i s a b i l i t i e s . S p e c i f i c a l l y , t h e V e t e r a n r e p o r t e d r e g a r d i n g h i s l o w b a c k t h a t h e e x p e r i e n c e d f l a r e u p s , a n d t h a t h e w a s u n a b l e t o s i t f o r m o r e t h a n 1 0 - 1 5 m i n u t e s . T h e V e t e r a n f u r t h e r t e s t i f i e d t h a t d u r i n g a f l a r e u p h e n e e d e d h e l p g e t t i n g o u t o f b e d , g e t t i n g i n a n d o u t o f t h e t u b a n d s h o w e r , a n d i n a n d o u t o f t h e c a r . T h e V e t e r a n c o n t e n d e d t h a t h i s l e f t k n e e h a s g o t t e n w o r s e i n t h a t h e u s e d t o b e a b l e t o p a r t i c i p a t e i n a c t i v i t i e s w i t h h i s f a m i l y t h a t h e i s n o w u n a b l e t o d o . F i n a l l y , r e g a r d i n g h i s m i g r a i n e s t h e V e t e r a n r e p o r t e d t h a t h e g e t s t h e m d a i l y , t h e w o r s t l a s t i n g a b o u t s i x h o u r s . H e n o t e d f u r t h e r t h a t h e h a s t o t a k e o v e r t h e c o u n t e r m e d i c a t i o n i n a d d i t i o n t o h i s p r e s c r i p t i o n m e d i c a t i o n f o r t h e p a i n .
I n l i g h t o f t h i s e v i d e n c e , t h e B o a r d f i n d s t h a t n e w V A e x a m i n a t i o n s a r e b o t h w a r r a n t e d a n d n e c e s s a r y t o d e t e r m i n e t h e c u r r e n t n a t u r e a n d s e v e r i t y o f t h e V e t e r a n s s e r v i c e - c o n n e c t e d l o w b a c k , m i g r a i n e a n d l e f t k n e e d i s a b i l i t i e s . S e e 3 8 U . S . C . § 5 1 0 3 A ( d ) ; 3 8 C . F . R . § 3 . 1 5 9 ( c ) ( 4 ) ; S n u f f e r , 1 0 V e t . A p p . a t 4 0 2 - 0 3 .
R e g a r d i n g s e r v i c e c o n n e c t i o n f o r h i s r i g h t k n e e d i s o r d e r , t h e V e t e r a n a l l e g e s t h a t h e h a s a c u r r e n t r i g h t k n e e d i s a b i l i t y w h i c h i s s e c o n d a r y t o h i s l e f t k n e e d i s o r d e r . S e r v i c e c o n n e c t i o n m a y b e g r a n t e d f o r d i s a b i l i t y t h a t i s c a u s e d o r a g g r a v a t e d b y a s e r v i c e - c o n n e c t e d d i s a b i l i t y . 3 8 C . F . R . § 3 . 3 1 0 ( 2 0 1 7 ) ; A l l e n v . B r o w n , 7 V e t . A p p . 4 3 9 ( 1 9 9 5 ) . T h e B o a r d n o t e s t h a t a n o p i n i o n s h o u l d b e r e n d e r e d w i t h r e g a r d t o w h e t h e r t h e V e t e r a n s r i g h t k n e e d i s a b i l i t y i s c a u s e d o r a g g r a v a t e d b y h i s s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y a s s u c h o p i n i o n h a s n o t b e e n o b t a i n e d .
R e m a n d i s a l s o r e q u i r e d t o a t t e m p t t o o b t a i n p e r t i n e n t t r e a t m e n t r e c o r d s f r o m t h e D e p a r t m e n t o f N a v y i n a d d i t i o n t o t h e S o c i a l S e c u r i t y A d m i n i s t r a t i o n ( S S A ) r e c o r d s . A t h i s J a n u a r y 2 0 1 8 B o a r d h e a r i n g , t h e V e t e r a n t e s t i f i e d t h a t h e l a s t w o r k e d f o r t h e D e p a r t m e n t o f t h e N a v y i n 2 0 1 l a n d l e f t t h i s j o b d u e t o h i s s e r v i c e - c o n n e c t e d d i s a b i l i t i e s . A l t h o u g h i t a p p e a r s t h a t s o m e o f h i s r e c o r d s f r o m h i s e m p l o y m e n t h a v e b e e n a s s o c i a t e d w i t h t h e c l a i m s f i l e , t h e V e t e r a n s h o u l d b e a f f o r d e d a n o p p o r t u n i t y t o i d e n t i f y o r s u b m i t a d d i t i o n a l e m p l o y m e n t r e c o r d s o n r e m a n d . T h e V e t e r a n a l s o i n d i c a t e d t h a t h e h a s b e e n i n r e c e i p t o f d i s a b i l i t y b e n e f i t s f r o m S S A t h a t a r e b a s e d o n h i s m i g r a i n e s . T h e V e t e r a n s S S A r e c o r d s a r e n o t o f r e c o r d , a n d , a s V A h a s a d u t y t o o b t a i n r e l e v a n t S S A r e c o r d s , a n a t t e m p t s h o u l d b e m a d e t o o b t a i n t h e S S A r e c o r d s .
W i t h r e g a r d t o t h e c l a i m f o r e n t i t l e m e n t t o T D I U , s u c h c l a i m i s i n e x t r i c a b l y i n t e r t w i n e d w i t h t h e i s s u e s o f s e r v i c e c o n n e c t i o n a n d i n c r e a s e d r a t i n g b e i n g r e m a n d e d a n d t h e d i s p o s i t i o n o f t h e T D I U c l a i m m u s t b e d e f e r r e d . S e e H a r r i s , 1 V e t . A p p . a t 1 8 3 .
T h e m a t t e r s a r e R E M A N D E D f o r t h e f o l l o w i n g a c t i o n s :
1 . O b t a i n a n y p e r t i n e n t t r e a t m e n t r e c o r d s f r o m t h e D e p a r t m e n t o f N a v y ( c i v i l i a n e m p l o y m e n t ) .
2 . D e v e l o p t h e c l a i m f o r T D I U , t o i n c l u d e o b t a i n i n g a l l i d e n t i f i e d e m p l o y m e n t r e c o r d s .
3 . O b t a i n a l l p e r t i n e n t V A t r e a t m e n t r e c o r d s n o t a l r e a d y o n f i l e f o r i n c l u s i o n i n t h e c l a i m s f o l d e r .
4 . O b t a i n t h e S S A r e c o r d s p e r t i n e n t t o t h e V e t e r a n s c l a i m s f o r d i s a b i l i t y b e n e f i t s , i n c l u d i n g a c o p y o f a n y d e c i s i o n a n d c o p i e s o f t h e m e d i c a l r e c o r d s r e l i e d u p o n c o n c e r n i n g t h a t c l a i m .
5 . A f t e r a n y a d d i t i o n a l r e c o r d s a r e a s s o c i a t e d w i t h t h e c l a i m s f i l e , s c h e d u l e t h e V e t e r a n f o r a p p r o p r i a t e V A e x a m i n a t i o n r e g a r d i n g t h e s e v e r i t y o f t h e t h o r a c o l u m b a r s p i n e . T h e i m p a c t o n h i s e m p l o y m e n t s h o u l d b e n o t e d .
I n a d d i t i o n t o u t i l i z i n g t h e r e l e v a n t D B Q , t h e e x a m i n e r m u s t t e s t t h e r a n g e o f m o t i o n o f t h e l u m b a r s p i n e i n a c t i v e m o t i o n , p a s s i v e m o t i o n , w e i g h t - b e a r i n g , a n d n o n w e i g h t - b e a r i n g . I f t h e e x a m i n e r i s u n a b l e t o c o n d u c t t h e r e q u i r e d t e s t i n g o r c o n c l u d e s t h a t t h e r e q u i r e d t e s t i n g i s n o t n e c e s s a r y i n t h i s c a s e , h e o r s h e s h o u l d c l e a r l y e x p l a i n w h y t h a t i s s o .
T h e e x a m i n e r m u s t a l s o p r o v i d e a n o p i n i o n r e g a r d i n g a d d i t i o n a l f u n c t i o n a l l o s s d u r i n g a f l a r e - u p , o r p r o v i d e a s u p p o r t i n g e x p l a n a t i o n a b o u t w h y s u c h a n o p i n i o n c a n n o t b e p r o v i d e d , w h i c h i s n o t b a s e d o n t h e a b s e n c e o f p r o c u r a b l e i n f o r m a t i o n o r o n a p a r t i c u l a r e x a m i n e r s s h o r t c o m i n g s o r g e n e r a l a v e r s i o n t o o f f e r i n g a n o p i n i o n o n i s s u e s n o t d i r e c t l y o b s e r v e d . T h e e x a m i n e r m u s t e l i c i t f r o m t h e V e t e r a n r e l e v a n t i n f o r m a t i o n a s t o a n y f l a r e - u p s o r a s k h i m t o d e s c r i b e t h e a d d i t i o n a l f u n c t i o n a l l o s s , i f a n y , h e s u f f e r e d d u r i n g f l a r e s a n d t h e n e s t i m a t e t h e V e t e r a n s f u n c t i o n a l l o s s d u e t o f l a r e s b a s e d o n a l l t h e e v i d e n c e o f r e c o r d - i n c l u d i n g t h e V e t e r a n s l a y i n f o r m a t i o n - o r e x p l a i n w h y s h e o r h e c o u l d n o t d o s o .
6 . A f t e r a n y a d d i t i o n a l r e c o r d s a r e a s s o c i a t e d w i t h t h e c l a i m s f i l e , s c h e d u l e t h e V e t e r a n f o r a p p r o p r i a t e V A e x a m i n a t i o n r e g a r d i n g t h e s e v e r i t y o f t h e l e f t k n e e . T h e i m p a c t o n h i s e m p l o y m e n t s h o u l d b e n o t e d .
I n a d d i t i o n t o u t i l i z i n g t h e r e l e v a n t D B Q , t h e e x a m i n e r m u s t t e s t t h e r a n g e o f m o t i o n o f t h e l e f t k n e e i n a c t i v e m o t i o n , p a s s i v e m o t i o n , w e i g h t - b e a r i n g , a n d n o n w e i g h t - b e a r i n g . I f t h e e x a m i n e r i s u n a b l e t o c o n d u c t t h e r e q u i r e d t e s t i n g o r c o n c l u d e s t h a t t h e r e q u i r e d t e s t i n g i s n o t n e c e s s a r y i n t h i s c a s e , h e o r s h e s h o u l d c l e a r l y e x p l a i n w h y t h a t i s s o .
T h e e x a m i n e r m u s t a l s o p r o v i d e a n o p i n i o n r e g a r d i n g a d d i t i o n a l f u n c t i o n a l l o s s d u r i n g a f l a r e - u p , o r p r o v i d e a s u p p o r t i n g e x p l a n a t i o n a b o u t w h y s u c h a n o p i n i o n c a n n o t b e p r o v i d e d , w h i c h i s n o t b a s e d o n t h e a b s e n c e o f p r o c u r a b l e i n f o r m a t i o n o r o n a p a r t i c u l a r e x a m i n e r s s h o r t c o m i n g s o r g e n e r a l a v e r s i o n t o o f f e r i n g a n o p i n i o n o n i s s u e s n o t d i r e c t l y o b s e r v e d . T h e e x a m i n e r m u s t e l i c i t f r o m t h e V e t e r a n r e l e v a n t i n f o r m a t i o n a s t o a n y f l a r e - u p s o r a s k h i m t o d e s c r i b e t h e a d d i t i o n a l f u n c t i o n a l l o s s , i f a n y , h e s u f f e r e d d u r i n g f l a r e s a n d t h e n e s t i m a t e t h e V e t e r a n s f u n c t i o n a l l o s s d u e t o f l a r e s b a s e d o n a l l t h e e v i d e n c e o f r e c o r d - i n c l u d i n g t h e V e t e r a n s l a y i n f o r m a t i o n - o r e x p l a i n w h y s h e o r h e c o u l d n o t d o s o .
7 . A f t e r a n y a d d i t i o n a l r e c o r d s a r e a s s o c i a t e d w i t h t h e c l a i m s f i l e , p r o v i d e t h e V e t e r a n w i t h a n a p p r o p r i a t e e x a m i n a t i o n t o d e t e r m i n e t h e s e v e r i t y o f t h e s e r v i c e - c o n n e c t e d m i g r a i n e h e a d a c h e s . T h e e n t i r e c l a i m s f i l e s h o u l d b e m a d e a v a i l a b l e t o a n d b e r e v i e w e d b y t h e e x a m i n e r . A n y i n d i c a t e d t e s t s a n d s t u d i e s m u s t b e a c c o m p l i s h e d a n d a l l c l i n i c a l f i n d i n g s m u s t b e r e p o r t e d i n d e t a i l a n d c o r r e l a t e d t o a s p e c i f i c d i a g n o s i s . A n e x p l a n a t i o n f o r a l l o p i n i o n s e x p r e s s e d m u s t b e p r o v i d e d .
T h e e x a m i n e r s h o u l d r e p o r t a l l s i g n s a n d s y m p t o m s n e c e s s a r y f o r r a t i n g t h e V e t e r a n s s e r v i c e - c o n n e c t e d m i g r a i n e s u n d e r t h e r a t i n g c r i t e r i a . T h i s V A e x a m i n a t i o n s h o u l d f u r t h e r i n c l u d e a s t a t e m e n t o f t h e e f f e c t o f t h e V e t e r a n s m i g r a i n e s o n h i s o c c u p a t i o n a l f u n c t i o n i n g a n d d a i l y a c t i v i t i e s .
8 . A f t e r a n y a d d i t i o n a l r e c o r d s a r e a s s o c i a t e d w i t h t h e c l a i m s f i l e , s c h e d u l e t h e V e t e r a n f o r a V A e x a m i n a t i o n t o d e t e r m i n e t h e e t i o l o g y o f a n y c u r r e n t l y d i a g n o s e d r i g h t k n e e d i s a b i l i t y . T h e c l a i m s f o l d e r m u s t b e r e v i e w e d i n c o n j u n c t i o n w i t h t h e e x a m i n a t i o n . A l l t e s t i n g d e e m e d n e c e s s a r y m u s t b e c o n d u c t e d a n d r e s u l t s r e p o r t e d i n d e t a i l . A s u p p o r t i n g e x p l a n a t i o n m u s t b e p r o v i d e d f o r a l l o p i n i o n s r e n d e r e d .
B a s e d o n t h e r e v i e w a n d t h e e x a m i n a t i o n , t h e e x a m i n e r m u s t r e n d e r a n o p i n i o n a s t o w h e t h e r i t i s a t l e a s t a s l i k e l y a s n o t ( i . e . p r o b a b i l i t y o f 5 0 p e r c e n t o r g r e a t e r ) t h a t e a c h c u r r e n t l y d i a g n o s e d r i g h t k n e e d i s a b i l i t y i s r e l a t e d t o h i s a c t i v e s e r v i c e .
I s i t a t l e a s t a s l i k e l y a s n o t ( 5 0 p e r c e n t o r g r e a t e r p r o b a b i l i t y ) t h a t a n y d i a g n o s e d r i g h t k n e e d i s a b i l i t y w a s ( i ) c a u s e d o r ( i i ) a g g r a v a t e d b y t h e V e t e r a n s s e r v i c e - c o n n e c t e d l e f t k n e e d i s a b i l i t y ?
9 . A f t e r c o m p l e t i n g t h e a b o v e a c t i o n s a n d a n y o t h e r d e v e l o p m e n t a s m a y b e i n d i c a t e d b y a n y r e s p o n s e r e c e i v e d a s a c o n s e q u e n c e o f t h e a c t i o n s t a k e n i n t h e p a r a g r a p h s a b o v e , t h e c l a i m s m u s t b e r e a d j u d i c a t e d . I f t h e c l a i m s r e m a i n d e n i e d , a s u p p l e m e n t a l s t a t e m e n t o f t h e c a s e m u s t b e p r o v i d e d t o t h e V e t e r a n a n d h i s a t t o r n e y . A f t e r t h e V e t e r a n a n d h i s a t t o r n e y h a v e h a d a n a d e q u a t e o p p o r t u n i t y t o r e s p o n d , t h e a p p e a l m u s t b e r e t u r n e d t o t h e B o a r d f o r a p p e l l a t e r e v i e w .
S . H E N E K S
V e t e r a n s L a w J u d g e
B o a r d o f V e t e r a n s A p p e a l s
A T T O R N E Y F O R T H E B O A R D K a m a l , N a d i a
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]
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|
VAN BRUNT, P. J. Although I adhere to the opinion which I have expressed upon the previous appeals in this case (22 N. Y. Supp. 3; 27 N. Y. Supp. 767), that the evidence failed to disclose any negligence upon the part of the defendant justifying a recovery in this action, my associates having differed from me upon this question, this judgment must die affirmed. There does not seem to be any such ■difference in the presentation of the question of .•negligence upon this appeal as would call for a different ruling from that which obtained upon the previous appeals. The judgment and order appealed from must therefore be affirmed, with costs. | 01-10-2022 | [
"VAN BRUNT, P. J. Although I adhere to the opinion which I have expressed upon the previous appeals in this case (22 N. Y. Supp. 3; 27 N. Y. Supp. 767), that the evidence failed to disclose any negligence upon the part of the defendant justifying a recovery in this action, my associates having differed from me upon this question, this judgment must die affirmed. There does not seem to be any such ■difference in the presentation of the question of .•negligence upon this appeal as would call for a different ruling from that which obtained upon the previous appeals. The judgment and order appealed from must therefore be affirmed, with costs."
]
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IN THE COURT OF APPEALS OF IOWA
No. 20-0051 Filed September 22, 2021
MILTON WEIR, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Michael Jacobsen,
Judge.
A prisoner appeals the summary dismissal of his second application for
postconviction relief. AFFIRMED.
Peter M. Sand, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Tabor and Ahlers, JJ. 2
TABOR, Judge.
In 1986, a jury convicted Milton Weir of three counts of murder in the first
degree and one count of robbery in the first degree in connection with the shooting
deaths of Kenny Easter, LoRae McCuddin, and her six-year-old son Dustin. In his
direct appeal, Weir unsuccessfully challenged the probable cause for executing a
search warrant. See State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987) (noting that
the search discovered “substantial evidence linking Weir to the crime” including a
partially dismantled revolver later identified as the murder weapon). Less than
three years later, Weir filed his first application for postconviction relief (PCR),
advancing many claims of ineffective assistance of counsel. The PCR court found
his trial and appellate counsel performed competently. Our court affirmed the
denial of relief in June 1993.
More than two decades passed before Weir filed this second PCR
application. The district court dismissed it as untimely. The court recognized a
second PCR may relate back to the filing of the first PCR under certain conditions.
See Allison v. State, 914 N.W.2d 866, 890 (Iowa 2018). But the court found Weir
failed to meet the condition in Allison that the successive PCR be “filed promptly
after conclusion of the first PCR action.” See id. at 892. Weir appeals that
dismissal.
Before turning to the issues briefed by Weir’s appellate counsel, we address
his pro se motions. The supreme court issued orders in April 2020 and February
2021 directing that Weir’s request for permission to file pro se supplemental briefs
and other documents be submitted with the appeal. Following Hrbek v. State, 958
N.W.2d 779, 789 (Iowa 2021), we decline to consider Weir’s pro se filings. See 3
Iowa Code § 822.3A(1) (2020). Weir filed another pro se motion on August 12,
seeking to disqualify appellate counsel. Because Weir failed to show good cause,
we issued an order denying that motion on August 18. On August 24 and
September 2, he filed two more pro se motions asking for the same relief. We now
deny those motions too.
We return to the appeal issues. Weir raises three issues. First, he claims
the court erred in finding his application was barred by the three-year statute of
limitations in Iowa Code section 822.3 (2014). Second, he contends the court
should have appointed an expert to review the ballistics evidence from his criminal
case before dismissing his PCR application. And third, he alleges the court
“ignor[ed] manifest errors in the underlying criminal trial.” On our review, we adopt
the district court’s rationale on the issues presented. We find Weir’s application
was untimely and warranted summary dismissal. A full opinion would not augment
or clarify existing case law. So we affirm without further opinion under Iowa Court
Rule 21.26(1)(d) and (e).
AFFIRMED. | 09-22-2021 | [
"IN THE COURT OF APPEALS OF IOWA No. 20-0051 Filed September 22, 2021 MILTON WEIR, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Warren County, Michael Jacobsen, Judge. A prisoner appeals the summary dismissal of his second application for postconviction relief. AFFIRMED. Peter M. Sand, Des Moines, for appellant. Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State. Considered by Bower, C.J., and Tabor and Ahlers, JJ.",
"2 TABOR, Judge. In 1986, a jury convicted Milton Weir of three counts of murder in the first degree and one count of robbery in the first degree in connection with the shooting deaths of Kenny Easter, LoRae McCuddin, and her six-year-old son Dustin. In his direct appeal, Weir unsuccessfully challenged the probable cause for executing a search warrant. See State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987) (noting that the search discovered “substantial evidence linking Weir to the crime” including a partially dismantled revolver later identified as the murder weapon). Less than three years later, Weir filed his first application for postconviction relief (PCR), advancing many claims of ineffective assistance of counsel. The PCR court found his trial and appellate counsel performed competently. Our court affirmed the denial of relief in June 1993. More than two decades passed before Weir filed this second PCR application. The district court dismissed it as untimely.",
"The court recognized a second PCR may relate back to the filing of the first PCR under certain conditions. See Allison v. State, 914 N.W.2d 866, 890 (Iowa 2018). But the court found Weir failed to meet the condition in Allison that the successive PCR be “filed promptly after conclusion of the first PCR action.” See id. at 892. Weir appeals that dismissal. Before turning to the issues briefed by Weir’s appellate counsel, we address his pro se motions. The supreme court issued orders in April 2020 and February 2021 directing that Weir’s request for permission to file pro se supplemental briefs and other documents be submitted with the appeal. Following Hrbek v. State, 958 N.W.2d 779, 789 (Iowa 2021), we decline to consider Weir’s pro se filings. See 3 Iowa Code § 822.3A(1) (2020). Weir filed another pro se motion on August 12, seeking to disqualify appellate counsel. Because Weir failed to show good cause, we issued an order denying that motion on August 18. On August 24 and September 2, he filed two more pro se motions asking for the same relief. We now deny those motions too.",
"We return to the appeal issues. Weir raises three issues. First, he claims the court erred in finding his application was barred by the three-year statute of limitations in Iowa Code section 822.3 (2014). Second, he contends the court should have appointed an expert to review the ballistics evidence from his criminal case before dismissing his PCR application. And third, he alleges the court “ignor[ed] manifest errors in the underlying criminal trial.” On our review, we adopt the district court’s rationale on the issues presented. We find Weir’s application was untimely and warranted summary dismissal. A full opinion would not augment or clarify existing case law. So we affirm without further opinion under Iowa Court Rule 21.26(1)(d) and (e). AFFIRMED."
]
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23 So. 3d 625 (2009) Sheila HENDERSON, as personal representative of the estate of Tony R. Henderson, deceased v. MEADWESTVACO CORPORATION and CSX Transportation, Inc. CSX Transportation, Inc. v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased MeadWestvaco Corporation v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased. 1070522 and 1070497 and 1070509. Supreme Court of Alabama. March 20, 2009. Rehearing Denied in No. 1070522 May 15, 2009. *626 John E. Guerry III of Motley Rice LLC, Mt. Pleasant, South Carolina; and Charles E. Robinson, Jr., of The Robinson Law Firm, PC, Ashville, for appellant/cross-appellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased. Randall A. Jordan of The Jordan Firm, St. Simons Island, Georgia; and Todd M. Higey of RicharsonClement PC, Birmingham, for appellee-cross/appellant CSX Transportation, Inc. H. Thomas Wells, Jr., John A. Smyth III, and E. Bryan Nichols of Maynard, Cooper & Gale, P.C., Birmingham, for appellee/cross-appellant MeadWestvaco Corporation. Michael D. Freeman, R. Bruce Barze, Jr., and Spencer M. Taylor of Balch & Bingham LLP, Birmingham, for amicus curiae Business Council of Alabama, in support of the appellees/cross-appellants MeadWestvaco Corporation and CSX Transportation, Inc. Crawford S. McGivaren, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP, Birmingham, for amicus curiae Association of American Railroads, in support of the appellee/cross-appellant CSX Transportation, Inc. David G. Wirtes, Jr., of Cunningham Bounds LLC, Mobile, for amicus curiae Alabama Association for Justice, in support of the appellant/cross-appellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased. LYONS, Justice. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased, appeals from a summary judgment in favor of CSX Transportation, Inc. ("CSX"), and MeadWestvaco Corporation ("MeadWestvaco") on her claim seeking damages for the alleged wrongful death of her husband, Tony R. Henderson. CSX and MeadWestvaco both filed cross-appeals.[1] We affirm the summary judgment, *627 albeit on a rationale different from that relied upon by the trial court.
I. Facts and Procedural History
Tony R. Henderson was diagnosed with mesothelioma in 2004. Mesothelioma is a cancer of the lining of the lungs and of the heart; it is caused, almost exclusively, by the inhalation of asbestos fibers. The evidence shows that Henderson was exposed to asbestos as a teenager when he worked for the Cement Asbestos Products Company ("CAPCO"). CAPCO manufactured pipe from cement, silica, and asbestos at a plant in St. Clair County near Henderson's family home. CAPCO closed the plant in 1984. Henderson worked for CAPCO part-time during high school in the late 1960s preparing pallets for reuse. He also worked for CAPCO full-time during the summers of 1971 and 1972 while he was in college. Henderson's primary duty in 1971 and 1972 was to unload from railroad cars operated by Seaboard Coastline, a predecessor of CSX, packages of raw asbestos fibers that were delivered to the plant. Henderson was directly exposed to asbestos when he unloaded the railcars. Henderson testified during his deposition that he was never provided, and he never wore, any mask or other respiratory protection when he worked for CAPCO. Henderson testified that he was never warned of the dangers of exposure to asbestos. It is undisputed that Henderson first developed symptoms of mesothelioma, a cough and fluid on his lungs, in September 200432 years after his last exposure to asbestos at CAPCO. Henderson was diagnosed with mesothelioma in mid-October, 2004. He died as a result of the disease on February 1, 2006. In March 2005, Tony Henderson and his wife Sheila filed a personal-injury action against CSX, Bill Vann Company, Inc.,[2] and several other entities in the State Court of Fulton County, Georgia ("the Georgia action"), seeking damages for injury resulting from exposure to asbestos. Tony Henderson died while the Georgia action was pending. Sheila Henderson, in her capacity as personal representative of Tony's estate, voluntarily dismissed the Georgia action on June 16, 2006. On the same day she dismissed the Georgia action, Sheila Henderson, in her capacity as personal representative of Tony's estate, filed an independent action in the St. Clair Circuit Court against CSX, Bill Vann Company, Inc., MeadWestvaco, and several fictitiously named defendants.[3] Pursuant to § 6-5-410, Ala.Code 1975, Sheila Henderson's complaint stated a single count seeking recovery for Tony Henderson's alleged wrongful death. No parties were ever substituted for the fictitiously named defendants. Henderson contends that CSX is responsible for her husband's death because, she says, it failed to warn him of the dangers of the asbestos it delivered to CAPCO and because, she says, it failed to train him in how to safely unload asbestos from the railcars.[4] Regarding MeadWestvaco, *628 Henderson contends that the company's predecessor, the Mead Corporation and/or its predecessor, the Woodward Corporation, owned CAPCO during the time of her husband's employment there and that it voluntarily assumed a duty to inspect the CAPCO plant and to ensure compliance with safety standards.[5] MeadWestvaco removed the action to the United States District Court for the Northern District of Alabama in July 2006, and the case was remanded to the St. Clair Circuit Court in August 2006. After remand, CSX and MeadWestvaco each moved for a summary judgment on several grounds, including the statute of limitations of § 6-5-410 and the rule of repose. CSX also argued that it did not owe a duty to Tony Henderson, and MeadWestvaco argued that its predecessors were merely shareholders of CAPCO and that, therefore, it is not subject to liability for Tony Henderson's alleged wrongful death. On July 3, 2007, the trial court denied the motions as to the statute of limitations, CSX's duty, and MeadWestvaco's relationship with CAPCO. The trial court, however, entered a summary judgment in favor of CSX and MeadWestvaco, finding that the rule of repose barred Henderson's claim. After her postjudgment motion was denied and the trial court had entered a summary judgment as to the last remaining defendant, Bill Vann Company, Inc., Henderson filed a timely appeal to this Court.[6]
II. Standard of Review
"`The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala.1992). "`A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).'
*629 "Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004)." Alabama Elec. Coop. v. Bailey's Constr. Co., 950 So. 2d 280, 283 (Ala.2006).
III. Analysis
"A wrongful death action is purely statutory; no such action existed at common law." Waters v. Hipp, 600 So. 2d 981, 982 (Ala.1992). Alabama's wrongful-death statute, § 6-5-410(a), Ala.Code 1975, states: "A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death." "Title 7, § 123 [Ala.Code 1940, the predecessor to § 6-5-410(a), Ala.Code 1975,] creates a distinct cause of action which comes into being only upon death from wrongful act." Ivey v. Wiggins, 276 Ala. 106, 108, 159 So. 2d 618, 619 (1964). That action arises in favor of the decedent's personal representative, in this case, Sheila Henderson. Id. However, the action is not unlimited. Among other things, "[t]he plain language of the wrongful death statute states that the personal representative may commence a wrongful death action, `provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.'" Curtis v. Quality Floors, Inc., 653 So. 2d 963, 964 (Ala.1995) (emphasis added). Applying this proviso to the circumstances of this case, we conclude that Sheila Henderson's claim is barred by her inability to satisfy the requirement of the proviso that "the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death," and the trial court's summary judgment for CSX and Mead-Westvaco should be affirmed on that basis. The proviso of § 6-5-410(a) requires consideration of whether the decedent, had he or she lived, would have been able to file a personal-injury action for the injuries that caused his or her death. "Our cases hold that if a decedent's cause of action is time-barred at his or her death, then the decedent's personal representative cannot bring a wrongful death action." Curtis, 653 So.2d at 964 (emphasis added) (citing Northington v. Carey-Canada, Inc., 432 So. 2d 1231 (Ala.1983) (affirming a summary judgment based on Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala.1981); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979); and Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So. 2d 699 (1959))). However, the proviso is silent as to whether another, and if so what, state's statute of limitation applies to the determination of whether the decedent's personal-injury action would have been time-barred at the date of the decedent's death, had the decedent not died on that date. Sheila Henderson commenced her action in the St. Clair Circuit Court on June 16, 2006, based on Tony Henderson's alleged wrongful death. On appeal, for good reason, she does not contend that Tony Henderson could have commenced a personal-injury action under Alabama's statute of limitations. In Tyson v. Johns-Manville Sales Corp., supra, this Court explained:
*630 "Until May 18, 1980, § 6-2-30 of the Alabama Code of 1975, and Garrett v. Raytheon, 368 So. 2d 516 (Ala.1979), dictated the limitations period and date of accrual of causes of actions for injury due to radiation and other insidious agents. "Under §§ 6-2-30 and 6-2-39 of the Alabama Code of 1975 [as they existed at that time], all actions for injury to the person not arising from contract must be commenced within one year after the cause of action has accrued. In Garrett v. Raytheon, supra, the Court held that a cause of action for radiation injury accrued and `the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered.' 368 So.2d at 521. Asbestos injury, like radiation injury, results from a latent, insidious agent and, prior to the passage of Act No. 80-566 [an amendment to § 6-2-30 that applied a discovery rule to the accrual of causes of action arising from exposure to asbestos] and Act No. 79-468, Alabama Acts of 1979 [adding § 6-5-500 et seq., Ala.Code 1975], following Raytheon, a claim based on asbestos injury would have accrued on the last date of plaintiff's exposure to defendant's product." 399 So.2d at 268 (footnote omitted). In Tyson, this Court held that "if, before the effective date of Act No. 80-566, [May 19, 1980,] one year had elapsed between the date of plaintiff's exposure and the date on which plaintiff's action was commenced, then that claim is nevertheless barred by the statute of limitations." 399 So.2d at 267. In determining whether the discovery statute applied retroactively, this Court concluded: "Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because § 95 of the [Alabama] Constitution restricts the legislative power to do so." 399 So.2d at 270. As explained in Tyson, based on the law as it then existed, Tony Henderson's claim of personal injury resulting from exposure to asbestos would have accrued in 1972, on the date of his last exposure to asbestos at CAPCO. Based on the one-year statute of limitations applicable to personal injury claims at the time of the accrual of Tony Henderson's claim, his claim was time-barred in 1973. Accordingly, at the time of his death, Tony Henderson could not, under Alabama law, "have commenced an action for such wrongful act, omission, or negligence if it had not caused death." § 6-5-410(a). To support her argument that, in applying the proviso of § 6-5-410(a), this Court disregard Alabama's conflicts-of-law rule that the procedural law of the forum must be applied, Sheila Henderson relies on this Court's decisions in Pace v. Armstrong World Industries, Inc., 578 So. 2d 281 (Ala.1991), and Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979). In Pace, this Court answered a certified question from the United States District Court for the Southern District of Alabama. That court presented the following facts. Joseph Pace was allegedly last exposed to asbestos at his place of employment in 1966. He was diagnosed with chronic obstructive lung disease in 1985 and in 1986 sued in the United States District Court for the Northern District of Texas to recover for his injuries. The action was transferred to the United States District Court for the Southern District of Alabama ("the Southern District") pursuant to 28 U.S.C. § 1404(a). Alabama substantive *631 law applied to Pace's personal-injury claim. 578 So.2d at 282. However, pursuant to the United States Supreme Court's decisions in Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964), and Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), "`the Texas statute of limitations governed Pace's personal injury claim, as a matter of procedural law, and... the claim was timely filed.'" 578 So.2d at 282 (quoting certificate filed by the Southern District). Accordingly, the action was governed by Texas procedural law and Alabama substantive law. Pace died in 1988 while his personal-injury claim was pending before the Southern District. His personal representative, Henry Pace, filed an amended complaint in the action, seeking to recover for Pace's alleged wrongful death. Henry Pace did not file an independent action. The defendants moved to dismiss the amended complaint on the ground that it was time-barred by Alabama's wrongful-death statute. In response to the motion to dismiss, Henry Pace contended that Alabama's wrongful-death statute did not "`require the underlying personal injury action to be available in Alabama'" and did not "`require that the [decedent] must have been able to commence such an action in Alabama.'" 578 So.2d at 282-83 (quoting certificate filed by the Southern District). Henry Pace also contended that a decedent's "`personal representative may convert [an existing, timely, personal-injury action in a foreign court] to a wrongful death action.'" 578 So.2d at 283 (emphasis added). This Court consented to answer the following question presented by the Southern District: "`Whether the inability of the decedent to [commence] a personal injury action in the State of Alabama prior to the time of death precludes amendment of his existing personal injury action by the decedent's representative so as to bring an action for wrongful death under Ala.Code 1975, § 6-5-410?'" 578 So.2d at 283. Accordingly, this Court consented to address the issue raised by Henry Pace's second contention. After discussing the history of the wrongful-death statute and the applicable rules of statutory construction, this Court stated: "We find the extent of the restrictive scope of the proviso to be in doubt. The facts of this casethe application of the substantive law of Alabama and the procedural law of Texasfrom all appearances, was not in the mind of the legislature at the time of the enactment of the statute. Section 6-5-410 does not address the eventuality that underlying personal injury actions would be commenced outside the State of Alabama. Indeed, the defendants' historical analysis of § 6-5-410 supports this statement. Because we find the restrictive scope of the proviso to be in doubt, we must strictly construe its restrictive scope. Sutherland [Statutory Construction § 47.08 (4th ed.)]. We must also adhere to the rule on omitted words, which compels this Court to proceed with caution in supplying omitted words and to supply them only where the omission is palpable. 73 Am.Jur.2d [Statutes § 203 (1974)]. Applying a strict construction to the language of the proviso, we will restrict from the operation of § 6-5-410 only those actions that are expressly restricted; and, there can be no doubt that the proviso does not expressly preclude a personal representative from commencing an action in Alabama where the decedent had timely commenced a personal injury action for the same wrongful act or omission that caused the *632 decedent's death. We also find that the legislature's omission of words that would mandate that the decedent must have been able to commence a personal injury action in Alabama is not palpable, and we conclude, therefore, that this Court should not, by construction, insert into the statute words that would have that effect." 578 So.2d at 285. Based on this reasoning, and in response to the certified question, this Court held: "[T]he decedent's inability to commence a personal injury action in Alabama had death not occurred does not preclude his personal representative from converting his existing personal injury action filed in Texas[, and subject to Texas procedural law,] into a wrongful death action under Ala.Code 1975, § 6-5-410." 578 So.2d at 286 (bracketed language and emphasis added). Henderson argues that this Court's decision in Pace stands for the proposition that any personal-injury action filed outside Alabama by the decedent before death satisfies the proviso of § 6-5-410 with respect to a personal representative's action in Alabama initially filed under the wrongful-death act. Were we to accept this argument, Alabama's conflicts-of-law rulei.e., that the procedural rules of the forum applywould not apply to the personal-injury action contemplated by the proviso in § 6-5-410, and the proviso would be satisfied so long as the decedent could have filed a personal-injury action in another forum at the time of his death. Under the construction of Pace and the proviso suggested by Henderson, the proviso would have a limited field of operation. Cf. Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197, 200-01 (Ala.2001). We cannot agree with an application of § 6-5-410 that would so limit the proviso and remove it from operation of our traditional conflicts-of-law rules. Just as this Court concluded in Pace that the legislature did not anticipate a scenario triggered by the peculiarities of the interplay between state and federal law by reason of 28 U.S.C. § 1404(a), see Pace, supra, so we conclude that it was equally beyond the legislature's contemplation that a personal representative, commencing an action in Alabama based on alleged wrongful death, could avoid Alabama's conflicts-of-law rules and apply more favorable procedural rules of some other jurisdiction to meet the requirements of the proviso. Indeed, this view is reenforced by recognition of the legislature's attempt to restrict the availability of § 6-5-410 to "a court of competent jurisdiction within the State of Alabama, and not elsewhere."[7] (Emphasis added.) Accordingly, we confine our reading of Pace to the facts presented, specifically, to those circumstances in which the substantive law of Alabama and the procedural law of another state apply and under which procedural rules the decedent's personal-injury claim is viable. This reading is consistent with Riddle v. Shell Oil Co., 764 F. Supp. 418 (W.D.Va.1990),[8] which this Court cited *633 to support its conclusion in Pace. We decline to extend the holding in Pacethat this Court could not interlineate the phrase "in Alabama" so as to require that the decedent must have been able to commence a personal-injury action in Alabamabeyond the context of the setting there presented, i.e., where the forum was obliged to apply the statute of limitations of another jurisdiction under governing principles of conflicts of laws. Henderson also relies on this Court's decision in Textron, Inc. v. Whitfield, supra. In that case, Hubert Whitfield filed a personal-injury claim in the Jefferson Circuit Court under the Alabama Uniform Commercial Code. Whitfield subsequently filed an action in the United States District Court of Vermont stating the same cause of action. The defendant in the Alabama action moved to dismiss Whitfield's claim on the ground that it was barred by the applicable statute of limitations. The trial court granted that motion, but it did not specify whether the dismissal was with or without prejudice. The defendant in the Vermont action then moved for a summary judgment on the ground that Whitfield's claim was barred by the doctrine of res judicata. While that motion was pending, Whitfield filed what this Court characterized as a motion under Rule 60(b), Ala. R. Civ. P., asking the Alabama court to amend its judgment to state that the dismissal was "without prejudice." The Alabama trial court granted Whitfield's motion, and the defendant appealed. This Court ruled that the Alabama trial court did not exceed its discretion in granting Whitfield's Rule 60(b) motion. This Court then addressed the res judicata question that was at issue before the Vermont court, noting that the disposition of the Alabama action based on the statute of limitations was procedural and therefore did not have a preclusive effect on the Vermont action. This Court stated: "We are of the opinion that if the plaintiff can present his claim elsewhere, in a jurisdiction which has a longer or different statute of limitations, and prevail on the merits of his claim, he should have that opportunity." 380 So.2d at 260. Henderson argues that this statement in Textron was an invitation by this Court for plaintiffs to file personal-injury actions in jurisdictions with more favorable statutes of limitation, and, thus, she argued, the Georgia action satisfies the proviso of § 6-5-410. As an initial matter, we note that Textron involved a personal-injury action, not a wrongful-death action; it did not implicate the proviso of § 6-5-410. Furthermore, this Court made clear in Textron that the conflicts-of-law rules of the forum would apply to any action filed in a sister jurisdiction, so that the procedural rules of that jurisdiction would determine whether the plaintiff's personal-injury action was viable. Textron condoned nothing more than the right to pursue in another jurisdiction a claim that would be viable under the statute of limitations applicable in that jurisdiction under such jurisdiction's conflicts-of-law rule. Consistent with Textron, the Georgia conflicts-of-law rules and thus the procedural rules of Georgia applied to determine the timeliness of the Hendersons' previously filed personal-injury action in Georgia. However, Henderson voluntarily dismissed that action. She did not choose to amend it, as did the plaintiff in Pace, to assert a wrongful-death claim.[9] Instead, *634 she filed an independent action in Alabama. Accordingly, under the doctrine of lex fori, the law of this forum applies to the determination required by the proviso of § 6-5-410. The legislature could have specified the application of a rule other than the common-law rule of lex fori for determining the result of the inquiry called for by the proviso of § 6-5-410. Likewise, it could have specified a particular state's statute of limitations be considered in determining whether a decedent could have commenced an action. However, the legislature did neither. See Housing Auth. of Huntsville v. Hartford Accident & Indem. Co., 954 So. 2d 577, 582 (Ala.2006) ("The common-law doctrine allowing a surety to assert all defenses available to its principal was in existence when § 6-5-221 was enacted. The legislature could have expressly limited that doctrine if it desired to do so, but it chose not to."). As previously noted, the initial, albeit unsuccessful, legislative choice was to confine the remedy to Alabama courts. Faced with the legislature's silence on this issue, we apply traditional conflicts-of-law rules and the doctrine of lex fori to the inquiry required by the proviso, i.e., whether Tony Henderson could have commenced a personal-injury action based on mesothelioma had it not caused his death. In light of the legislature's failure to override our rules on conflicts of law and under the longstanding conflicts-of-law principle of lex fori, the law of Alabama supplies the procedural law, including the statute of limitations, to determine the outcome of the inquiry called for by the proviso as to whether Tony Henderson could have commenced a personal-injury action for the injuries that allegedly caused his death had he not died. As explained above, pursuant to the proviso and the conflicts-of-law rule under which it operates, any claim Tony Henderson could have brought was barred by the procedural laws of this State. See Tyson. Accordingly, Sheila Henderson has not satisfied the proviso of § 6-5-410, and CSX and MeadWestvaco have shown that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. Although the trial court rejected this defense, we can affirm its judgment on an alternative ground. See Steele v. Walser, 880 So. 2d 1123 (Ala.2003), noting the rule that an appellate court, based on an alternative argument asserted by the appellee, may affirm a judgment on an issue previously rejected by the trial court. Because we resolve this appeal on the basis of the statute of limitations applicable to determine compliance with the proviso of § 6-5-410, we need not address the issues the parties raise regarding the rule of repose[10] or any duty owed by CSX.
*635 IV. Conclusion
Based on the foregoing, we affirm the summary judgment for CSX and Mead-Westvaco. 1070522AFFIRMED. 1070497AFFIRMED. 1070509AFFIRMED. COBB, C.J., and WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur. MURDOCK, J., concurs in the result. MURDOCK, Justice (concurring in the result). I concur in the result reached by the main opinion. I conclude that there was no duty on the part of the predecessor of CSX to train or warn the decedent with respect to injury or harm allegedly associated with unloading materials from the predecessor's railcars. Nor has Henderson demonstrated that MeadWestvaco, through its corporate predecessor, bears legal responsibility for the alleged acts and omissions of the decedent's former employer. As to the issue of the statute of limitations, MeadWestvaco notes in its brief that in Griffin v. Unocal Corp., 990 So. 2d 291 (Ala.2008), this Court held that the "manifest, present injury" standard recognized in that case is to be accorded prospective operation only, except with respect to the Griffin case itself; Henderson does not argue in this appeal that we should revisit that holding. NOTES [1] Although CSX and MeadWestvaco prevailed below, they assert in their cross-appeals alternative bases for affirming the summary judgment. The cross-appeals are not necessary to achieve the review sought therein. See McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 25 (Ala.1986) (quoting with approval 9 J. Moore and B. Ward, Moore's Federal Practice ¶ 204.11[2] (2d ed.1985): "`[A]n appellee, though he files no cross-appeal or cross-petition, may offer in support of his judgment any argument that is supported by the record, whether it was ignored by the court below or flatly rejected.'"). [2] The Hendersons alleged that the predecessor to Bill Vann Company, Inc., Young & Vann Supply Company, sold products and equipment to CAPCO. [3] Except for CSX and Bill Vann Company, Inc., none of the defendants in the Georgia action was named in the action in the St. Clair Circuit Court. [4] The evidence showed that Seaboard Coastline, a predecessor of CSX, actually delivered the asbestos to CAPCO. However, the issue whether CSX is a proper party and may be held liable for the actions or omissions of its predecessor, Seaboard Coastline, has not been raised as an issue in this action, either before the trial court or on appeal. [5] The issue whether MeadWestvaco is a proper party and may be held liable for the actions or omissions of its predecessors has not been raised as an issue in this action, either before the trial court or on appeal. [6] There is some confusion regarding the date the trial court's July 3, 2007, order was made final. Ultimately, the order was certified as final under Rule 54(b), Ala. R. Civ. P., and Henderson was granted, pursuant to Rule 77(d), Ala. R. Civ. P., an additional 30 days to appeal from the date the order became final. Whether the time within which Henderson filed her notice of appeal is calculated from the date of the Rule 54(b) certification or, pursuant to Rule 77(d), from the trial court's entry of summary judgment as to the last defendant, it is apparent that her notice of appeal was timely. [7] We note that in Tennessee Coal, Iron & R.R. v. George, 233 U.S. 354, 34 S. Ct. 587, 58 L. Ed. 997 (1914), the United States Supreme Court held that, despite the restrictive language of § 6-5-410 requiring that the action be asserted in Alabama and "not elsewhere," wrongful-death actions under § 6-5-410 may be asserted in other jurisdictions so long as the jurisdictional and procedural requirements of that jurisdiction are satisfied. [8] In Riddle, pursuant to Van Dusen and Klaxon, supra, the United States District Court for the Western District of Virginia, in a situation similar to that in Pace, applied the conflicts-of-law principles of the transferor forum to the decedent's existing personal-injury claim. 764 F.Supp. at 421. Under those principles, the statute of limitations of the transferor forum applied to the personal-injury claim. Id. [9] We note that in Griffin v. Hunt Refining Co., 292 Ga.App. 451, 453, 664 S.E.2d 823, 826 (2008), the personal representative commenced a wrongful-death action and the Georgia appellate court concluded that Alabama's two-year statute of limitations for wrongful death, rather than the longer Georgia statute of limitations applicable to a personal-injury action, applied to the hypothetical personal-injury action described in the proviso as a matter of Alabama substantive law. Of course, it is axiomatic that the Georgia court's appreciation of the import of an act of the Alabama legislature is not binding precedent in this State. Moreover, for all that appears, the effect of Pace, with its recognition of the applicability of procedural rules to determine the timeliness of the action referred to in the proviso, was not argued, as the court in Griffin does not mention Pace. Of course, whether Georgia's rule of repose would have operated as a separate and independent basis to bar proceedings by Sheila Henderson in Georgia is an issue beyond the province of this discussion. [10] We note that Henderson asserts a violation of § 13 of the Alabama Constitution of 1901 in the context of the availability of a rule of repose under the facts of this case. No such argument is advanced with respect to the availability of the statute of limitations as a defense to Henderson's claim as was held in Tyson, nor does Henderson ask us to overrule Tyson. | 10-30-2013 | [
"23 So. 3d 625 (2009) Sheila HENDERSON, as personal representative of the estate of Tony R. Henderson, deceased v. MEADWESTVACO CORPORATION and CSX Transportation, Inc. CSX Transportation, Inc. v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased MeadWestvaco Corporation v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased. 1070522 and 1070497 and 1070509. Supreme Court of Alabama. March 20, 2009. Rehearing Denied in No. 1070522 May 15, 2009. *626 John E. Guerry III of Motley Rice LLC, Mt. Pleasant, South Carolina; and Charles E. Robinson, Jr., of The Robinson Law Firm, PC, Ashville, for appellant/cross-appellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased. Randall A. Jordan of The Jordan Firm, St. Simons Island, Georgia; and Todd M. Higey of RicharsonClement PC, Birmingham, for appellee-cross/appellant CSX Transportation, Inc. H. Thomas Wells, Jr., John A. Smyth III, and E. Bryan Nichols of Maynard, Cooper & Gale, P.C., Birmingham, for appellee/cross-appellant MeadWestvaco Corporation. Michael D. Freeman, R. Bruce Barze, Jr., and Spencer M. Taylor of Balch & Bingham LLP, Birmingham, for amicus curiae Business Council of Alabama, in support of the appellees/cross-appellants MeadWestvaco Corporation and CSX Transportation, Inc. Crawford S. McGivaren, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP, Birmingham, for amicus curiae Association of American Railroads, in support of the appellee/cross-appellant CSX Transportation, Inc. David G. Wirtes, Jr., of Cunningham Bounds LLC, Mobile, for amicus curiae Alabama Association for Justice, in support of the appellant/cross-appellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased.",
"LYONS, Justice. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased, appeals from a summary judgment in favor of CSX Transportation, Inc. (\"CSX\"), and MeadWestvaco Corporation (\"MeadWestvaco\") on her claim seeking damages for the alleged wrongful death of her husband, Tony R. Henderson. CSX and MeadWestvaco both filed cross-appeals. [1] We affirm the summary judgment, *627 albeit on a rationale different from that relied upon by the trial court. I. Facts and Procedural History Tony R. Henderson was diagnosed with mesothelioma in 2004. Mesothelioma is a cancer of the lining of the lungs and of the heart; it is caused, almost exclusively, by the inhalation of asbestos fibers.",
"The evidence shows that Henderson was exposed to asbestos as a teenager when he worked for the Cement Asbestos Products Company (\"CAPCO\"). CAPCO manufactured pipe from cement, silica, and asbestos at a plant in St. Clair County near Henderson's family home. CAPCO closed the plant in 1984. Henderson worked for CAPCO part-time during high school in the late 1960s preparing pallets for reuse. He also worked for CAPCO full-time during the summers of 1971 and 1972 while he was in college. Henderson's primary duty in 1971 and 1972 was to unload from railroad cars operated by Seaboard Coastline, a predecessor of CSX, packages of raw asbestos fibers that were delivered to the plant. Henderson was directly exposed to asbestos when he unloaded the railcars. Henderson testified during his deposition that he was never provided, and he never wore, any mask or other respiratory protection when he worked for CAPCO. Henderson testified that he was never warned of the dangers of exposure to asbestos.",
"It is undisputed that Henderson first developed symptoms of mesothelioma, a cough and fluid on his lungs, in September 200432 years after his last exposure to asbestos at CAPCO. Henderson was diagnosed with mesothelioma in mid-October, 2004. He died as a result of the disease on February 1, 2006. In March 2005, Tony Henderson and his wife Sheila filed a personal-injury action against CSX, Bill Vann Company, Inc.,[2] and several other entities in the State Court of Fulton County, Georgia (\"the Georgia action\"), seeking damages for injury resulting from exposure to asbestos. Tony Henderson died while the Georgia action was pending.",
"Sheila Henderson, in her capacity as personal representative of Tony's estate, voluntarily dismissed the Georgia action on June 16, 2006. On the same day she dismissed the Georgia action, Sheila Henderson, in her capacity as personal representative of Tony's estate, filed an independent action in the St. Clair Circuit Court against CSX, Bill Vann Company, Inc., MeadWestvaco, and several fictitiously named defendants. [3] Pursuant to § 6-5-410, Ala.Code 1975, Sheila Henderson's complaint stated a single count seeking recovery for Tony Henderson's alleged wrongful death. No parties were ever substituted for the fictitiously named defendants. Henderson contends that CSX is responsible for her husband's death because, she says, it failed to warn him of the dangers of the asbestos it delivered to CAPCO and because, she says, it failed to train him in how to safely unload asbestos from the railcars.",
"[4] Regarding MeadWestvaco, *628 Henderson contends that the company's predecessor, the Mead Corporation and/or its predecessor, the Woodward Corporation, owned CAPCO during the time of her husband's employment there and that it voluntarily assumed a duty to inspect the CAPCO plant and to ensure compliance with safety standards. [5] MeadWestvaco removed the action to the United States District Court for the Northern District of Alabama in July 2006, and the case was remanded to the St. Clair Circuit Court in August 2006. After remand, CSX and MeadWestvaco each moved for a summary judgment on several grounds, including the statute of limitations of § 6-5-410 and the rule of repose. CSX also argued that it did not owe a duty to Tony Henderson, and MeadWestvaco argued that its predecessors were merely shareholders of CAPCO and that, therefore, it is not subject to liability for Tony Henderson's alleged wrongful death.",
"On July 3, 2007, the trial court denied the motions as to the statute of limitations, CSX's duty, and MeadWestvaco's relationship with CAPCO. The trial court, however, entered a summary judgment in favor of CSX and MeadWestvaco, finding that the rule of repose barred Henderson's claim. After her postjudgment motion was denied and the trial court had entered a summary judgment as to the last remaining defendant, Bill Vann Company, Inc., Henderson filed a timely appeal to this Court. [6] II.",
"Standard of Review \"`The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala.1992). \"`A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present \"substantial evidence\" creating a genuine issue of material fact\"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.\" Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).' *629 \"Capital Alliance Ins.",
"Co. v. Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004).\" Alabama Elec. Coop. v. Bailey's Constr. Co., 950 So. 2d 280, 283 (Ala.2006). III. Analysis \"A wrongful death action is purely statutory; no such action existed at common law.\" Waters v. Hipp, 600 So. 2d 981, 982 (Ala.1992). Alabama's wrongful-death statute, § 6-5-410(a), Ala.Code 1975, states: \"A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.\" \"Title 7, § 123 [Ala.Code 1940, the predecessor to § 6-5-410(a), Ala.Code 1975,] creates a distinct cause of action which comes into being only upon death from wrongful act.\"",
"Ivey v. Wiggins, 276 Ala. 106, 108, 159 So. 2d 618, 619 (1964). That action arises in favor of the decedent's personal representative, in this case, Sheila Henderson. Id. However, the action is not unlimited. Among other things, \"[t]he plain language of the wrongful death statute states that the personal representative may commence a wrongful death action, `provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.'\"",
"Curtis v. Quality Floors, Inc., 653 So. 2d 963, 964 (Ala.1995) (emphasis added). Applying this proviso to the circumstances of this case, we conclude that Sheila Henderson's claim is barred by her inability to satisfy the requirement of the proviso that \"the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death,\" and the trial court's summary judgment for CSX and Mead-Westvaco should be affirmed on that basis. The proviso of § 6-5-410(a) requires consideration of whether the decedent, had he or she lived, would have been able to file a personal-injury action for the injuries that caused his or her death. \"Our cases hold that if a decedent's cause of action is time-barred at his or her death, then the decedent's personal representative cannot bring a wrongful death action.\"",
"Curtis, 653 So.2d at 964 (emphasis added) (citing Northington v. Carey-Canada, Inc., 432 So. 2d 1231 (Ala.1983) (affirming a summary judgment based on Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala.1981); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979); and Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So. 2d 699 (1959))). However, the proviso is silent as to whether another, and if so what, state's statute of limitation applies to the determination of whether the decedent's personal-injury action would have been time-barred at the date of the decedent's death, had the decedent not died on that date. Sheila Henderson commenced her action in the St. Clair Circuit Court on June 16, 2006, based on Tony Henderson's alleged wrongful death. On appeal, for good reason, she does not contend that Tony Henderson could have commenced a personal-injury action under Alabama's statute of limitations. In Tyson v. Johns-Manville Sales Corp., supra, this Court explained: *630 \"Until May 18, 1980, § 6-2-30 of the Alabama Code of 1975, and Garrett v. Raytheon, 368 So. 2d 516 (Ala.1979), dictated the limitations period and date of accrual of causes of actions for injury due to radiation and other insidious agents.",
"\"Under §§ 6-2-30 and 6-2-39 of the Alabama Code of 1975 [as they existed at that time], all actions for injury to the person not arising from contract must be commenced within one year after the cause of action has accrued. In Garrett v. Raytheon, supra, the Court held that a cause of action for radiation injury accrued and `the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered.' 368 So.2d at 521. Asbestos injury, like radiation injury, results from a latent, insidious agent and, prior to the passage of Act No. 80-566 [an amendment to § 6-2-30 that applied a discovery rule to the accrual of causes of action arising from exposure to asbestos] and Act No. 79-468, Alabama Acts of 1979 [adding § 6-5-500 et seq., Ala.Code 1975], following Raytheon, a claim based on asbestos injury would have accrued on the last date of plaintiff's exposure to defendant's product.\"",
"399 So.2d at 268 (footnote omitted). In Tyson, this Court held that \"if, before the effective date of Act No. 80-566, [May 19, 1980,] one year had elapsed between the date of plaintiff's exposure and the date on which plaintiff's action was commenced, then that claim is nevertheless barred by the statute of limitations.\" 399 So.2d at 267. In determining whether the discovery statute applied retroactively, this Court concluded: \"Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because § 95 of the [Alabama] Constitution restricts the legislative power to do so.\" 399 So.2d at 270. As explained in Tyson, based on the law as it then existed, Tony Henderson's claim of personal injury resulting from exposure to asbestos would have accrued in 1972, on the date of his last exposure to asbestos at CAPCO. Based on the one-year statute of limitations applicable to personal injury claims at the time of the accrual of Tony Henderson's claim, his claim was time-barred in 1973. Accordingly, at the time of his death, Tony Henderson could not, under Alabama law, \"have commenced an action for such wrongful act, omission, or negligence if it had not caused death.\"",
"§ 6-5-410(a). To support her argument that, in applying the proviso of § 6-5-410(a), this Court disregard Alabama's conflicts-of-law rule that the procedural law of the forum must be applied, Sheila Henderson relies on this Court's decisions in Pace v. Armstrong World Industries, Inc., 578 So. 2d 281 (Ala.1991), and Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979). In Pace, this Court answered a certified question from the United States District Court for the Southern District of Alabama. That court presented the following facts. Joseph Pace was allegedly last exposed to asbestos at his place of employment in 1966. He was diagnosed with chronic obstructive lung disease in 1985 and in 1986 sued in the United States District Court for the Northern District of Texas to recover for his injuries. The action was transferred to the United States District Court for the Southern District of Alabama (\"the Southern District\") pursuant to 28 U.S.C.",
"§ 1404(a). Alabama substantive *631 law applied to Pace's personal-injury claim. 578 So.2d at 282. However, pursuant to the United States Supreme Court's decisions in Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964), and Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), \"`the Texas statute of limitations governed Pace's personal injury claim, as a matter of procedural law, and... the claim was timely filed.'\" 578 So.2d at 282 (quoting certificate filed by the Southern District). Accordingly, the action was governed by Texas procedural law and Alabama substantive law. Pace died in 1988 while his personal-injury claim was pending before the Southern District. His personal representative, Henry Pace, filed an amended complaint in the action, seeking to recover for Pace's alleged wrongful death. Henry Pace did not file an independent action.",
"The defendants moved to dismiss the amended complaint on the ground that it was time-barred by Alabama's wrongful-death statute. In response to the motion to dismiss, Henry Pace contended that Alabama's wrongful-death statute did not \"`require the underlying personal injury action to be available in Alabama'\" and did not \"`require that the [decedent] must have been able to commence such an action in Alabama.'\"",
"578 So.2d at 282-83 (quoting certificate filed by the Southern District). Henry Pace also contended that a decedent's \"`personal representative may convert [an existing, timely, personal-injury action in a foreign court] to a wrongful death action.'\" 578 So.2d at 283 (emphasis added). This Court consented to answer the following question presented by the Southern District: \"`Whether the inability of the decedent to [commence] a personal injury action in the State of Alabama prior to the time of death precludes amendment of his existing personal injury action by the decedent's representative so as to bring an action for wrongful death under Ala.Code 1975, § 6-5-410?'\" 578 So.2d at 283.",
"Accordingly, this Court consented to address the issue raised by Henry Pace's second contention. After discussing the history of the wrongful-death statute and the applicable rules of statutory construction, this Court stated: \"We find the extent of the restrictive scope of the proviso to be in doubt. The facts of this casethe application of the substantive law of Alabama and the procedural law of Texasfrom all appearances, was not in the mind of the legislature at the time of the enactment of the statute.",
"Section 6-5-410 does not address the eventuality that underlying personal injury actions would be commenced outside the State of Alabama. Indeed, the defendants' historical analysis of § 6-5-410 supports this statement. Because we find the restrictive scope of the proviso to be in doubt, we must strictly construe its restrictive scope. Sutherland [Statutory Construction § 47.08 (4th ed.)]. We must also adhere to the rule on omitted words, which compels this Court to proceed with caution in supplying omitted words and to supply them only where the omission is palpable. 73 Am.Jur.2d [Statutes § 203 (1974)]. Applying a strict construction to the language of the proviso, we will restrict from the operation of § 6-5-410 only those actions that are expressly restricted; and, there can be no doubt that the proviso does not expressly preclude a personal representative from commencing an action in Alabama where the decedent had timely commenced a personal injury action for the same wrongful act or omission that caused the *632 decedent's death. We also find that the legislature's omission of words that would mandate that the decedent must have been able to commence a personal injury action in Alabama is not palpable, and we conclude, therefore, that this Court should not, by construction, insert into the statute words that would have that effect.\" 578 So.2d at 285.",
"Based on this reasoning, and in response to the certified question, this Court held: \"[T]he decedent's inability to commence a personal injury action in Alabama had death not occurred does not preclude his personal representative from converting his existing personal injury action filed in Texas[, and subject to Texas procedural law,] into a wrongful death action under Ala.Code 1975, § 6-5-410.\" 578 So.2d at 286 (bracketed language and emphasis added). Henderson argues that this Court's decision in Pace stands for the proposition that any personal-injury action filed outside Alabama by the decedent before death satisfies the proviso of § 6-5-410 with respect to a personal representative's action in Alabama initially filed under the wrongful-death act. Were we to accept this argument, Alabama's conflicts-of-law rulei.e., that the procedural rules of the forum applywould not apply to the personal-injury action contemplated by the proviso in § 6-5-410, and the proviso would be satisfied so long as the decedent could have filed a personal-injury action in another forum at the time of his death. Under the construction of Pace and the proviso suggested by Henderson, the proviso would have a limited field of operation.",
"Cf. Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197, 200-01 (Ala.2001). We cannot agree with an application of § 6-5-410 that would so limit the proviso and remove it from operation of our traditional conflicts-of-law rules. Just as this Court concluded in Pace that the legislature did not anticipate a scenario triggered by the peculiarities of the interplay between state and federal law by reason of 28 U.S.C. § 1404(a), see Pace, supra, so we conclude that it was equally beyond the legislature's contemplation that a personal representative, commencing an action in Alabama based on alleged wrongful death, could avoid Alabama's conflicts-of-law rules and apply more favorable procedural rules of some other jurisdiction to meet the requirements of the proviso. Indeed, this view is reenforced by recognition of the legislature's attempt to restrict the availability of § 6-5-410 to \"a court of competent jurisdiction within the State of Alabama, and not elsewhere.",
"\"[7] (Emphasis added.) Accordingly, we confine our reading of Pace to the facts presented, specifically, to those circumstances in which the substantive law of Alabama and the procedural law of another state apply and under which procedural rules the decedent's personal-injury claim is viable. This reading is consistent with Riddle v. Shell Oil Co., 764 F. Supp. 418 (W.D.Va.1990),[8] which this Court cited *633 to support its conclusion in Pace. We decline to extend the holding in Pacethat this Court could not interlineate the phrase \"in Alabama\" so as to require that the decedent must have been able to commence a personal-injury action in Alabamabeyond the context of the setting there presented, i.e., where the forum was obliged to apply the statute of limitations of another jurisdiction under governing principles of conflicts of laws.",
"Henderson also relies on this Court's decision in Textron, Inc. v. Whitfield, supra. In that case, Hubert Whitfield filed a personal-injury claim in the Jefferson Circuit Court under the Alabama Uniform Commercial Code. Whitfield subsequently filed an action in the United States District Court of Vermont stating the same cause of action. The defendant in the Alabama action moved to dismiss Whitfield's claim on the ground that it was barred by the applicable statute of limitations. The trial court granted that motion, but it did not specify whether the dismissal was with or without prejudice. The defendant in the Vermont action then moved for a summary judgment on the ground that Whitfield's claim was barred by the doctrine of res judicata. While that motion was pending, Whitfield filed what this Court characterized as a motion under Rule 60(b), Ala. R. Civ. P., asking the Alabama court to amend its judgment to state that the dismissal was \"without prejudice.\"",
"The Alabama trial court granted Whitfield's motion, and the defendant appealed. This Court ruled that the Alabama trial court did not exceed its discretion in granting Whitfield's Rule 60(b) motion. This Court then addressed the res judicata question that was at issue before the Vermont court, noting that the disposition of the Alabama action based on the statute of limitations was procedural and therefore did not have a preclusive effect on the Vermont action. This Court stated: \"We are of the opinion that if the plaintiff can present his claim elsewhere, in a jurisdiction which has a longer or different statute of limitations, and prevail on the merits of his claim, he should have that opportunity.\" 380 So.2d at 260. Henderson argues that this statement in Textron was an invitation by this Court for plaintiffs to file personal-injury actions in jurisdictions with more favorable statutes of limitation, and, thus, she argued, the Georgia action satisfies the proviso of § 6-5-410. As an initial matter, we note that Textron involved a personal-injury action, not a wrongful-death action; it did not implicate the proviso of § 6-5-410.",
"Furthermore, this Court made clear in Textron that the conflicts-of-law rules of the forum would apply to any action filed in a sister jurisdiction, so that the procedural rules of that jurisdiction would determine whether the plaintiff's personal-injury action was viable. Textron condoned nothing more than the right to pursue in another jurisdiction a claim that would be viable under the statute of limitations applicable in that jurisdiction under such jurisdiction's conflicts-of-law rule.",
"Consistent with Textron, the Georgia conflicts-of-law rules and thus the procedural rules of Georgia applied to determine the timeliness of the Hendersons' previously filed personal-injury action in Georgia. However, Henderson voluntarily dismissed that action. She did not choose to amend it, as did the plaintiff in Pace, to assert a wrongful-death claim. [9] Instead, *634 she filed an independent action in Alabama. Accordingly, under the doctrine of lex fori, the law of this forum applies to the determination required by the proviso of § 6-5-410. The legislature could have specified the application of a rule other than the common-law rule of lex fori for determining the result of the inquiry called for by the proviso of § 6-5-410.",
"Likewise, it could have specified a particular state's statute of limitations be considered in determining whether a decedent could have commenced an action. However, the legislature did neither. See Housing Auth. of Huntsville v. Hartford Accident & Indem. Co., 954 So. 2d 577, 582 (Ala.2006) (\"The common-law doctrine allowing a surety to assert all defenses available to its principal was in existence when § 6-5-221 was enacted. The legislature could have expressly limited that doctrine if it desired to do so, but it chose not to.\"). As previously noted, the initial, albeit unsuccessful, legislative choice was to confine the remedy to Alabama courts. Faced with the legislature's silence on this issue, we apply traditional conflicts-of-law rules and the doctrine of lex fori to the inquiry required by the proviso, i.e., whether Tony Henderson could have commenced a personal-injury action based on mesothelioma had it not caused his death. In light of the legislature's failure to override our rules on conflicts of law and under the longstanding conflicts-of-law principle of lex fori, the law of Alabama supplies the procedural law, including the statute of limitations, to determine the outcome of the inquiry called for by the proviso as to whether Tony Henderson could have commenced a personal-injury action for the injuries that allegedly caused his death had he not died.",
"As explained above, pursuant to the proviso and the conflicts-of-law rule under which it operates, any claim Tony Henderson could have brought was barred by the procedural laws of this State. See Tyson. Accordingly, Sheila Henderson has not satisfied the proviso of § 6-5-410, and CSX and MeadWestvaco have shown that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. Although the trial court rejected this defense, we can affirm its judgment on an alternative ground. See Steele v. Walser, 880 So. 2d 1123 (Ala.2003), noting the rule that an appellate court, based on an alternative argument asserted by the appellee, may affirm a judgment on an issue previously rejected by the trial court. Because we resolve this appeal on the basis of the statute of limitations applicable to determine compliance with the proviso of § 6-5-410, we need not address the issues the parties raise regarding the rule of repose[10] or any duty owed by CSX.",
"*635 IV. Conclusion Based on the foregoing, we affirm the summary judgment for CSX and Mead-Westvaco. 1070522AFFIRMED. 1070497AFFIRMED. 1070509AFFIRMED. COBB, C.J., and WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur. MURDOCK, J., concurs in the result. MURDOCK, Justice (concurring in the result). I concur in the result reached by the main opinion. I conclude that there was no duty on the part of the predecessor of CSX to train or warn the decedent with respect to injury or harm allegedly associated with unloading materials from the predecessor's railcars. Nor has Henderson demonstrated that MeadWestvaco, through its corporate predecessor, bears legal responsibility for the alleged acts and omissions of the decedent's former employer. As to the issue of the statute of limitations, MeadWestvaco notes in its brief that in Griffin v. Unocal Corp., 990 So. 2d 291 (Ala.2008), this Court held that the \"manifest, present injury\" standard recognized in that case is to be accorded prospective operation only, except with respect to the Griffin case itself; Henderson does not argue in this appeal that we should revisit that holding.",
"NOTES [1] Although CSX and MeadWestvaco prevailed below, they assert in their cross-appeals alternative bases for affirming the summary judgment. The cross-appeals are not necessary to achieve the review sought therein. See McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 25 (Ala.1986) (quoting with approval 9 J. Moore and B. Ward, Moore's Federal Practice ¶ 204.11[2] (2d ed.1985): \"`[A]n appellee, though he files no cross-appeal or cross-petition, may offer in support of his judgment any argument that is supported by the record, whether it was ignored by the court below or flatly rejected.'\"). [2] The Hendersons alleged that the predecessor to Bill Vann Company, Inc., Young & Vann Supply Company, sold products and equipment to CAPCO. [3] Except for CSX and Bill Vann Company, Inc., none of the defendants in the Georgia action was named in the action in the St. Clair Circuit Court. [4] The evidence showed that Seaboard Coastline, a predecessor of CSX, actually delivered the asbestos to CAPCO.",
"However, the issue whether CSX is a proper party and may be held liable for the actions or omissions of its predecessor, Seaboard Coastline, has not been raised as an issue in this action, either before the trial court or on appeal. [5] The issue whether MeadWestvaco is a proper party and may be held liable for the actions or omissions of its predecessors has not been raised as an issue in this action, either before the trial court or on appeal. [6] There is some confusion regarding the date the trial court's July 3, 2007, order was made final. Ultimately, the order was certified as final under Rule 54(b), Ala. R. Civ. P., and Henderson was granted, pursuant to Rule 77(d), Ala. R. Civ. P., an additional 30 days to appeal from the date the order became final. Whether the time within which Henderson filed her notice of appeal is calculated from the date of the Rule 54(b) certification or, pursuant to Rule 77(d), from the trial court's entry of summary judgment as to the last defendant, it is apparent that her notice of appeal was timely.",
"[7] We note that in Tennessee Coal, Iron & R.R. v. George, 233 U.S. 354, 34 S. Ct. 587, 58 L. Ed. 997 (1914), the United States Supreme Court held that, despite the restrictive language of § 6-5-410 requiring that the action be asserted in Alabama and \"not elsewhere,\" wrongful-death actions under § 6-5-410 may be asserted in other jurisdictions so long as the jurisdictional and procedural requirements of that jurisdiction are satisfied. [8] In Riddle, pursuant to Van Dusen and Klaxon, supra, the United States District Court for the Western District of Virginia, in a situation similar to that in Pace, applied the conflicts-of-law principles of the transferor forum to the decedent's existing personal-injury claim. 764 F.Supp. at 421. Under those principles, the statute of limitations of the transferor forum applied to the personal-injury claim. Id. [9] We note that in Griffin v. Hunt Refining Co., 292 Ga.App. 451, 453, 664 S.E.2d 823, 826 (2008), the personal representative commenced a wrongful-death action and the Georgia appellate court concluded that Alabama's two-year statute of limitations for wrongful death, rather than the longer Georgia statute of limitations applicable to a personal-injury action, applied to the hypothetical personal-injury action described in the proviso as a matter of Alabama substantive law.",
"Of course, it is axiomatic that the Georgia court's appreciation of the import of an act of the Alabama legislature is not binding precedent in this State. Moreover, for all that appears, the effect of Pace, with its recognition of the applicability of procedural rules to determine the timeliness of the action referred to in the proviso, was not argued, as the court in Griffin does not mention Pace. Of course, whether Georgia's rule of repose would have operated as a separate and independent basis to bar proceedings by Sheila Henderson in Georgia is an issue beyond the province of this discussion. [10] We note that Henderson asserts a violation of § 13 of the Alabama Constitution of 1901 in the context of the availability of a rule of repose under the facts of this case.",
"No such argument is advanced with respect to the availability of the statute of limitations as a defense to Henderson's claim as was held in Tyson, nor does Henderson ask us to overrule Tyson."
]
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00900-CV
IN RE Margie RITTENHOUSE and Bernie Rittenhouse
Original Mandamus Proceeding1
PER CURIAM
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: January 7, 2009
PETITION FOR WRIT OF MANDAMUS DENIED
The court has considered relators’ petition for writ of mandamus and is of the opinion that
relief should be denied. Accordingly, relators’ petition for writ of mandamus is denied. See TEX .
R. APP . P. 52.8(a). Relators shall pay all costs incurred in this proceeding.
PER CURIAM
1 … This proceeding arises out of Cause No. 08-07-26509-CV, styled Margie Rittenhouse and Bernie Rittenhouse v. Ronnie Vance and Alora Loveland, pending in the 38th Judicial District Court, Uvalde County, Texas, the Honorable W att Murrah presiding. | 09-07-2015 | [
"i i i i i i MEMORANDUM OPINION No. 04-08-00900-CV IN RE Margie RITTENHOUSE and Bernie Rittenhouse Original Mandamus Proceeding1 PER CURIAM Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: January 7, 2009 PETITION FOR WRIT OF MANDAMUS DENIED The court has considered relators’ petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relators’ petition for writ of mandamus is denied. See TEX . R. APP . P. 52.8(a). Relators shall pay all costs incurred in this proceeding. PER CURIAM 1 … This proceeding arises out of Cause No.",
"08-07-26509-CV, styled Margie Rittenhouse and Bernie Rittenhouse v. Ronnie Vance and Alora Loveland, pending in the 38th Judicial District Court, Uvalde County, Texas, the Honorable W att Murrah presiding."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2880608/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 14, 2017 COUNTY BANCORP, INC. (Exact name of Registrant as Specified in Its Charter) Wisconsin 001-36808 39-1850431 (State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.) 860 North Rapids Road, Manitowoc, WI (Address of Principal Executive Offices) (Zip Code) Registrant’s Telephone Number, Including Area Code: (920) 686-9998 Not Applicable (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below): ☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 14, 2017 COUNTY BANCORP, INC. (Exact name of Registrant as Specified in Its Charter) Wisconsin 001-36808 39-1850431 (State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.) 860 North Rapids Road, Manitowoc, WI (Address of Principal Executive Offices) (Zip Code) Registrant’s Telephone Number, Including Area Code: (920) 686-9998 Not Applicable (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below): ☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)."
]
| 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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AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT This AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT (this “Third Amendment”) dated as of January 31, 2008, is by and among ASC Signal Corporation, a corporation incorporated under the laws of Delaware (the “Purchaser”), Andrew Corporation, a Delaware corporation (“Andrew”), and Andrew Canada Inc., Andrew Limited, Andrew Holdings (Germany) GmbH, (each a “Seller”, and collectively with Andrew, the “Sellers”).Purchaser and Sellers may be referred to individually as a “Party” and collectively as the “Parties.” WHEREAS, the Parties have previously entered into that certain Purchase and Sale Agreement (the “Original Agreement”), made as of November 5, 2007; WHEREAS, the Parties have previously entered into that certain Amendment No. 1 to Purchase and Sale Agreement, made as of December 20, 2007, and that certain Amendment No. 2 to Purchase and Sale Agreement, made as of December 28, 2007, in each case amending the Original Agreement; and WHEREAS, the Parties desire to further amend the Original Agreement, as permitted by Section 13.2 thereof; NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants set forth herein, the Parties agree as follows: 1. Amendment to Section 1.1.Section 1.1 of the Original Agreement is hereby amended and restated to include or amend and restate, as the case may be, the following definitions: “Actual Accrued Vacation Payment” shall have the meaning set forth in Section 11.8. “Andrew China” shall have the meaning set forth in Section 6.24. “Australian Margin” shall have the meaning set forth in Section 6.21(b). “Brazilian Customers” shall mean Star One, Globo Comunicacao e Participacoes and Siemens and any other customer doing business in Brazil, in each case solely with respect to the Business. “Brazilian Margin” shall have the meaning set forth in Section 6.22(b). “Brazilian Purchase Orders” shall have the meaning set forth in Section 6.22(a). “Broadcast Australia” shall have the meaning set forth in Section 6.21(a). “Broadcast Australia Purchase Orders” shall have the meaning set forth in Section 6.21(a). “Chinese Assets” shall have the meaning set forth in Section 6.24. “Deferred Transaction Assets” is amended to include the phrase “and excluding any reserves taken against Inventory that are related to the sale of the Business” immediately after “Calculation Principles” in subsection (ii) of this definition. “Employee Wages” shall have the meaning set forth in Section 6.26. “ESA Agreement” shall mean the Purchase Agreement between Andrew and Purchaser for the supply by Andrew to Purchaser of earth station antennas and accessories. “Estimated Accrued Vacation Payment” shall have the meaning set forth in Section 11.8. “Final Deferred Inventory Value” shall replace the term “Final Deferred Asset Value”. “Hwadar” shall have the meaning set forth in Section 6.24. “Initial Deferred Inventory Value” shall replace the term “Initial Deferred Asset Value”. “Lathe Operational Actions” shall have the meaning set forth in Section 6.17. “Net Inventory Amount” shall mean the aggregate value (excluding any reserves taken against Inventory that are related to the sale of the Business) of the Inventory, including the Reserved Inventory, as of the Closing Date, net of reserves, in each case as determined in accordance with the Calculation Principles. “Other Letters of Credit” shall mean those certain letters of credit set forth on Schedule 4.12 (k), | [
"AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT This AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT (this “Third Amendment”) dated as of January 31, 2008, is by and among ASC Signal Corporation, a corporation incorporated under the laws of Delaware (the “Purchaser”), Andrew Corporation, a Delaware corporation (“Andrew”), and Andrew Canada Inc., Andrew Limited, Andrew Holdings (Germany) GmbH, (each a “Seller”, and collectively with Andrew, the “Sellers”).Purchaser and Sellers may be referred to individually as a “Party” and collectively as the “Parties.” WHEREAS, the Parties have previously entered into that certain Purchase and Sale Agreement (the “Original Agreement”), made as of November 5, 2007; WHEREAS, the Parties have previously entered into that certain Amendment No. 1 to Purchase and Sale Agreement, made as of December 20, 2007, and that certain Amendment No. 2 to Purchase and Sale Agreement, made as of December 28, 2007, in each case amending the Original Agreement; and WHEREAS, the Parties desire to further amend the Original Agreement, as permitted by Section 13.2 thereof; NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants set forth herein, the Parties agree as follows: 1.",
"Amendment to Section 1.1.Section 1.1 of the Original Agreement is hereby amended and restated to include or amend and restate, as the case may be, the following definitions: “Actual Accrued Vacation Payment” shall have the meaning set forth in Section 11.8. “Andrew China” shall have the meaning set forth in Section 6.24. “Australian Margin” shall have the meaning set forth in Section 6.21(b). “Brazilian Customers” shall mean Star One, Globo Comunicacao e Participacoes and Siemens and any other customer doing business in Brazil, in each case solely with respect to the Business.",
"“Brazilian Margin” shall have the meaning set forth in Section 6.22(b). “Brazilian Purchase Orders” shall have the meaning set forth in Section 6.22(a). “Broadcast Australia” shall have the meaning set forth in Section 6.21(a). “Broadcast Australia Purchase Orders” shall have the meaning set forth in Section 6.21(a). “Chinese Assets” shall have the meaning set forth in Section 6.24. “Deferred Transaction Assets” is amended to include the phrase “and excluding any reserves taken against Inventory that are related to the sale of the Business” immediately after “Calculation Principles” in subsection (ii) of this definition.",
"“Employee Wages” shall have the meaning set forth in Section 6.26. “ESA Agreement” shall mean the Purchase Agreement between Andrew and Purchaser for the supply by Andrew to Purchaser of earth station antennas and accessories. “Estimated Accrued Vacation Payment” shall have the meaning set forth in Section 11.8. “Final Deferred Inventory Value” shall replace the term “Final Deferred Asset Value”. “Hwadar” shall have the meaning set forth in Section 6.24. “Initial Deferred Inventory Value” shall replace the term “Initial Deferred Asset Value”. “Lathe Operational Actions” shall have the meaning set forth in Section 6.17. “Net Inventory Amount” shall mean the aggregate value (excluding any reserves taken against Inventory that are related to the sale of the Business) of the Inventory, including the Reserved Inventory, as of the Closing Date, net of reserves, in each case as determined in accordance with the Calculation Principles.",
"“Other Letters of Credit” shall mean those certain letters of credit set forth on Schedule 4.12 (k),"
]
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Order Michigan Supreme Court Lansing, Michigan
March 23, 2012 Robert P. Young, Jr., Chief Justice
144184 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly ATTORNEY GENERAL, Brian K. Zahra, Plaintiff-Appellant, Justices
v SC: 144184 COA: 306685 Ingham CC: 11-000538-CZ CIVIL SERVICE COMMISSION and STATE PERSONNEL DIRECTOR, Defendants-Appellees.
_________________________________________/
On order of the Court, the application for leave to appeal prior to decision by the Court of Appeals is considered, and it is DENIED, because the Court is not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals.
MARKMAN, J. (dissenting).
I would grant the Attorney General’s motion to bypass the Court of Appeals. In my judgment, this dispute, concerning the constitutionality of the Civil Service Commission’s authorization of expanded health-care benefits for certain public employees, as with the recent dispute concerning the constitutionality of the emergency financial managers act, In re Executive Message, 490 Mich 999 (2012), presents questions of Michigan constitutional law that warrant the expedited consideration of the highest court of this state. Individuals and communities that are immediately affected, as well as the citizenry generally, whose constitution is at issue, are entitled to dispositive resolutions of these disputes in a reasonably facilitated manner. I would have treated each of these disputes as priority matters for our consideration. I respectfully dissent.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 23, 2012 _________________________________________ t0320 Clerk | 03-01-2013 | [
"Order Michigan Supreme Court Lansing, Michigan March 23, 2012 Robert P. Young, Jr., Chief Justice 144184 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly ATTORNEY GENERAL, Brian K. Zahra, Plaintiff-Appellant, Justices v SC: 144184 COA: 306685 Ingham CC: 11-000538-CZ CIVIL SERVICE COMMISSION and STATE PERSONNEL DIRECTOR, Defendants-Appellees. _________________________________________/ On order of the Court, the application for leave to appeal prior to decision by the Court of Appeals is considered, and it is DENIED, because the Court is not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals. MARKMAN, J. (dissenting). I would grant the Attorney General’s motion to bypass the Court of Appeals. In my judgment, this dispute, concerning the constitutionality of the Civil Service Commission’s authorization of expanded health-care benefits for certain public employees, as with the recent dispute concerning the constitutionality of the emergency financial managers act, In re Executive Message, 490 Mich 999 (2012), presents questions of Michigan constitutional law that warrant the expedited consideration of the highest court of this state. Individuals and communities that are immediately affected, as well as the citizenry generally, whose constitution is at issue, are entitled to dispositive resolutions of these disputes in a reasonably facilitated manner. I would have treated each of these disputes as priority matters for our consideration. I respectfully dissent.",
"I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 23, 2012 _________________________________________ t0320 Clerk"
]
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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 .
The NON-FINAL Office Action is in response to applicant’s communication on 10/06/2020 regarding application 17/063,778. The following is first action on the merits. Acknowledgement is made to foreign priority claimed to JP2019/217347 filed 11/29/2019.
Status of Claims Claim(s) 1-13 are currently pending and are rejected as follows.
Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 101 because the claimed invention(s) is/are directed to a judicial exception (i.e. law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-13 are directed towards an invention for the extracting of information and sensor data, detecting an input item, and then inputting the extracted information onto the input item. These actions fall within a subject matter of abstract ideas which the courts have Under Step 1 of the Alice/Mayo framework, it must be considered whether the claims are directed to one of the four statutory classes of invention. Claims 1-8 is directed towards a processing device which falls under the product category. Claims 9-12 is directed towards a method comprising at least one step. Claim 13 is directed towards a non-transitory recording medium which falls under the product category. Accordingly, the claims fall within the four statutory categories of invention (method and product) and will be further analyzed under Step 2 of the Alice/Mayo framework. Under Step 2A, Prong One, of the Alice/Mayo framework, it must be considered whether the claims recite an abstract idea. Regarding representative independent claims 1, 9, and 13 set forth an invention for the extracting of information and sensor data, detecting an input item, and then inputting the extracted information onto the input item, which is directed towards a mental process in the following limitations: Extract input items from operation plan information Receive…data indicating operation progress, the…data being added with data used for determining an operation type Detect an input item from the extracted input items based on the data added to the…data Input the…data to the detected input item
Dependent claims 2-8, and 10-12 merely further limit the abstract idea and thus are subject to the same rationale as expressed above. Under Step 2A, Prong Two, the claims recite the following additional elements Independent claims 1, 9, and 13 recite the following additional elements: A sensor Circuitry A non-transitory recording medium One or more processors Dependent claim 5 recites the following additional elements An input device An information processing device A display A network These additional elements, considered both individually and as an ordered pair do no more than generally link the user of the abstract idea to a particular technological environment or field of use. These elements are also mere instructions designed to implement the abstract idea (“apply it”) on a computer (See MPEP 2106.05(f)). These elements are recited with a high degree of generality, and the specification sets forth the general purpose nature of technologies required to implement the invention (emphasis added). Support for this determination can be found in applicant’s specification (Page 3 line 25 – Page 4 lines 14; Page 4 lines 23-30)
Dependent claims 2-4, 6-8, and 10-12 do not recite any other additional elements and are thus rejected for the same reasons recite above.
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.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Celestini (US 2007/0192128 A1).
Claims 1, 9, and 13 – Celestini discloses the following: An information processing device, comprising circuitry configured to (Celestini: Paragraph 74, “Instructions and operations for MMD 20 are controlled by a Central Processing Unit (CPU) 90. Synchronization of activities and instructions are carried out by reference to a real time clock 95. MMD 20 and machine 15 data is stored in flash memory 100, read-only-memory (ROM) 105, random-access-memory (RAM) 110, on an internal disk 115, or other storage media, not shown, internal to the MMD 20. The MMD 20 may also have one or more LEDs 120 for indicating MMD 20 power status and the status of various MMD 20 input connectors 45, output connectors 70, serial ports 60 and network ports 80.”) A non-transitory recording medium storing a plurality of instructions which, when executed by one or more processors, cause the processors to perform a method (Celestini: Paragraph 74, “Instructions and operations for MMD 20 are controlled by a Central Processing Unit (CPU) 90. Synchronization of activities and Extract input items from operation plan information (Celestini: Paragraph 89, “reporter module 160 and extracts and processes data from the database 180 as required by the queries. The database manager 175 then forwards the results of these queries, generally as collections of records, to the reports CGI module 155 and reporter module 160 which output them as required.”) Receive sensor data indicating operation progress, the sensor data being added with data used for determining an operation type, (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like. These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Detect an input item from the extracted input items based on the data added to the sensor data (Celestini: Paragraph 103, “A cumulative machine status report may provide a pie chart that shows the proportions of the time interval during which the machine 10 was in each state. For a chronological machine status report, a bar chart may be used to illustrate which states the machine 15 was in at each moment Input the sensor data to the detected input item (Celestini: Paragraph 104, “The user can define limits which can be displayed on the chart and the user can choose to have the engine 140 generate alarms and/or send e-mails as the limits are approached or surpassed. This report requires that the user determine the information to be monitored, applicable limits, and actions to be taken as limits are approached or surpassed.”)
Claim 2 and 10 – Celestini discloses the limitations of claims 1 and 9 Celestini further discloses: Wherein the sensor data is further added with status data indicating an operation status of an operation line, and (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like. These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Wherein the circuitry inputs the sensor data in response to the stats data indicating that the operation line is in operation (Celestini: Paragraph 81, “This incoming data is generally referred to as operational data because it is data relating to operation of the machines 15 in a manufacturing facility. However, it will be understood that the operational data may include any type of data that may be
Claims 3 – Celestini discloses the limitations of claims 1 Celestini further discloses: Wherein the circuitry generates a delay notification when detecting a delay in operation progress (Celestini: Paragraph 86, “may also generate engine outputs in the form of MMD 20 output signals, data packages for other nodes and e-mail notifications in response to inputs from machines 15, whether there has been an input change or not, based on time, or in response to the result of transformations undertaken by the engine 140 in response to an input change.”; Paragraph 164, “the management software 600 could direct the worker to a machine that is a bottleneck in the production line (because of a low actual production rate compared to expected production rate) first over another machine on the production line that may be running slowly but that is not delaying the production line because it is downstream from the machine causing the bottleneck…”)
Claim 4 – Celestini discloses the limitations of claim 1
Wherein the circuitry generates dynamic content dynamically indicating the operation progress (Celestini: Paragraph 103, “A cumulative machine status report may provide a pie chart that shows the proportions of the time interval during which the machine 10 was in each state. For a chronological machine status report, a bar chart may be used to illustrate which states the machine 15 was in at each moment over a given interval of time. Machine status reports require that the user determine which states the user would like to monitor. The system 10 may include preset defaults for typical requirements.”)
Claim 5 – Celestini discloses the limitations of claim 1 Celestini further discloses: An input device including input device circuitry configured to generate the operation plan information (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost. These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”) Provide the operation plan information to the information processing device (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost. These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”) And wherein the circuitry performs at least one of causing a display to display content including the input sensor data, or transmitting the input sensor data to a server device through a predetermined network (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost. These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”)
Claim 6 – Celestini discloses the limitations of claims 1 and 5
Wherein the sensor data is further added with status data indicating an operation status of an operation line; and (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like. These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Wherein the circuity inputs the sensor data in response to the status indicating the operation line is in operation (Celestini: Paragraph 81, “This incoming data is generally referred to as operational data because it is data relating to operation of the machines 15 in a manufacturing facility. However, it will be understood that the operational data may include any type of data that may be generated in the operation of an organization.”; Paragraph 152, “indicate a high level of urgency. This scheme allows a person to, at a glance, have a complete view of the operational health of the organization to which he/she belongs. It also gives an indication of which areas face the greatest difficulties and where efforts should be concentrated for improvements…”)
Claims 7 and 11 – Celestini discloses the limitations of claims 1, 5, and 9 Celestini further discloses Wherein the circuitry generates a delay notification when detecting a delay in the operation progress (Celestini: Paragraph 107, “The user identifies the events for which they wish to have an e-mail notification generated, to which e-mail address
Claims 8 and 11 – Celestini discloses the limitations of claims 1, 5, and 9 Celestini further discloses Wherein the circuitry generates dynamic content dynamically indicating the operation progress (Celestini: Paragraph 16, “the operational data is real-time operational data and the data processing module operates on the real-time operational data.”; Paragraph 96, “The reports CGI module 155 is capable of modifying reports in real-time in response to changes in inputs, as handled by the engine 140 and database manager 175 and set out during configuration, to allow a user to see changes as they occur.”)
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Miyazaki (US 2003/0023334 A1) Radican (US 6148291 A) Nagar (US 878414 B1) Von Kohorn (US 5697844) Ootake (US 20200089200 A1) Maeda (US 2019/0340547 A1)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Philip N Warner whose telephone number is (571)270-7407. The examiner can normally be reached on Monday-Friday 7am-4:00pm. 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.
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.
/Philip N Warner/Examiner, Art Unit 3624
/Jerry O'Connor/Supervisory Patent Examiner,Group Art Unit 3624 | 2021-10-05T04:30:55 | [
"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 . The NON-FINAL Office Action is in response to applicant’s communication on 10/06/2020 regarding application 17/063,778. The following is first action on the merits. Acknowledgement is made to foreign priority claimed to JP2019/217347 filed 11/29/2019. Status of Claims Claim(s) 1-13 are currently pending and are rejected as follows. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.",
"Claim(s) 1-13 is/are rejected under 35 U.S.C. 101 because the claimed invention(s) is/are directed to a judicial exception (i.e. law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 1-13 are directed towards an invention for the extracting of information and sensor data, detecting an input item, and then inputting the extracted information onto the input item. These actions fall within a subject matter of abstract ideas which the courts have Under Step 1 of the Alice/Mayo framework, it must be considered whether the claims are directed to one of the four statutory classes of invention.",
"Claims 1-8 is directed towards a processing device which falls under the product category. Claims 9-12 is directed towards a method comprising at least one step. Claim 13 is directed towards a non-transitory recording medium which falls under the product category. Accordingly, the claims fall within the four statutory categories of invention (method and product) and will be further analyzed under Step 2 of the Alice/Mayo framework. Under Step 2A, Prong One, of the Alice/Mayo framework, it must be considered whether the claims recite an abstract idea. Regarding representative independent claims 1, 9, and 13 set forth an invention for the extracting of information and sensor data, detecting an input item, and then inputting the extracted information onto the input item, which is directed towards a mental process in the following limitations: Extract input items from operation plan information Receive…data indicating operation progress, the…data being added with data used for determining an operation type Detect an input item from the extracted input items based on the data added to the…data Input the…data to the detected input item Dependent claims 2-8, and 10-12 merely further limit the abstract idea and thus are subject to the same rationale as expressed above.",
"Under Step 2A, Prong Two, the claims recite the following additional elements Independent claims 1, 9, and 13 recite the following additional elements: A sensor Circuitry A non-transitory recording medium One or more processors Dependent claim 5 recites the following additional elements An input device An information processing device A display A network These additional elements, considered both individually and as an ordered pair do no more than generally link the user of the abstract idea to a particular technological environment or field of use. These elements are also mere instructions designed to implement the abstract idea (“apply it”) on a computer (See MPEP 2106.05(f)). These elements are recited with a high degree of generality, and the specification sets forth the general purpose nature of technologies required to implement the invention (emphasis added). Support for this determination can be found in applicant’s specification (Page 3 line 25 – Page 4 lines 14; Page 4 lines 23-30) Dependent claims 2-4, 6-8, and 10-12 do not recite any other additional elements and are thus rejected for the same reasons recite above.",
"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. Claim(s) 1-13 is/are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Celestini (US 2007/0192128 A1). Claims 1, 9, and 13 – Celestini discloses the following: An information processing device, comprising circuitry configured to (Celestini: Paragraph 74, “Instructions and operations for MMD 20 are controlled by a Central Processing Unit (CPU) 90. Synchronization of activities and instructions are carried out by reference to a real time clock 95. MMD 20 and machine 15 data is stored in flash memory 100, read-only-memory (ROM) 105, random-access-memory (RAM) 110, on an internal disk 115, or other storage media, not shown, internal to the MMD 20. The MMD 20 may also have one or more LEDs 120 for indicating MMD 20 power status and the status of various MMD 20 input connectors 45, output connectors 70, serial ports 60 and network ports 80.”) A non-transitory recording medium storing a plurality of instructions which, when executed by one or more processors, cause the processors to perform a method (Celestini: Paragraph 74, “Instructions and operations for MMD 20 are controlled by a Central Processing Unit (CPU) 90.",
"Synchronization of activities and Extract input items from operation plan information (Celestini: Paragraph 89, “reporter module 160 and extracts and processes data from the database 180 as required by the queries. The database manager 175 then forwards the results of these queries, generally as collections of records, to the reports CGI module 155 and reporter module 160 which output them as required.”) Receive sensor data indicating operation progress, the sensor data being added with data used for determining an operation type, (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like. These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Detect an input item from the extracted input items based on the data added to the sensor data (Celestini: Paragraph 103, “A cumulative machine status report may provide a pie chart that shows the proportions of the time interval during which the machine 10 was in each state.",
"For a chronological machine status report, a bar chart may be used to illustrate which states the machine 15 was in at each moment Input the sensor data to the detected input item (Celestini: Paragraph 104, “The user can define limits which can be displayed on the chart and the user can choose to have the engine 140 generate alarms and/or send e-mails as the limits are approached or surpassed. This report requires that the user determine the information to be monitored, applicable limits, and actions to be taken as limits are approached or surpassed.”) Claim 2 and 10 – Celestini discloses the limitations of claims 1 and 9 Celestini further discloses: Wherein the sensor data is further added with status data indicating an operation status of an operation line, and (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like.",
"These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Wherein the circuitry inputs the sensor data in response to the stats data indicating that the operation line is in operation (Celestini: Paragraph 81, “This incoming data is generally referred to as operational data because it is data relating to operation of the machines 15 in a manufacturing facility. However, it will be understood that the operational data may include any type of data that may be Claims 3 – Celestini discloses the limitations of claims 1 Celestini further discloses: Wherein the circuitry generates a delay notification when detecting a delay in operation progress (Celestini: Paragraph 86, “may also generate engine outputs in the form of MMD 20 output signals, data packages for other nodes and e-mail notifications in response to inputs from machines 15, whether there has been an input change or not, based on time, or in response to the result of transformations undertaken by the engine 140 in response to an input change.”; Paragraph 164, “the management software 600 could direct the worker to a machine that is a bottleneck in the production line (because of a low actual production rate compared to expected production rate) first over another machine on the production line that may be running slowly but that is not delaying the production line because it is downstream from the machine causing the bottleneck…”) Claim 4 – Celestini discloses the limitations of claim 1 Wherein the circuitry generates dynamic content dynamically indicating the operation progress (Celestini: Paragraph 103, “A cumulative machine status report may provide a pie chart that shows the proportions of the time interval during which the machine 10 was in each state.",
"For a chronological machine status report, a bar chart may be used to illustrate which states the machine 15 was in at each moment over a given interval of time. Machine status reports require that the user determine which states the user would like to monitor. The system 10 may include preset defaults for typical requirements.”) Claim 5 – Celestini discloses the limitations of claim 1 Celestini further discloses: An input device including input device circuitry configured to generate the operation plan information (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost. These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”) Provide the operation plan information to the information processing device (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost.",
"These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”) And wherein the circuitry performs at least one of causing a display to display content including the input sensor data, or transmitting the input sensor data to a server device through a predetermined network (Celestini: Paragraph 142, “The functionality of the management software 600 and the use/impact of the financial data can be further understood by considering a role-based user interface for the management software 600 and the information displayed using the user interface.”; Paragraph 143, “The three categories include information related to margin, metrics and opportunity cost.",
"These categories are shown for illustrative purposes only and are not meant to be limiting. In FIG. 14A, central display 702 is displaying information related to metrics and includes buttons 706 and 708 for switching to other categories of information.”) Claim 6 – Celestini discloses the limitations of claims 1 and 5 Wherein the sensor data is further added with status data indicating an operation status of an operation line; and (Celestini: Paragraph 104, “Signal reports plot data from a particular sensor/signal over time, such as temperature, vibration, spindle load, cabinet humidity, or the like. These reports thus allow users to see trends in the signal but also what is occurring in real time…”) Wherein the circuity inputs the sensor data in response to the status indicating the operation line is in operation (Celestini: Paragraph 81, “This incoming data is generally referred to as operational data because it is data relating to operation of the machines 15 in a manufacturing facility. However, it will be understood that the operational data may include any type of data that may be generated in the operation of an organization.”; Paragraph 152, “indicate a high level of urgency.",
"This scheme allows a person to, at a glance, have a complete view of the operational health of the organization to which he/she belongs. It also gives an indication of which areas face the greatest difficulties and where efforts should be concentrated for improvements…”) Claims 7 and 11 – Celestini discloses the limitations of claims 1, 5, and 9 Celestini further discloses Wherein the circuitry generates a delay notification when detecting a delay in the operation progress (Celestini: Paragraph 107, “The user identifies the events for which they wish to have an e-mail notification generated, to which e-mail address Claims 8 and 11 – Celestini discloses the limitations of claims 1, 5, and 9 Celestini further discloses Wherein the circuitry generates dynamic content dynamically indicating the operation progress (Celestini: Paragraph 16, “the operational data is real-time operational data and the data processing module operates on the real-time operational data.”; Paragraph 96, “The reports CGI module 155 is capable of modifying reports in real-time in response to changes in inputs, as handled by the engine 140 and database manager 175 and set out during configuration, to allow a user to see changes as they occur.”) Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"Miyazaki (US 2003/0023334 A1) Radican (US 6148291 A) Nagar (US 878414 B1) Von Kohorn (US 5697844) Ootake (US 20200089200 A1) Maeda (US 2019/0340547 A1) Any inquiry concerning this communication or earlier communications from the examiner should be directed to Philip N Warner whose telephone number is (571)270-7407. The examiner can normally be reached on Monday-Friday 7am-4:00pm. 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. 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. /Philip N Warner/Examiner, Art Unit 3624 /Jerry O'Connor/Supervisory Patent Examiner,Group Art Unit 3624"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The appellant sought a recovery upon a verbal contract, which is alleged as follows in his petition: "That on or before January 25, 1896, administration of the estate of T.C. Bean, deceased, was pending in the District Court of Grayson County, Texas. That one H.P. Howard and the defendant Hume were the duly appointed and acting administrators of said Bean's estate; that said estate was of great value, and the residue thereof subject to partition and distribution among said Bean's heirs considerable. That on said day the application of one Sarah A. Dove and numerous other persons jointly claiming to be the only and lawful heirs of the said T.C. Bean, was pending in said court, wherein they asked that said residue of said estate not needed for the purposes of administration be partitioned among them. That the right of applicants to said partition was contested by numerous claimants, who denied that applicants were said Bean's heirs; that the unknown heirs of said Bean had been cited to appear and contest said application, and plaintiff, Ed. D. Steger, and Thos. P. Steger, both practicing attorneys, had been duly appointed and recognized by the courts having jurisdiction to do so, to represent said unknown heirs; that for several years previous to said January 24, 1896, the said attorneys did represent said unknown heirs, resisting all applications for said partition of said residue, and generally representing the interests of said unknown heirs. That on said day and long prior thereto defendant Hume claimed to own and did purchase from said Sarah A. Dove and her coapplicants a large interest in said estate, amounting to about eleven-twelfths thereof. That on said day the District Court on the *Page 402 verdict of a jury finding that said Sarah A. Dove and her coapplicants were the true and only lawful heirs of said T.C. Bean, deceased, rendered the statutory judgment in such cases made and provided that the said Sarah A. Dove and her coapplicants were entitled to receive said residue of said estate, and ordered said residue of said estate to be divided among them according to their several interests. That on the rendition of said judgment plaintiff and said Thos. P. Steger applied to the court to allow them a reasonable fee for their services in representing said unknown heirs. That on the hearing of said application it was proven by uncontradicted evidence that their said services were reasonably worth the sum of $3000, but the court refused to allow them said sum, and only allowed them $2000 for their said services, to which ruling of the court they, for the unknown heirs, excepted in open court and were preparing to prosecute an appeal to the Court of Civil Appeals having jurisdiction thereof, relying for error on the sole ground and on no other that the sum allowed them by the court was not reasonable compensation for their said services in and about said matter. That in the judgment of said Steger Steger at the time the evidence was sufficient to sustain said judgment against said unknown heirs, and they did not intend nor propose to appeal for said unknown heirs on any other ground save that the amount so allowed Steger Steger by the court for their services as such attorneys was not reasonable compensation for their said services so rendered in said cause for said unknown heirs. That on or about said day, to wit, January 25, 1896, said Hume, for the purpose of inducing said Stegers to abandon their said appeal, and in consideration of their abandoning their said appeal for said unknown heirs, proposed and offered to this plaintiff and said Thos. P. Steger, to pay them the sum of $1000; that this plaintiff and said Thos. P. Steger accepted said proposition and offer, and then and there agreed to abandon said appeal for the sole question of testing the reasonableness of said allowance, and not to prosecute same in consideration of said promise to them by said Hume to pay them said sum of $1000, and did abandon said appeal, whereby said Hume became liable and promised to pay this plaintiff and said Thos. P. Steger said sum of $1000 then and there. That though often demanded, the said Hume refused to pay the same or any part thereof, except as hereinafter set forth." To this petition a general demurrer was sustained by the court, and no amendment being filed, the suit was dismissed. A majority of the court have concluded that the action of the lower court in dismissing said suit was proper, for the reason that the contract set out in the petition was void as against public policy. The petition shows that in the administration of an estate the plaintiffs were appointed and acted as attorneys for certain unknown heirs. We presume that their appointment was made under Rev. Stats., art. 2161, and if so, their compensation would be regulated by Rev. Stats., art. 2189. Whether we are correct or not in this they were, at any rate, appointed *Page 403 by the court to represent the interests of such unknown heirs, and were allowed by the court the sum of $2000 as their fees. They claim $3000 and gave notice of appeal on behalf of their clients. Appellee Hume represented the principal part of the estate and wanted the litigation ended. He therefore agreed with said attorneys to pay them $1000, the additional amount for which they proposed to contend on appeal, in order to induce them to abandon said appeal. The contention of appellant is that because said attorneys only intended to prosecute said appeal in order to assert their right to said additional $1000, that the contract involved no surrender of any rights of their clients, and was therefore valid. It is, of course, conceded that a contract to pay the attorney of an adverse party to do something or refrain from doing something that will affect the interest of his client is illegal and void. Especially would this be true where the attorney was not acting in his ordinary capacity, but under special appointment of the court to represent interests of clients who were unknown, and with whom, of course, he could not communicate. These principles are not disputed. The only question is their application to the facts of this case. We think it clear that they apply. The right of appeal is a valuable right belonging to the unsuccessful party in a law suit. Whether the appeal would be successful or not, it is deemed valuable to such an extent that it will constitute a good consideration for a contract. 6 Am. and Eng. Enc. of Law, 747, and cases cited under note 5. In this case it would have at least delayed the final judgment for some time and afforded a longer period within which such unknown heirs might have appeared and established their existence and their interest in the estate. It was, at any rate, a right guaranteed them under the law. It could be exercised by the attorneys appointed by the court (Russell's Heirs v. Randolph, 1 Tex. 460 [1 Tex. 460]); and as they alone could exercise the right, their determination as to whether an appeal should be taken was final. This was a right belonging to the unknown heirs, and whatever may have been the purpose of the attorneys, it is apparent that the principal purpose on the part of the appellee was to extinguish that right and make his judgment final. When the appeal was abandoned it would, of course, leave the judgment for $2000 in force; and the promise of Hume to pay $1000 was in effect to grant all that was claimed by the attorneys. His purpose, therefore, in making the agreement could not have been to compromise their claim, because he agreed to pay them all they were claiming; but it must have been to extinguish the right of appeal in their clients. At any rate, the effect of the contract was to deprive the unknown heirs of their right of appeal and to make the judgment against them final sooner than it would otherwise have become so. There can be no doubt that a contract to pay an officer of court a sum of money to influence his conduct with reference to his official duties is against public policy. The attorneys in this case were officers of the *Page 404 court, charged with a responsible duty, the duty of conducting this litigation in the interest of the parties they were appointed to represent. As a part of this duty, when judgment had been rendered, it devolved upon them to determine whether they would or would not prosecute an appeal. In the determination of this question, as every other question which arose in the course of the litigation, it was their duty to act with a view solely to the interest of their clients. Their clients were entitled to their loyal and disinterested opinion, untrammeled by any outside considerations. Any agreement, especially on the part of the adverse party, to pay them a sum of money to determine this question one way or the other, was an unlawful agreement. It may have been that the only object of the attorneys in making the agreement was to settle their own controversy, but in the nature of the case they could not settle this without at the same time settling the other question which they had to determine for their clients, that is, whether or not they would prosecute an appeal; and the latter question is evidently the one which Hume was anxious to have determined. It may also be true that the unknown heirs lost nothing by the arrangement, and no injury was done; but it is not a question of actual injury. The tendency of such transactions determines their character, and we are clearly of the opinion that the contract in question was against public policy as tending to interfere with the proper and unbiased discharge of duty on the part of the officers of the court. Affirmed. DISSENTING OPINION. | 07-06-2016 | [
"The appellant sought a recovery upon a verbal contract, which is alleged as follows in his petition: \"That on or before January 25, 1896, administration of the estate of T.C. Bean, deceased, was pending in the District Court of Grayson County, Texas. That one H.P. Howard and the defendant Hume were the duly appointed and acting administrators of said Bean's estate; that said estate was of great value, and the residue thereof subject to partition and distribution among said Bean's heirs considerable.",
"That on said day the application of one Sarah A. Dove and numerous other persons jointly claiming to be the only and lawful heirs of the said T.C. Bean, was pending in said court, wherein they asked that said residue of said estate not needed for the purposes of administration be partitioned among them. That the right of applicants to said partition was contested by numerous claimants, who denied that applicants were said Bean's heirs; that the unknown heirs of said Bean had been cited to appear and contest said application, and plaintiff, Ed. D. Steger, and Thos. P. Steger, both practicing attorneys, had been duly appointed and recognized by the courts having jurisdiction to do so, to represent said unknown heirs; that for several years previous to said January 24, 1896, the said attorneys did represent said unknown heirs, resisting all applications for said partition of said residue, and generally representing the interests of said unknown heirs. That on said day and long prior thereto defendant Hume claimed to own and did purchase from said Sarah A. Dove and her coapplicants a large interest in said estate, amounting to about eleven-twelfths thereof.",
"That on said day the District Court on the *Page 402 verdict of a jury finding that said Sarah A. Dove and her coapplicants were the true and only lawful heirs of said T.C. Bean, deceased, rendered the statutory judgment in such cases made and provided that the said Sarah A. Dove and her coapplicants were entitled to receive said residue of said estate, and ordered said residue of said estate to be divided among them according to their several interests. That on the rendition of said judgment plaintiff and said Thos. P. Steger applied to the court to allow them a reasonable fee for their services in representing said unknown heirs.",
"That on the hearing of said application it was proven by uncontradicted evidence that their said services were reasonably worth the sum of $3000, but the court refused to allow them said sum, and only allowed them $2000 for their said services, to which ruling of the court they, for the unknown heirs, excepted in open court and were preparing to prosecute an appeal to the Court of Civil Appeals having jurisdiction thereof, relying for error on the sole ground and on no other that the sum allowed them by the court was not reasonable compensation for their said services in and about said matter.",
"That in the judgment of said Steger Steger at the time the evidence was sufficient to sustain said judgment against said unknown heirs, and they did not intend nor propose to appeal for said unknown heirs on any other ground save that the amount so allowed Steger Steger by the court for their services as such attorneys was not reasonable compensation for their said services so rendered in said cause for said unknown heirs. That on or about said day, to wit, January 25, 1896, said Hume, for the purpose of inducing said Stegers to abandon their said appeal, and in consideration of their abandoning their said appeal for said unknown heirs, proposed and offered to this plaintiff and said Thos.",
"P. Steger, to pay them the sum of $1000; that this plaintiff and said Thos. P. Steger accepted said proposition and offer, and then and there agreed to abandon said appeal for the sole question of testing the reasonableness of said allowance, and not to prosecute same in consideration of said promise to them by said Hume to pay them said sum of $1000, and did abandon said appeal, whereby said Hume became liable and promised to pay this plaintiff and said Thos.",
"P. Steger said sum of $1000 then and there. That though often demanded, the said Hume refused to pay the same or any part thereof, except as hereinafter set forth.\" To this petition a general demurrer was sustained by the court, and no amendment being filed, the suit was dismissed. A majority of the court have concluded that the action of the lower court in dismissing said suit was proper, for the reason that the contract set out in the petition was void as against public policy.",
"The petition shows that in the administration of an estate the plaintiffs were appointed and acted as attorneys for certain unknown heirs. We presume that their appointment was made under Rev. Stats., art. 2161, and if so, their compensation would be regulated by Rev. Stats., art. 2189. Whether we are correct or not in this they were, at any rate, appointed *Page 403 by the court to represent the interests of such unknown heirs, and were allowed by the court the sum of $2000 as their fees. They claim $3000 and gave notice of appeal on behalf of their clients. Appellee Hume represented the principal part of the estate and wanted the litigation ended. He therefore agreed with said attorneys to pay them $1000, the additional amount for which they proposed to contend on appeal, in order to induce them to abandon said appeal. The contention of appellant is that because said attorneys only intended to prosecute said appeal in order to assert their right to said additional $1000, that the contract involved no surrender of any rights of their clients, and was therefore valid. It is, of course, conceded that a contract to pay the attorney of an adverse party to do something or refrain from doing something that will affect the interest of his client is illegal and void.",
"Especially would this be true where the attorney was not acting in his ordinary capacity, but under special appointment of the court to represent interests of clients who were unknown, and with whom, of course, he could not communicate. These principles are not disputed. The only question is their application to the facts of this case. We think it clear that they apply. The right of appeal is a valuable right belonging to the unsuccessful party in a law suit. Whether the appeal would be successful or not, it is deemed valuable to such an extent that it will constitute a good consideration for a contract. 6 Am. and Eng.",
"Enc. of Law, 747, and cases cited under note 5. In this case it would have at least delayed the final judgment for some time and afforded a longer period within which such unknown heirs might have appeared and established their existence and their interest in the estate. It was, at any rate, a right guaranteed them under the law. It could be exercised by the attorneys appointed by the court (Russell's Heirs v. Randolph, 1 Tex. 460 [1 Tex. 460]); and as they alone could exercise the right, their determination as to whether an appeal should be taken was final. This was a right belonging to the unknown heirs, and whatever may have been the purpose of the attorneys, it is apparent that the principal purpose on the part of the appellee was to extinguish that right and make his judgment final.",
"When the appeal was abandoned it would, of course, leave the judgment for $2000 in force; and the promise of Hume to pay $1000 was in effect to grant all that was claimed by the attorneys. His purpose, therefore, in making the agreement could not have been to compromise their claim, because he agreed to pay them all they were claiming; but it must have been to extinguish the right of appeal in their clients. At any rate, the effect of the contract was to deprive the unknown heirs of their right of appeal and to make the judgment against them final sooner than it would otherwise have become so. There can be no doubt that a contract to pay an officer of court a sum of money to influence his conduct with reference to his official duties is against public policy. The attorneys in this case were officers of the *Page 404 court, charged with a responsible duty, the duty of conducting this litigation in the interest of the parties they were appointed to represent.",
"As a part of this duty, when judgment had been rendered, it devolved upon them to determine whether they would or would not prosecute an appeal. In the determination of this question, as every other question which arose in the course of the litigation, it was their duty to act with a view solely to the interest of their clients. Their clients were entitled to their loyal and disinterested opinion, untrammeled by any outside considerations. Any agreement, especially on the part of the adverse party, to pay them a sum of money to determine this question one way or the other, was an unlawful agreement. It may have been that the only object of the attorneys in making the agreement was to settle their own controversy, but in the nature of the case they could not settle this without at the same time settling the other question which they had to determine for their clients, that is, whether or not they would prosecute an appeal; and the latter question is evidently the one which Hume was anxious to have determined.",
"It may also be true that the unknown heirs lost nothing by the arrangement, and no injury was done; but it is not a question of actual injury. The tendency of such transactions determines their character, and we are clearly of the opinion that the contract in question was against public policy as tending to interfere with the proper and unbiased discharge of duty on the part of the officers of the court. Affirmed. DISSENTING OPINION."
]
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WINKELSTEIN, J.S.C. Plaintiff is a physician specializing in oncology who, between September 1995 and March 1996, rendered chemotherapy to defendant Magdi Abdel Wahed (Abdel Wahed). Prior to treatment, on August 17, 1995, Abdel Wahed purchased a health insurance plan from the trustee of the Business and Professional Service Industry Trust which was underwritten and administered by defendant Mega Life and Health Insurance (Mega Life). Plaintiffs total bill for services rendered to Abdel Wahed was $43,-909.50. Mega Life paid $12,028.50. Plaintiff has filed this lawsuit seeking the balance due against both Abdel Wahed and Mega Life. *388The matter now comes before me on a motion by defendant Mega Life for summary judgment.1 Defendant Mega Life takes the position that plaintiff does not have standing to bring suit under defendant Abdel Wahed’s insurance contract and, alternatively, even if plaintiff does have standing, that defendant Mega Life has complied with the provisions of the insurance contract. Under the terms of the insurance contract purchased by Abdel Wahed he received basic hospital medical coverage with a $1,000 deductible, with the plan paying 80% of covered hospital charges up to a maximum of $22,500 and 80% of other charges related to surgery. Abdel Wahed also purchased certain options, including coverage for outpatient radiation and chemotherapy for cancer treatment with a maximum daily benefit of $1,000 and a maximum lifetime benefit of $100,000. Payments for doctor’s visits were limited to $60 per visit. Abdel Wahed did not purchase continued care, maternity or vision benefits. The benefit section of the policy provided that covered expenses would be the lesser of (1) the limits set forth for that type expense under the certificate schedule or (2) the usual and customary charge for the medical service or supplies. Abdel Wahed began receiving treatment for gastric lymphoma on September 30,1995. On October 23,1995, Mega Life received notice that Abdel Wahed was undergoing the treatment by way of a telephone call from an unidentified person in plaintiffs medical offices. During that call plaintiff was advised that Mega Life could not verify benefits without being provided with a diagnosis or chief complaint. No verification of benefits was provided. Abdel Wahed thereafter executed an assignment of his right to receive the insurance benefits to plaintiff, who was to be paid directly by Mega Life. When the bills were received by Mega Life they were paid pursuant to the policy. Excluded from payment were charges exceeding the $1,000 daily maximum, the *389$60 per visit maximum, the one doctor visit per day limitation, as well as all of the deductibles and copayments. Payments were also limited to the usual and customary charges as determined by Mega Life. Plaintiff argues that as Abdel Wahed’s assignee he has standing to bring this claim for unpaid medical services directly against Mega Life. He further argues that his charges were reasonable and should be paid. Let me first address the issue of plaintiffs standing to bring this lawsuit. The question of whether a doctor has the right to sue for a patient’s health insurance benefits on behalf of the patient has never been addressed in this jurisdiction. Generally, one may not ordinarily claim standing to assert the rights of a third party under a contract. See Jersey Shore Med. Center-Fitkin Hosp. v. Estate of Sidney Baum, 84 N.J. 137, 144, 417 A.2d 1003 (1980). Although persons may enter into a contract for the benefit of others, one who is not a party to a contract may not sue to enforce it merely because he or she happens to receive a benefit from it. See Model Jury Charges 4.18 (citing Brooklawn v. Brooklawn Hous. Corp., 124 N.J.L. 73, 11 A.2d 83 (E. & A.1940) and First Nat’l State Bank v. Carlyle House, Inc., 102 N.J.Super. 300, 246 A.2d 22 (Ch.Div.1968), aff'd, 107 N.J.Super. 389, 258 A.2d 545 (App.Div.1969), certif. denied, 55 N.J. 316, 261 A.2d 359 (1970)). Rather, for a third party to enforce a contract, it must clearly appear that the contract was made by the parties with the intention to benefit the third party and that the parties to the contract intended that he or she receive a benefit enforceable in court. Id. “The contractual intent to recognize a right to performance in the third person is the key.” Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253, 259, 447 A.2d 906 (1982). “If that intent does not exist, then the third person is only an incidental beneficiary, having no contractual standing.” Ibid. However, an individual may have rights in a contract which have been assigned to him. See, e.g., Berkowitz v. Haigood, 256 N.J.Super. 342, 346, 606 A.2d 1157 (Law Div.1992). To claim *390such rights, the assignment must be valid. Ibid. “A valid assignment must contain clear evidence of the intent to transfer the person’s rights and ‘the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.’ ” Ibid, (citing Williston, Contracts § 404 at 4 (3 ed. 1957); Transcon Lines v. Lipo Chem., Inc., 193 N.J.Super. 456, 467, 474 A.2d 1108 (D.Ct.1983)). To be effective, the assignment must be clear and unequivocal and must be noticed to the obligor. Berkowitz, supra, 256 N.J.Super. at 346, 606 A.2d 1157 (citing Costanzo v. Costanzo, 248 N.J.Super. 116, 590 A.2d 268 (Law Div.1991)). Once properly notified of the assignment, the obligor has the duty to pay the assignee, rather than the assignor. Ibid. (citing Russell v. Fred G. Pohl, Co., 7 N.J. 32, 40, 80 A.2d 191 (1951); Spilka v. South America Mgrs., Inc., 54 N.J. 452, 462, 255 A.2d 755 (1969); Burke v. Hoffman, 28 N.J. 467, 473-74, 147 A.2d 44 (1958)). Although an issue of first impression in New Jersey, in New York it has been held that a patient may assign his or her rights under an insurance contract to a physician who renders treatment upon the patient. See, e.g., Pro Cardiaco v. Trussell, 863 F.Supp. 135, 138 (S.D.N.Y.1994) (holding that affidavit under which affiant identified himself as sole heir of patient, indicated that hospital was authorized representative of patient with respect to insurance claim, and directed that payment of insurance proceeds be made only to hospital, constituted a valid assignment of benefits); Gingold v. State Farm Ins. Co., 168 Misc.2d 62, 642 N.Y.S.2d 812 (Queens Cty.1996) (finding that patient’s authorization for doctor to receive direct payments from insurance company amounted to assignment of rights through which doctor had standing to bring suit to recover payment under “no-fault” provisions of insurance policy). The New York case law further indicates that, even when a document only designates that money be paid over to a third party, an assignment is effectuated so long as the obligor receives notice and is directed to pay the third party from specific funds owed an assignor. See Trussell, supra, 863 F.Supp. at 138 (citations omitted); Gingold, supra, 642 N.Y.S.2d at 813. *391Here, as in Trussell, supra, and Gingold, supra, I find that plaintiff does have standing to assert a claim for payments based on the authorization from Abdel Wahed to permit plaintiff to accept payments directly from Mega Life on his behalf. No more than that authorization is needed. There is no claim made in this case that Abdel Wahed ever revoked or intended to revoke consent for plaintiff to receive payments. Further, notice is not an issue, as payments were in fact mailed directly to plaintiff from Mega Life on Abdel Wahed’s behalf for medical services rendered to Abdel Wahed. There is no reason to treat a doctor, as the assignee under the patients health insurance policy, different from any other assignee. Once the assignment is made, a doctor has the right to enforce the patient’s contract as a third party beneficiary. There can be little doubt that when a patient obtains health insurance it is intended by both the patient and the health insurance carrier that, in most cases, the claims will be paid directly to the treating physician. Moreover, when a patient affirmatively agrees that the money should be paid directly to the physician, there can be no doubt that the contract between the patient and the insurance company is intended to benefit the physician. That is precisely what occurred here. When Abdel Wahed executed an authorization allowing Mega Life to pay plaintiff directly, plaintiff obtained all of Abdel Wahed’s rights to collect the benefits under the policy. Plaintiff therefore has standing to proceed with this suit. Having determined that plaintiff has standing, the next question to be addressed is whether Mega Life has complied with its obligations under the contract. I am satisfied that it has. When plaintiff became Abdel Wahed’s assignee under the terms of the contract, his rights could rise no higher than Abdel Wahed’s. See Abeles v. Adams Eng’g. Co., 64 N.J.Super. 167, 187, 165 A.2d 555 (App.Div.1960) (stating that an assignee can have no greater rights than an assignor), opinion modified, 35 N.J. 411, 173 A.2d 246 (1961); Brooklawn v. Brooklawn Hous. Corp., 129 N.J.L. 77, 28 A.2d 199 (E. & A.1942) (stating same). Therefore, all defenses *392available against Abdel Wahed are available against his assignee, plaintiff Tirgan. See Abeles, supra, 64 N.J.Super. at 187, 165 A.2d 555. Mega Life made all of the payments it was obligated to make under the terms of the insurance contract. The fact that the payments were less than the physician’s charges does not permit plaintiff to seek benefits under the insurance policy which were not purchased by Abdel Wahed. Abdel Wahed purchased a policy with a number of limitations in benefits. Payment for chemotherapy treatment was limited to $1,000 a day, doctor’s visits could not exceed $60 per day, all charges were subject to the usual and customary charges in the marketplace, and there were deductibles and copayments. Although plaintiff argues in general terms that the payments made were less than what would normally be needed to cover the cost of chemotherapy treatment, Mega Life need not pay other than what was bargained for under the terms of the insurance contract. Abdel Wahed could have purchased a policy with additional benefits, but did not do so. Plaintiff is therefore limited under the terms of the policy to the payment schedule set forth therein for the various services rendered. Plaintiff takes issue with the usual and customary charges established by Mega Life. However, plaintiff has submitted no evidence to support his allegations that Mega Life’s payment limitations were unreasonable. The only evidence before the court as to the usual and customary charges are those established by Mega Life. The question of whether there exists a genuine issue of material fact precluding summary judgment requires the motion judge to consider the competent evidence submitted, viewed in the light most favorable to the nonmoving party, and to determine whether such materials are sufficient to permit a rational fact finder to resolve the disputed issue in favor of the nonmoving party. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995). Plaintiff has submitted no evidence establishing a factual dispute over what charges were usual and customary for the chemotherapy treatment adminis*393tered to Abdel Wahed. The fact that plaintiffs charges were higher then those approved by Mega Life does not in itself create such a disputed issue of fact as is necessary to defeat a summary judgment motion. I am satisfied that the proofs are so one sided that Mega Life must prevail as a matter of law. Summary judgment is therefore granted dismissing plaintiffs claim against Mega Life.
This decision is a more complete explanation of the court’s decision from the bench on May 16, 1997. | 07-25-2022 | [
"WINKELSTEIN, J.S.C. Plaintiff is a physician specializing in oncology who, between September 1995 and March 1996, rendered chemotherapy to defendant Magdi Abdel Wahed (Abdel Wahed). Prior to treatment, on August 17, 1995, Abdel Wahed purchased a health insurance plan from the trustee of the Business and Professional Service Industry Trust which was underwritten and administered by defendant Mega Life and Health Insurance (Mega Life). Plaintiffs total bill for services rendered to Abdel Wahed was $43,-909.50. Mega Life paid $12,028.50. Plaintiff has filed this lawsuit seeking the balance due against both Abdel Wahed and Mega Life. *388The matter now comes before me on a motion by defendant Mega Life for summary judgment.1 Defendant Mega Life takes the position that plaintiff does not have standing to bring suit under defendant Abdel Wahed’s insurance contract and, alternatively, even if plaintiff does have standing, that defendant Mega Life has complied with the provisions of the insurance contract.",
"Under the terms of the insurance contract purchased by Abdel Wahed he received basic hospital medical coverage with a $1,000 deductible, with the plan paying 80% of covered hospital charges up to a maximum of $22,500 and 80% of other charges related to surgery. Abdel Wahed also purchased certain options, including coverage for outpatient radiation and chemotherapy for cancer treatment with a maximum daily benefit of $1,000 and a maximum lifetime benefit of $100,000. Payments for doctor’s visits were limited to $60 per visit.",
"Abdel Wahed did not purchase continued care, maternity or vision benefits. The benefit section of the policy provided that covered expenses would be the lesser of (1) the limits set forth for that type expense under the certificate schedule or (2) the usual and customary charge for the medical service or supplies. Abdel Wahed began receiving treatment for gastric lymphoma on September 30,1995. On October 23,1995, Mega Life received notice that Abdel Wahed was undergoing the treatment by way of a telephone call from an unidentified person in plaintiffs medical offices.",
"During that call plaintiff was advised that Mega Life could not verify benefits without being provided with a diagnosis or chief complaint. No verification of benefits was provided. Abdel Wahed thereafter executed an assignment of his right to receive the insurance benefits to plaintiff, who was to be paid directly by Mega Life. When the bills were received by Mega Life they were paid pursuant to the policy. Excluded from payment were charges exceeding the $1,000 daily maximum, the *389$60 per visit maximum, the one doctor visit per day limitation, as well as all of the deductibles and copayments. Payments were also limited to the usual and customary charges as determined by Mega Life. Plaintiff argues that as Abdel Wahed’s assignee he has standing to bring this claim for unpaid medical services directly against Mega Life. He further argues that his charges were reasonable and should be paid.",
"Let me first address the issue of plaintiffs standing to bring this lawsuit. The question of whether a doctor has the right to sue for a patient’s health insurance benefits on behalf of the patient has never been addressed in this jurisdiction. Generally, one may not ordinarily claim standing to assert the rights of a third party under a contract. See Jersey Shore Med. Center-Fitkin Hosp. v. Estate of Sidney Baum, 84 N.J. 137, 144, 417 A.2d 1003 (1980). Although persons may enter into a contract for the benefit of others, one who is not a party to a contract may not sue to enforce it merely because he or she happens to receive a benefit from it. See Model Jury Charges 4.18 (citing Brooklawn v. Brooklawn Hous.",
"Corp., 124 N.J.L. 73, 11 A.2d 83 (E. & A.1940) and First Nat’l State Bank v. Carlyle House, Inc., 102 N.J.Super. 300, 246 A.2d 22 (Ch.Div.1968), aff'd, 107 N.J.Super. 389, 258 A.2d 545 (App.Div.1969), certif. denied, 55 N.J. 316, 261 A.2d 359 (1970)). Rather, for a third party to enforce a contract, it must clearly appear that the contract was made by the parties with the intention to benefit the third party and that the parties to the contract intended that he or she receive a benefit enforceable in court. Id. “The contractual intent to recognize a right to performance in the third person is the key.” Broadway Maint.",
"Corp. v. Rutgers, State Univ., 90 N.J. 253, 259, 447 A.2d 906 (1982). “If that intent does not exist, then the third person is only an incidental beneficiary, having no contractual standing.” Ibid. However, an individual may have rights in a contract which have been assigned to him. See, e.g., Berkowitz v. Haigood, 256 N.J.Super. 342, 346, 606 A.2d 1157 (Law Div.1992). To claim *390such rights, the assignment must be valid. Ibid. “A valid assignment must contain clear evidence of the intent to transfer the person’s rights and ‘the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.’ ” Ibid, (citing Williston, Contracts § 404 at 4 (3 ed. 1957); Transcon Lines v. Lipo Chem., Inc., 193 N.J.Super.",
"456, 467, 474 A.2d 1108 (D.Ct.1983)). To be effective, the assignment must be clear and unequivocal and must be noticed to the obligor. Berkowitz, supra, 256 N.J.Super. at 346, 606 A.2d 1157 (citing Costanzo v. Costanzo, 248 N.J.Super. 116, 590 A.2d 268 (Law Div.1991)). Once properly notified of the assignment, the obligor has the duty to pay the assignee, rather than the assignor. Ibid. (citing Russell v. Fred G. Pohl, Co., 7 N.J. 32, 40, 80 A.2d 191 (1951); Spilka v. South America Mgrs., Inc., 54 N.J. 452, 462, 255 A.2d 755 (1969); Burke v. Hoffman, 28 N.J. 467, 473-74, 147 A.2d 44 (1958)). Although an issue of first impression in New Jersey, in New York it has been held that a patient may assign his or her rights under an insurance contract to a physician who renders treatment upon the patient. See, e.g., Pro Cardiaco v. Trussell, 863 F.Supp. 135, 138 (S.D.N.Y.1994) (holding that affidavit under which affiant identified himself as sole heir of patient, indicated that hospital was authorized representative of patient with respect to insurance claim, and directed that payment of insurance proceeds be made only to hospital, constituted a valid assignment of benefits); Gingold v. State Farm Ins. Co., 168 Misc.2d 62, 642 N.Y.S.2d 812 (Queens Cty.1996) (finding that patient’s authorization for doctor to receive direct payments from insurance company amounted to assignment of rights through which doctor had standing to bring suit to recover payment under “no-fault” provisions of insurance policy).",
"The New York case law further indicates that, even when a document only designates that money be paid over to a third party, an assignment is effectuated so long as the obligor receives notice and is directed to pay the third party from specific funds owed an assignor. See Trussell, supra, 863 F.Supp. at 138 (citations omitted); Gingold, supra, 642 N.Y.S.2d at 813. *391Here, as in Trussell, supra, and Gingold, supra, I find that plaintiff does have standing to assert a claim for payments based on the authorization from Abdel Wahed to permit plaintiff to accept payments directly from Mega Life on his behalf. No more than that authorization is needed.",
"There is no claim made in this case that Abdel Wahed ever revoked or intended to revoke consent for plaintiff to receive payments. Further, notice is not an issue, as payments were in fact mailed directly to plaintiff from Mega Life on Abdel Wahed’s behalf for medical services rendered to Abdel Wahed. There is no reason to treat a doctor, as the assignee under the patients health insurance policy, different from any other assignee. Once the assignment is made, a doctor has the right to enforce the patient’s contract as a third party beneficiary.",
"There can be little doubt that when a patient obtains health insurance it is intended by both the patient and the health insurance carrier that, in most cases, the claims will be paid directly to the treating physician. Moreover, when a patient affirmatively agrees that the money should be paid directly to the physician, there can be no doubt that the contract between the patient and the insurance company is intended to benefit the physician. That is precisely what occurred here. When Abdel Wahed executed an authorization allowing Mega Life to pay plaintiff directly, plaintiff obtained all of Abdel Wahed’s rights to collect the benefits under the policy. Plaintiff therefore has standing to proceed with this suit. Having determined that plaintiff has standing, the next question to be addressed is whether Mega Life has complied with its obligations under the contract.",
"I am satisfied that it has. When plaintiff became Abdel Wahed’s assignee under the terms of the contract, his rights could rise no higher than Abdel Wahed’s. See Abeles v. Adams Eng’g. Co., 64 N.J.Super. 167, 187, 165 A.2d 555 (App.Div.1960) (stating that an assignee can have no greater rights than an assignor), opinion modified, 35 N.J. 411, 173 A.2d 246 (1961); Brooklawn v. Brooklawn Hous. Corp., 129 N.J.L. 77, 28 A.2d 199 (E. & A.1942) (stating same). Therefore, all defenses *392available against Abdel Wahed are available against his assignee, plaintiff Tirgan. See Abeles, supra, 64 N.J.Super. at 187, 165 A.2d 555. Mega Life made all of the payments it was obligated to make under the terms of the insurance contract. The fact that the payments were less than the physician’s charges does not permit plaintiff to seek benefits under the insurance policy which were not purchased by Abdel Wahed.",
"Abdel Wahed purchased a policy with a number of limitations in benefits. Payment for chemotherapy treatment was limited to $1,000 a day, doctor’s visits could not exceed $60 per day, all charges were subject to the usual and customary charges in the marketplace, and there were deductibles and copayments. Although plaintiff argues in general terms that the payments made were less than what would normally be needed to cover the cost of chemotherapy treatment, Mega Life need not pay other than what was bargained for under the terms of the insurance contract. Abdel Wahed could have purchased a policy with additional benefits, but did not do so.",
"Plaintiff is therefore limited under the terms of the policy to the payment schedule set forth therein for the various services rendered. Plaintiff takes issue with the usual and customary charges established by Mega Life. However, plaintiff has submitted no evidence to support his allegations that Mega Life’s payment limitations were unreasonable. The only evidence before the court as to the usual and customary charges are those established by Mega Life. The question of whether there exists a genuine issue of material fact precluding summary judgment requires the motion judge to consider the competent evidence submitted, viewed in the light most favorable to the nonmoving party, and to determine whether such materials are sufficient to permit a rational fact finder to resolve the disputed issue in favor of the nonmoving party.",
"Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995). Plaintiff has submitted no evidence establishing a factual dispute over what charges were usual and customary for the chemotherapy treatment adminis*393tered to Abdel Wahed. The fact that plaintiffs charges were higher then those approved by Mega Life does not in itself create such a disputed issue of fact as is necessary to defeat a summary judgment motion. I am satisfied that the proofs are so one sided that Mega Life must prevail as a matter of law. Summary judgment is therefore granted dismissing plaintiffs claim against Mega Life. This decision is a more complete explanation of the court’s decision from the bench on May 16, 1997."
]
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5 Cal. App. 4th 439 (1992) 6 Cal. Rptr. 2d 800 THE PEOPLE, Plaintiff and Appellant, v. STEVEN WIMBERLY, Defendant and Respondent. Docket No. B057574. Court of Appeals of California, Second District, Division Seven. April 9, 1992. *441 COUNSEL Ira Reiner, District Attorney, Donald J. Kaplan and Eugene D. Tavris, Deputy District Attorneys, for Plaintiff and Appellant. No appearance for Defendant and Respondent. *442 OPINION WOODS (Fred), J. Dispositive of this appeal are two related Proposition 115[1] preliminary hearing issues: (1) was the officer who testified to hearsay statements qualified to do so and (2) were those multiple hearsay statements admissible pursuant to Penal Code[2] section 872, subdivision (b)? We conclude that under Whitman v. Superior Court (1991) 54 Cal. 3d 1063 [2 Cal. Rptr. 2d 160, 820 P.2d 262] the officer was section 872, subdivision (b) qualified but the multiple hearsay statements he testified to were inadmissible. Accordingly, we affirm the order (§ 995) setting aside the information.
FACTUAL AND PROCEDURAL BACKGROUND The district attorney charged respondent with committing a July 9, 1990, residential burglary (§ 459; count I), and a contemporaneous grand theft (§ 487, subd. 1; count II). At the October 5, 1990, preliminary hearing[3] the district attorney called a single witness, Detective Osman, a 12-year City of Monterey Park police officer. Over objection,[4] Detective Osman testified that the day after the burglary he did "a follow-up investigation," namely, he talked to the victim, read the crime report, and talked to its author, Officer Yahn. Detective Osman further testified to the victim's statements, his testimony apparently based upon his conversation with the victim rather than upon Officer Yahn's report. This part of Detective Osman's testimony established the corpus of both charged offenses but did not link respondent to either crime. To establish that link the district attorney elicited from Detective Osman the statements of a Mr. Schiro, someone Detective Osman had not spoken to. Mr. Schiro was the manager of the apartment complex in which the victim lived. Mr. Schiro had spoken to Officer Yahn and Officer Yahn included Mr. Schiro's statements in his crime report. Detective Osman testified[5] that "according to Officer Yahn, Mr. Schiro stated," in substance, that on the day of the burglary respondent asked to be let into the victim's apartment and that he, Mr. Schiro, unlocked the door for respondent because respondent was the victim's brother. *443 The magistrate held respondent to answer on both counts. In superior court, respondent's section 995 motion to set aside the information was granted.
DISCUSSION (1) In reviewing the superior court order granting respondent's section 995 motion, we are concerned with the correctness of, not the reasons for, the order. (People v. Laiwa (1983) 34 Cal. 3d 711, 718 [195 Cal. Rptr. 503, 669 P.2d 1278].) If the magistrate erred in permitting Detective Osman to testify to either the statements of the victim or the statements of Mr. Schiro, then the order setting aside the information was correct and must be affirmed. The magistrate relied upon section 872, subdivision (b), enacted as part of Proposition 115. This section provides: "Notwithstanding Section 1200 of the Evidence Code [the hearsay rule], the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. Any law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings." By its terms, this statute creates a special hearsay exception applicable only at preliminary hearings. To determine whether or not hearsay statements were properly admitted under section 872, subdivision (b), two questions must be addressed: first, was the testifying officer qualified; second, if qualified, were the hearsay statements admissible?
1. Was Detective Osman qualified? (2) Because Detective Osman had been a City of Monterey Park police officer for 12 years he satisfied the threshold requirement of section 872, subdivision (b): "Any law enforcement officer testifying as to hearsay statements shall ... have five years of law enforcement experience...." As Whitman makes clear, five years' law enforcement experience is a necessary but insufficient qualification. Officer Alexander, the testifying officer in Whitman, had eight years' experience but was unqualified. But Whitman makes less clear just what, in addition to five years' experience, constitutes section 872, subdivision (b) officer qualification. *444 Officer Alexander illustrates what constitutes nonqualification. "Proposition 115 does not authorize a finding of probable cause based on the testimony of a noninvestigating officer or `reader' merely reciting the police report of an investigating officer." (Whitman v. Superior Court, supra, 54 Cal. 3d 1063, 1072.) Officer Alexander was unqualified, Whitman states, because he was merely a "reader," an officer who had no involvement with the case before the preliminary hearing and whose information came only from the report he "read." Officer Alexander, in Whitman terminology, was a "noninvestigating officer." Whitman further states: "We believe the probable intent of the framers of the measure was to allow a properly qualified investigating officer to relate out-of-court statements by crime victims or witnesses, including other law enforcement personnel, without requiring the victims' or witnesses' presence in court. The testifying officer, however, must not be a mere reader but must have sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement." (54 Cal.3d at pp. 1072-1073. Italics added.) Thus, to be qualified, the testifying officer must be an investigating officer, "a properly qualified investigating officer." But what is an "investigating officer"? Whitman does not define the term and we are unaware of any accepted, useful definition. Certainly, to merely say it is an officer who investigates is circular and unhelpful. In practice, the term has almost as many meanings as there are law enforcement agencies which use it. An investigating officer may be a Colombo-like homicide detective who studies the crime scene, personally and repeatedly interrogates witnesses and possible witnesses, conducts lineups, questions suspects, requests and coordinates scientific studies, and gathers sufficient admissible evidence for a prosecution. But an investigating officer may also be little more than a bureaucratic paper shuffler, a veteran officer who collects police reports crime report, arrest report, evidence report, perhaps a follow-up report determines if they are sufficient for prosecution, and if so, presents them to the prosecutor. Although not defining "investigating officer" Whitman does provide an example of one. The officer who saw the crime being committed (driving under the influence of alcohol and/or drugs) and arrested its perpetrator is characterized as "an investigating officer." (54 Cal.3d at p. 1072.) Whitman *445 further suggests that one may be an investigating officer by having "sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement." (Id. at pp. 1072-1073. Italics added.) We conclude that Detective Osman satisfied the Whitman requirements. He was not a mere "reader." In a relatively simple burglary case he personally interviewed the victim, the officer who took the crime report (Officer Yahn), and the defendant's parole officer. We hold that Officer Osman was a "properly qualified investigating officer."
2. Was Detective Osman's testimony relating the victim's statements properly admitted? (3) Detective Osman testified that he had personally talked to the victim the day after the burglary. The victim, Detective Osman testified, stated that on July 9, 1990, he left his locked residence at 6 a.m. and upon returning at 4:15 p.m. discovered about $3,000 worth of jewelry missing. He had not given permission to anyone to enter his house or take his property. We are satisfied that these victim-hearsay statements were properly admitted by the magistrate. Detective Osman, having personally interviewed the victim, had "sufficient knowledge of ... the circumstances under which the ... statement[s] [were] made so as to meaningfully assist the magistrate in assessing the reliability of the statements." (54 Cal.3d at pp. 1072-1073.) In fact, as is common with burglary victims, the magistrate required little if any assistance to assess the reliability of the victim-statements. Defense counsel, who cross-examined Detective Osman on other aspects of his testimony, asked no questions about the victim-statements.
3. Was Detective Osman's testimony relating Mr. Schiro's statements properly admitted? Detective Osman testified to what Officer Yahn stated (in his report) that Mr. Schiro stated. Unlike his victim-statement testimony, this testimony was double hearsay. Detective Osman, not having spoken to Mr. Schiro, was not "capable of using his ... experience and expertise to assess the circumstances under which the statement[s] [were] made and to accurately describe those circumstances to the magistrate so as to increase the reliability of the underlying evidence." (54 Cal.3d at p. 1074.) (4) Although Whitman stops just short of flatly prohibiting section 872, subdivision (b) double hearsay, we believe such prohibition is unavoidable. *446 Double hearsay, like "reader" testimony, has "inherent" uncertainties. (54 Cal.3d at pp. 1074-1075.) The testifying officer, who has not interviewed the declarant, will inevitably be "unable to answer potentially significant questions regarding the ... circumstances" (id. at p. 1074) under which the statement was made. For example, Detective Osman would have been unable to answer questions concerning Mr. Schiro's demeanor, certainty, apparent intelligence, possible bias, suggestibility, etc. Yet these "potentially significant" matters are the very ones which require the special witness qualifications specified in section 872, subdivision (b) and elaborated by Whitman. Moreover, a rule which would prohibit an officer who heard statements from testifying to them, such as one-year Officer Yahn, but permit an officer who did not hear them, to testify to them, such as Detective Osman, is, at best, constitutionally suspect. As Whitman observed: "Moreover, to allow testimony by noninvestigating officers or readers would seemingly sanction a form of double or multiple hearsay beyond the contemplation of the framers of, and voters for, Proposition 115. (See Evid. Code, § 1201 [multiple hearsay admissible only if each hearsay statement admissible under hearsay rule exception].) Although such multiple hearsay was not present in this case, we doubt that Proposition 115 was intended to sanction a procedure whereby a noninvestigating officer, lacking any personal knowledge of the matter, nonetheless would be permitted to relate not only what the investigating officer told him, but also what the other witnesses told the investigating officer. It is noteworthy that although Proposition 115 created an exception to the basic hearsay rule contained in Evidence Code section 1200 (see new Pen. Code, § 872, subd. (b)), the measure did not purport to create a similar exception for the multiple hearsay rule of Evidence Code section 1201. (5) "In addition, an interpretation of Proposition 115 that would allow `reader' or multiple hearsay testimony would raise constitutional questions that we can and should avoid by limiting admissible hearsay testimony to testimony by qualified investigative officers. (See, e.g., People v. Smith (1983) 34 Cal. 3d 251, 259 [193 Cal. Rptr. 692, 667 P.2d 149] [construing Prop. 8, `The Victims' Bill of Rights' initiative measure, to avoid constitutional doubts].) As discussed below, we believe that the latter, more limited, form of hearsay evidence satisfies federal requirements of reliability (see Ohio v. Roberts (1980) 448 U.S. 56, 63-65 [65 L. Ed. 2d 597, 605-607, 100 S. Ct. 2531], and thus properly may be admitted at preliminary hearings despite the defendant's inability to confront and cross-examine the declarant *447 witness or victim. But substantial additional objections to the reliability of the evidence might arise if multiple hearsay were involved, and the defendant were also deprived of the opportunity to meaningfully cross-examine the testifying officer regarding the circumstances under which the out-of-court statement was made." (54 Cal.3d at p. 1074. Original italics.) (6) We hold that because Detective Osman's testimony relating Mr. Schiro's statements was double hearsay, it was inadmissible.[6] Since it was only that testimony which linked the defendant to the crimes, the error was prejudicial.
DISPOSITION The order setting aside the information is affirmed. Lillie, P.J., and Johnson, J., concurred. A petition for a rehearing was denied April 24, 1992, and appellant's petition for review by the Supreme Court was denied June 17, 1992. NOTES [1] An initiative measure adopted June 5, 1990. [2] Unless otherwise noted, all statutory references are to the Penal Code. [3] The record elliptically refers to an earlier, not completed, preliminary hearing. It is not pertinent to this appeal. [4] Appellant makes no claim of inadequate "timely and specific" hearsay objections (Evid. Code, § 353) by respondent. Accordingly, we treat respondent's objections as adequate. [5] It is unclear whether Detective Osman's testimony was based upon Officer Yahn's report, his conversation with Officer Yahn, or both. [6] Cf. Whitman v. Superior Court, supra, 54 Cal. 3d 1063, 1085, footnote 2 (conc. opn. of Mosk, J.). See Montez v. Superior Court (1992) 4 Cal. App. 4th 577 [5 Cal. Rptr. 2d 723]; but see People v. Retamoza (1992) 3 Cal. App. 4th 1304 [5 Cal. Rptr. 2d 137]. | 10-30-2013 | [
"5 Cal. App. 4th 439 (1992) 6 Cal. Rptr. 2d 800 THE PEOPLE, Plaintiff and Appellant, v. STEVEN WIMBERLY, Defendant and Respondent. Docket No. B057574. Court of Appeals of California, Second District, Division Seven. April 9, 1992. *441 COUNSEL Ira Reiner, District Attorney, Donald J. Kaplan and Eugene D. Tavris, Deputy District Attorneys, for Plaintiff and Appellant. No appearance for Defendant and Respondent. *442 OPINION WOODS (Fred), J. Dispositive of this appeal are two related Proposition 115[1] preliminary hearing issues: (1) was the officer who testified to hearsay statements qualified to do so and (2) were those multiple hearsay statements admissible pursuant to Penal Code[2] section 872, subdivision (b)?",
"We conclude that under Whitman v. Superior Court (1991) 54 Cal. 3d 1063 [2 Cal. Rptr. 2d 160, 820 P.2d 262] the officer was section 872, subdivision (b) qualified but the multiple hearsay statements he testified to were inadmissible. Accordingly, we affirm the order (§ 995) setting aside the information. FACTUAL AND PROCEDURAL BACKGROUND The district attorney charged respondent with committing a July 9, 1990, residential burglary (§ 459; count I), and a contemporaneous grand theft (§ 487, subd.",
"1; count II). At the October 5, 1990, preliminary hearing[3] the district attorney called a single witness, Detective Osman, a 12-year City of Monterey Park police officer. Over objection,[4] Detective Osman testified that the day after the burglary he did \"a follow-up investigation,\" namely, he talked to the victim, read the crime report, and talked to its author, Officer Yahn. Detective Osman further testified to the victim's statements, his testimony apparently based upon his conversation with the victim rather than upon Officer Yahn's report. This part of Detective Osman's testimony established the corpus of both charged offenses but did not link respondent to either crime. To establish that link the district attorney elicited from Detective Osman the statements of a Mr. Schiro, someone Detective Osman had not spoken to. Mr. Schiro was the manager of the apartment complex in which the victim lived. Mr. Schiro had spoken to Officer Yahn and Officer Yahn included Mr. Schiro's statements in his crime report.",
"Detective Osman testified[5] that \"according to Officer Yahn, Mr. Schiro stated,\" in substance, that on the day of the burglary respondent asked to be let into the victim's apartment and that he, Mr. Schiro, unlocked the door for respondent because respondent was the victim's brother. *443 The magistrate held respondent to answer on both counts. In superior court, respondent's section 995 motion to set aside the information was granted. DISCUSSION (1) In reviewing the superior court order granting respondent's section 995 motion, we are concerned with the correctness of, not the reasons for, the order. (People v. Laiwa (1983) 34 Cal. 3d 711, 718 [195 Cal.",
"Rptr. 503, 669 P.2d 1278].) If the magistrate erred in permitting Detective Osman to testify to either the statements of the victim or the statements of Mr. Schiro, then the order setting aside the information was correct and must be affirmed. The magistrate relied upon section 872, subdivision (b), enacted as part of Proposition 115. This section provides: \"Notwithstanding Section 1200 of the Evidence Code [the hearsay rule], the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. Any law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings.\" By its terms, this statute creates a special hearsay exception applicable only at preliminary hearings. To determine whether or not hearsay statements were properly admitted under section 872, subdivision (b), two questions must be addressed: first, was the testifying officer qualified; second, if qualified, were the hearsay statements admissible? 1. Was Detective Osman qualified? (2) Because Detective Osman had been a City of Monterey Park police officer for 12 years he satisfied the threshold requirement of section 872, subdivision (b): \"Any law enforcement officer testifying as to hearsay statements shall ... have five years of law enforcement experience....\" As Whitman makes clear, five years' law enforcement experience is a necessary but insufficient qualification.",
"Officer Alexander, the testifying officer in Whitman, had eight years' experience but was unqualified. But Whitman makes less clear just what, in addition to five years' experience, constitutes section 872, subdivision (b) officer qualification. *444 Officer Alexander illustrates what constitutes nonqualification. \"Proposition 115 does not authorize a finding of probable cause based on the testimony of a noninvestigating officer or `reader' merely reciting the police report of an investigating officer.\" (Whitman v. Superior Court, supra, 54 Cal. 3d 1063, 1072.) Officer Alexander was unqualified, Whitman states, because he was merely a \"reader,\" an officer who had no involvement with the case before the preliminary hearing and whose information came only from the report he \"read.\" Officer Alexander, in Whitman terminology, was a \"noninvestigating officer.\" Whitman further states: \"We believe the probable intent of the framers of the measure was to allow a properly qualified investigating officer to relate out-of-court statements by crime victims or witnesses, including other law enforcement personnel, without requiring the victims' or witnesses' presence in court. The testifying officer, however, must not be a mere reader but must have sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.\"",
"(54 Cal.3d at pp. 1072-1073. Italics added.) Thus, to be qualified, the testifying officer must be an investigating officer, \"a properly qualified investigating officer.\" But what is an \"investigating officer\"? Whitman does not define the term and we are unaware of any accepted, useful definition. Certainly, to merely say it is an officer who investigates is circular and unhelpful. In practice, the term has almost as many meanings as there are law enforcement agencies which use it. An investigating officer may be a Colombo-like homicide detective who studies the crime scene, personally and repeatedly interrogates witnesses and possible witnesses, conducts lineups, questions suspects, requests and coordinates scientific studies, and gathers sufficient admissible evidence for a prosecution. But an investigating officer may also be little more than a bureaucratic paper shuffler, a veteran officer who collects police reports crime report, arrest report, evidence report, perhaps a follow-up report determines if they are sufficient for prosecution, and if so, presents them to the prosecutor. Although not defining \"investigating officer\" Whitman does provide an example of one.",
"The officer who saw the crime being committed (driving under the influence of alcohol and/or drugs) and arrested its perpetrator is characterized as \"an investigating officer.\" (54 Cal.3d at p. 1072.) Whitman *445 further suggests that one may be an investigating officer by having \"sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.\" (Id. at pp. 1072-1073.",
"Italics added.) We conclude that Detective Osman satisfied the Whitman requirements. He was not a mere \"reader.\" In a relatively simple burglary case he personally interviewed the victim, the officer who took the crime report (Officer Yahn), and the defendant's parole officer. We hold that Officer Osman was a \"properly qualified investigating officer.\" 2. Was Detective Osman's testimony relating the victim's statements properly admitted? (3) Detective Osman testified that he had personally talked to the victim the day after the burglary. The victim, Detective Osman testified, stated that on July 9, 1990, he left his locked residence at 6 a.m. and upon returning at 4:15 p.m. discovered about $3,000 worth of jewelry missing.",
"He had not given permission to anyone to enter his house or take his property. We are satisfied that these victim-hearsay statements were properly admitted by the magistrate. Detective Osman, having personally interviewed the victim, had \"sufficient knowledge of ... the circumstances under which the ... statement[s] [were] made so as to meaningfully assist the magistrate in assessing the reliability of the statements.\" (54 Cal.3d at pp. 1072-1073.) In fact, as is common with burglary victims, the magistrate required little if any assistance to assess the reliability of the victim-statements. Defense counsel, who cross-examined Detective Osman on other aspects of his testimony, asked no questions about the victim-statements. 3. Was Detective Osman's testimony relating Mr. Schiro's statements properly admitted? Detective Osman testified to what Officer Yahn stated (in his report) that Mr. Schiro stated. Unlike his victim-statement testimony, this testimony was double hearsay. Detective Osman, not having spoken to Mr. Schiro, was not \"capable of using his ... experience and expertise to assess the circumstances under which the statement[s] [were] made and to accurately describe those circumstances to the magistrate so as to increase the reliability of the underlying evidence.\"",
"(54 Cal.3d at p. 1074.) (4) Although Whitman stops just short of flatly prohibiting section 872, subdivision (b) double hearsay, we believe such prohibition is unavoidable. *446 Double hearsay, like \"reader\" testimony, has \"inherent\" uncertainties. (54 Cal.3d at pp. 1074-1075.) The testifying officer, who has not interviewed the declarant, will inevitably be \"unable to answer potentially significant questions regarding the ... circumstances\" (id. at p. 1074) under which the statement was made. For example, Detective Osman would have been unable to answer questions concerning Mr. Schiro's demeanor, certainty, apparent intelligence, possible bias, suggestibility, etc. Yet these \"potentially significant\" matters are the very ones which require the special witness qualifications specified in section 872, subdivision (b) and elaborated by Whitman. Moreover, a rule which would prohibit an officer who heard statements from testifying to them, such as one-year Officer Yahn, but permit an officer who did not hear them, to testify to them, such as Detective Osman, is, at best, constitutionally suspect.",
"As Whitman observed: \"Moreover, to allow testimony by noninvestigating officers or readers would seemingly sanction a form of double or multiple hearsay beyond the contemplation of the framers of, and voters for, Proposition 115. (See Evid. Code, § 1201 [multiple hearsay admissible only if each hearsay statement admissible under hearsay rule exception].) Although such multiple hearsay was not present in this case, we doubt that Proposition 115 was intended to sanction a procedure whereby a noninvestigating officer, lacking any personal knowledge of the matter, nonetheless would be permitted to relate not only what the investigating officer told him, but also what the other witnesses told the investigating officer.",
"It is noteworthy that although Proposition 115 created an exception to the basic hearsay rule contained in Evidence Code section 1200 (see new Pen. Code, § 872, subd. (b)), the measure did not purport to create a similar exception for the multiple hearsay rule of Evidence Code section 1201. (5) \"In addition, an interpretation of Proposition 115 that would allow `reader' or multiple hearsay testimony would raise constitutional questions that we can and should avoid by limiting admissible hearsay testimony to testimony by qualified investigative officers. (See, e.g., People v. Smith (1983) 34 Cal. 3d 251, 259 [193 Cal. Rptr. 692, 667 P.2d 149] [construing Prop. 8, `The Victims' Bill of Rights' initiative measure, to avoid constitutional doubts].) As discussed below, we believe that the latter, more limited, form of hearsay evidence satisfies federal requirements of reliability (see Ohio v. Roberts (1980) 448 U.S. 56, 63-65 [65 L. Ed.",
"2d 597, 605-607, 100 S. Ct. 2531], and thus properly may be admitted at preliminary hearings despite the defendant's inability to confront and cross-examine the declarant *447 witness or victim. But substantial additional objections to the reliability of the evidence might arise if multiple hearsay were involved, and the defendant were also deprived of the opportunity to meaningfully cross-examine the testifying officer regarding the circumstances under which the out-of-court statement was made.\" (54 Cal.3d at p. 1074. Original italics.) (6) We hold that because Detective Osman's testimony relating Mr. Schiro's statements was double hearsay, it was inadmissible. [6] Since it was only that testimony which linked the defendant to the crimes, the error was prejudicial. DISPOSITION The order setting aside the information is affirmed. Lillie, P.J., and Johnson, J., concurred. A petition for a rehearing was denied April 24, 1992, and appellant's petition for review by the Supreme Court was denied June 17, 1992.",
"NOTES [1] An initiative measure adopted June 5, 1990. [2] Unless otherwise noted, all statutory references are to the Penal Code. [3] The record elliptically refers to an earlier, not completed, preliminary hearing. It is not pertinent to this appeal. [4] Appellant makes no claim of inadequate \"timely and specific\" hearsay objections (Evid. Code, § 353) by respondent. Accordingly, we treat respondent's objections as adequate. [5] It is unclear whether Detective Osman's testimony was based upon Officer Yahn's report, his conversation with Officer Yahn, or both. [6] Cf. Whitman v. Superior Court, supra, 54 Cal. 3d 1063, 1085, footnote 2 (conc. opn. of Mosk, J.). See Montez v. Superior Court (1992) 4 Cal. App. 4th 577 [5 Cal. Rptr.",
"2d 723]; but see People v. Retamoza (1992) 3 Cal. App. 4th 1304 [5 Cal. Rptr. 2d 137]."
]
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Citation Nr: 0100034
Decision Date: 01/02/01 Archive Date: 01/11/01
DOCKET NO. 00-12 921 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to degenerative joint disease of both hands.
2. Entitlement to degenerative joint disease of both
shoulders.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A.D. Jackson, Counsel
REMAND
The veteran had active duty from July 1956 to April 1962.
The RO in a May 1999 rating action denied service connection
for degenerative joint disease of both shoulders and hands.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the VA with respect to
the duty to assist, and supercedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the RO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Accordingly, this case is REMANDED for the following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
2. If the benefits sought on appeal
remain denied, the appellant and the
appellant's 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 a
summary of the evidence and applicable law
and regulations considered pertinent to
the issue currently on appeal. An
appropriate period of time should be
allowed for response.
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 appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. 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 Supp. 2000) (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.
MARY GALLAGHER
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000). | 01-02-2001 | [
"Citation Nr: 0100034 Decision Date: 01/02/01 Archive Date: 01/11/01 DOCKET NO. 00-12 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to degenerative joint disease of both hands. 2. Entitlement to degenerative joint disease of both shoulders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.D. Jackson, Counsel REMAND The veteran had active duty from July 1956 to April 1962. The RO in a May 1999 rating action denied service connection for degenerative joint disease of both shoulders and hands. There has been a significant change in the law during the pendency of this appeal.",
"On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the VA with respect to the duty to assist, and supercedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000). See also Karnas v. Derwinski, 1 Vet.",
"App. 308 (1991). Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, ___ (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App.",
"384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Accordingly, this case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied.",
"2. If the benefits sought on appeal remain denied, the appellant and the appellant's 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 a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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 appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 Supp. 2000) (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. MARY GALLAGHER Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000)."
]
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